Mandatory sentencing is wrong

Malay Mail
by Lim Chee Wee

MINISTER in the Prime Minister’s Department Datuk Seri Mohamed Nazri Abdul Aziz announced that Section 376 of the Penal Code, which carries a minimum jail sentence of not less than five years and a maximum of not more than twenty years and whipping, for rape, including statutory rape, would be amended.

It would be amended to provide that Section 294(1) of the Criminal Procedure Code, which gives judges discretionary powers to give a lighter sentence to first-time offenders, including binding over, which means no imprisonment, would not apply to statutory rape cases.

Statutory rape means sexual intercourse between a man and a woman under sixteen years of age with or without consent.

Such a knee-jerk reaction of legislative amendment to impose mandatory sentencing, to the two recent controversial decisions, is a wrong approach.

It fails to consider the complexities of sentencing where no two cases are exactly the same, that the two decisions are pending appeal, and sentencing council is a better answer than mandatory sentencing.

The decision in the bowler case is not unprecedented because Australia witnessed a similar result in its case involving Olympic cyclist Mark Jamieson.

Consider the young love situation

There are two competing interests of the criminal law, one being its protective role in protecting the emotional and physical wellbeing of children and the other is unnecessary or arbitrary interference in the private lives of young people.

This amendment fails to consider young love (Romeo and Juliet) relationships, such as between two 15-year-olds, or between a 15-year-old and an 18-year-old. Whilst the 15-year old may be sent to rehabilitation school, the 18-year-old will go to jail.

The young love situation is recognised in England and Wales where the Crown Prosecution Service (CPS) Legal Guidance on the Sexual Offences Act 2003 (SOA) does explicitly state, “that prosecutors may exercise more discretion where the defendant is a child” and cites Lord Falconer in Parliament stating, “where sexual relationships between minors are not abusive, prosecuting either or both children is highly unlikely to be in the public interest”.

The public interest requires the prosecution of an offence of unlawful sexual intercourse with a girl under 13, unless exceptional circumstances exist.

The CPS will have regard to:

The age of the defendant will be highly relevant. Even if the defendant is over 24, a prosecution may not be in the public interest if he had reasonable cause for believing that the girl was over 16.

The relevant ages of the parties;

The emotional maturity of the girl and whether she entered into a sexual relationship willingly;

The relationship between the parties and whether there was an existence of a duty of care or breach of trust (refer to the section on Abuse of Trust in Sexual Offences Act 2003, elsewhere in Legal Guidance).

IN summary, a man who is considerably older than the girl is likely to be prosecuted, especially if he owed her a duty of care; whereas it may not be necessary to prosecute a young man with whom the girl has been having a consensual relationship.

Baroness Hale said this in a House of Lords decision R v G (2008) UKHL (UK House of Lords) 37 involving statutory rape, which is a stern warning to men:

“Every male has a choice about where he puts his penis. It may be difficult for him to restrain himself when aroused but he has a choice. There is nothing unjust or irrational about a law which says that if he chooses to put his penis inside a child who turns out to be under 13 he has committed an offence (although the state of his mind may again be relevant to sentence) ... in principle, sex with a child under 16 is not allowed.

“When the child is under 13, three years younger than that, he takes the risk that she may be younger than he thinks she is. The object is to make him take responsibility for what he chooses to do with what is capable of being, not only an instrument of great pleasure, but also a weapon of great danger”. (Para 46).

Sentencing council promotes consistency

The four aims of sentencing are retribution, deterrence, rehabilitation and incapacitation.

In attempting to achieve these aims, the established judicial principles of sentencing include that the court shall pass a sentence that is proportionate to the offender’s degree of culpability and consistent with other sentences for similar offences.

Consistency and proportionality of sentencing are the two most difficult aspects of sentencing and as both history and recent events demonstrate.

One of the most common ways of resolving this dilemma and achieve consistency in sentencing is the establishment of a sentencing council which would promote consistency by having guidelines for judges to decide on the appropriate sentence to reflect the crime committed and proportionate to the seriousness of the offence.

The sentencing guidelines for individual offences set out sentence ranges reflecting different levels of seriousness and within each range, a starting point for the sentence. The guidelines also provide guidance on factors the court should take into account that may mean a more or less severe sentence should be imposed.

The jurisdictions which have it include England and Wales, Scotland and Australia (New South Wales and Victoria).

The Sentencing Council for England and Wales promotes greater consistency in sentencing, whilst maintaining the independence of the judiciary, produces guidelines on sentencing for the judiciary and aims to increase public understanding of sentencing.

The composition of these councils includes judges, prosecutors, civil societies, defence lawyers and academics.

LIM CHEE WEE is the Malaysian Bar president.