Courts ‘inconsistent’, says Bar Council

The Malaysian judiciary appears to be inconsistent when it comes to sentencing offenders, with the underage rape cases going on.

PETALING JAYA: Local courts, according to the Bar Council, seem inconsistent when they throw the book at convicted offenders.

Its president, Lim Chee Wee, said this in light of the underage rape cases that have been grabbing local headlines recently.

“The four aims of sentencing are retribution, deterrence, rehabilitation and incapacitation,” he told FMT.

Lim said that in order to achieve this, established judicial sentencing principles would dictate how an offender would be punished.

It would look at how deserving the offender was of blame, and how consistent the given sentence was with sentences in similar cases.

“Consistency and proportionality of sentencing are the two most difficult aspects of sentencing and as both history and recent events demonstrate, these policies are not often upheld and the inconsistencies are prevalent,” he said.

He said this after being asked to comment on Attorney-General Abdul Gani Patail’s statement on the recent convictions of Noor Afizal Azizan and Chuah Guan Jiu.

Both Noor and Chuah were aged 19 and 21 when they committed statutory rape on their purported girlfriends, who were then aged 13 and 12 respectively.

The duo are bound over for RM25,000 on good behaviour bonds of five and three years each.

To this, Abdul Gani said that rape offenders needed to be severely punished, and that all major factors involving the case as well as the offence’s seriousness had to be considered.

Grounds of judgment

On top of that, Gani said that adults (aged 18 and above) should not take advantage of underaged children, due to maturity reasons, and that even if consent was given by the latter, it had to be questioned.

Though in agreement, Lim said that the controversy surrounding the two cases showed how complex sentencing was, and that both the public and civil society needed to be educated in this matter.

“Often times, comments are made without the benefit of having read the grounds of judgment which is necessary in order to understand all the facts of the case, some or all of which go towards the outcome of the sentence,” he said.

On making sure that sentences were consistent, Lim suggested that Malaysia come up with a sentencing council; a method adopted by developed nations such as England and Australia (New South Wales and Victoria).

This council, he added, would give judges guidelines on how to decide on an appropriate sentence for a given crime.

“The sentencing guidelines for individual offences set out a range of sentences reflecting different levels of seriousness and within each range, a starting point for the sentence,” he said.

Lim added that the guidelines would help to guide a court when a more or less severe sentence would have to be imposed.