Articles & Judgments Criminal Law The Current Form of Sentencing is Outdated - Time for Reform by V. Sithambaram 
| The Current Form of Sentencing is Outdated - Time for Reform by V. Sithambaram |
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| Thursday, 17 November 2005 05:00pm | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
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THE CURRENT FORM OF SENTENCING IS OUTDATED - TIME FOR REFORM? V. SITHAMBARAM, BARRISTER, (LINCOLN’S INN)
Introduction Sir Leon Radzinowicz, the father of criminology, had remarked in one of his books that, “much good can be achieved in promoting progress and re-adjustments in the penal system, not so much by putting on the agenda of reform huge, ambitious schemes of “reconstruction” but by coming to grips with a series of much more limited and much more precisely defined topics in response to certain obvious, yet not adequately satisfied needs.” What I am going to say, I hope, will reflect on Sir Leon’s wise comments. Sentencing Principles A sentence is a final order disposing of a case in court. It is a judgment of a criminal court stating the penalty imposed on a person who has pleaded guilty or has been convicted of an offence. There are four main aims of sentencing - deterrence, rehabilitation, prevention and retribution. Deterrence A deterrent sentence aims to deter the accused from committing offences in the future and also others from committing crime. Rehabilitation The rehabilitation approach to sentencing proclaims that the principal rationale of sentencing is to achieve the rehabilitation of the offender. This aim of sentencing regards offenders as those who are in need of help and support and utilises sentences other than imprisonment where the circumstances permit. Prevention The preventive or incapacitative aim of sentencing seeks to deal with offenders in such a way as to prevent them or make them incapable of offending for substantial periods of time. Lawton LJ in R v Sargeant[2] noted that “Unfortunately, it is one of the facts of life that there are some offenders for whom neither deterrence nor rehabilitation works. They will go on committing crimes as long as they are able to do so. In these cases the only protection which the public has is that such persons should be locked up.” Retribution The retribution aim of sentencing seeks to retaliate against the wrongdoer for what he has committed. An offence committed is viewed as an offence against society and the community, and in return society and the community through the courts impose punishments or sentences. In Malaysia, sentences reflect a combination of several or all of the above aims, thus resulting in an eclectic approach to sentencing as opposed to a single uniform sentencing strategy. Under the eclectic approach there are no formally fixed aims in advance, but sentencers pick and choose which sentencing aim they wish in the particular case[3]. Wan Yahya J in Public Prosecutor v Safian bin Abdullah & Anor[4] stated that “sentencing offenders is ......... a complex discerning process, which depends not on the use of a common mathematical yardstick but on various considerations of facts and circumstances relating to the offence, the offender and public interest.” The Death PenaltyIn 2003, the Governor of the US State of Illinois commuted the death sentences of 167 death-row prisoners to life imprisonment instead. It was a highly controversial decision, but it should not have seen as surprising. States and countries around the world are slowly but increasingly abandoning the death penalty as an instrument of punishment. The State of Illinois had instigated a thorough review of the death penalty three years earlier, after it was found that 13 people had been wrongly convicted. The whole system, it was concluded, was “haunted by the demon of error.” According to Amnesty International, 76 countries and territories have stopped using the death penalty completely. 14 countries have abolished the death penalty for all but exceptional crimes and 20 countries can be considered abolitionist in practice. This means that they retain the death penalty in law but have not carried out any executions in the past 10 years. It was revealed that the death penalty remains most entrenched in East Asia. China, it was reported, has developed a ‘mobile execution vehicle’ which distributes lethal injections to death-row criminals so that executions can be carried out without the usual trip to the execution grounds. In Malaysia, the death penalty still exists and is used. Indeed people are constantly exhorting that its use should be extended, constantly saying that it is the appropriate punishment for even more crimes. You would recall statements made recently, for example in relation to the issue of incest and rape. In Malaysia, the death penalty appears to be entrenched permanently in the law. Under Malaysian law, the death penalty is mandatory for some offences and discretionary for others.
Table 1
Table 2 Society views the death penalty as a form of retribution and deterrence. Retribution in the sense that the taking of a criminal’s life allows society to show convincingly that certain crimes will not be tolerated, and deterrence in the sense that potential criminals will think twice before breaking the law for fear of losing their life. The death penalty is also viewed as a form of justice for the victim and their families. Although the victim and the victim’s family cannot be restored to the status which preceded the crime, it is nevertheless considered that an execution brings closure to the criminal and closure to the ordeal for the victim’s family. However, some criminologists maintain that the death penalty has the opposite effect : that is society is brutalized by the use of the death penalty, and this increases the likelihood of more death penalty related offences. Studies have shown that states in the United States that do not employ the death penalty generally have lower murder rates than states that do. The same is true when the United States is compared to countries similar to it. The United States with the death penalty has a higher murder rate than countries of Europe or Canada, which do not use the death penalty. Studies have also shown that many victims families denounce the use of the death penalty. Using an execution to try to right the wrong of their loss is an affront to them and only causes more pain. For example, Bud Welch’s daughter, Julie, was killed in the Oklahoma City bombing in 1995. Although his first reaction was to wish that those who committed this terrible crime be killed, he ultimately realized that such killing “is simply vengeance, and it was vengeance that killed Julie........ vengeance is a strong and natural emotion. But it has no place in our justice system.”[5] It has also been argued that the death penalty is not just, as innocent persons may be condemned to death and execution of the death penalty is irreversible. DNA profiles have exonerated many of the condemned in death-rows in the United States. The judicial system cannot be said to be foolproof. It is manned by fellow humans who are not infallible. There is every possibility, nay a probability, of a person being hanged for a crime he did not commit. Judicial CaningJudicial Corporal punishment by caning is in widespread use for males in Malaysia. Thousands of canings are ordered each year. Men are not only caned for serious crimes but also for non-violent offences. In some cases, caning is a mandatory punishment. In Malaysia, a prisoner is usually stripped naked and shackled standing upright by strong leather straps to a A-frame. He is then punished by a well-built warder welding a flexible four-foot length of rattan. Corporal punishment as a judicial penalty was abolished in England, Wales and Scotland in 1948 and in India in 1955. In all parts of than Malaya, however, as in Hong Kong, caning was retained as a primary penal sanction. In Singapore, newly independent from British rule in 1965, the scope of judicial corporal punishment was progressively increased by legislation in 1966, 1970, 1973, 1975, 1984, 1988, 1989, 1990 and 1993, providing for its use in a greater range of offences, often requiring its mandatory imposition, and on occasions increasing the minimum number of strokes[6]. Malaysian criminal law prescribes caning as an additional punishment to imprisonment for those convicted of crimes such as narcotics possession as well as some non-violent crimes such as criminal breach of trust. Judges routinely include caning in sentencing those convicted of such crimes as kidnapping, rape and robbery. In Malaysia and Brunei, the local courts do have some caning powers over juveniles. Ordinary Magistrates Courts are vested with this power. The newly introduced Children’s Courts have been given the power to give boys up to 10 strokes with a light cane and these canings must be given by the boy’s parent or guardian within court premises. One such case which was reported involved a boy of 15; the court ordered his father to give him four strokes of the light cane, and this was done immediately.[7] Caning is usually confined to males aged between 16 and 50. However, Malaysia has for sometime been discussing abolishing the upper age limit for caning, at any rate for rapists, on the grounds that if a man is fit enough to commit rape, he is fit to be caned. Caning is not restricted to local citizens. Western visitors are also caned. In Singapore, the best-known example is that of Michael Fay who in 1994 was caned for vandalism. In Malaysia, too, there have been high-profile cases of Westerners receiving caning sentences, especially for drug related offences. They include the New Zealander, Aaron Cohen and Australian Robert Symes who received six strokes in 1982 for drug-trafficking. Unlike juvenile canings, adult caning is never or almost never imposed on its own, but is in addition to a prison sentence. Sometimes a male and a female both commit the same offence and are equally culpable. The female may get a prison sentence but the male will have to suffer a caning in addition to the jail term. In Malaysia, 24 strokes is the maximum. However, the 24 strokes maximum is per infliction and per warrant, not per trial. If a prisoner is charged under several warrants, he has to serve the combined number of strokes. He can take at the most 24 strokes each time. When the wounds are healed, he has to endure the painful experience all over again. In August 2004, a rapist was sentenced to 50 strokes in total[8]. The immediate physical effects due to the severity of the canings have been reported by the eyewitnesses and others. The Singapore Bar Association in its report revealed, “the blows are applied with full force of the jailer’s arm. When the rattan hits the bare buttocks, the skin disintegrates, leaving a white line and then a flow of blood.” The Singapore Director of Prisons, in a press conference in 1974 said that most prisoners put up a struggle after each of the first three strokes. He continued, “after that their struggles lessen as they become weaker. At the end of the caning those who receive more than three lashes are usually in a state of shock. Many will collapse, but the medical officer and his team of assistants are on hand to revive them and apply antiseptic to the caning wounds. Many will pretend to faint, but they cannot fool the prison doctor whose presence is legally required. The skin at the point of contact is usually split open and, after three strokes, the buttocks will be covered in blood. Malaysian judicial canings have provoked first-person descriptions. Aaron Cohen recalled his caning :- “I got six. Its just incredible pain. More like a burning - like someone sticking an iron on your bum. That’s the sort of feeling. Pain - just ultimate pain. The strokes come at a rate of one a minute - but it seemed like a lifetime to me. I waited and waited for the first one and as soon as I let my breath out - “baam”. Afterwards my bum looked like a side of beef. There was three lines of raw skin with blood oozing out.”[9] Caning will produce huge red welts and permanent scars. In some instances, it is also said to have caused impotence. The cane marks are indelible and these will be a source of humiliation to the prisoner for the rest of their lives. These canings are very severe and are criticised by such organisations as Amnesty International and the UN Human Rights Committee. The UN Human Rights Committee considers whipping and other forms of corporal punishment to constitute cruel, inhuman or degrading punishment and contrary to human rights law. The UN Committee against Torture has called for the abolition of judicial corporal punishment and the UN Special Rapporteur on Torture has stated that “corporal punishment” is inconsistent with the prohibition of torture and other cruel, inhuman and degrading treatment or punishment. Chief Justice Mahomed of the Namibian Supreme Court in Ex-Parte Attorney-General Namibia : In Re Corporal Punishment by Organs of State[10], a case which outlawed corporal punishment by organs of state as cruel and inhuman in interpreting the Constitution stated that, “value judgment which requires objectively to the articulated and identified, regard being had to the contemporary norms, aspirations, expectation and sensitivities of the Namibian people as expressed in its national institution and its constitution, and further having regard to the emerging conscience of values in a civilized international community.” Judicial caning is clearly intended to be a humiliating experience. Former Prime Minister Lee Kuan Yew, founding father of modern Singapore, introducing mandatory caning for vandalism in 1966, told Parliament :- “If the offender knows he is going to get three of the best, I think he will lose a great deal of enthusiasm, because there is little glory attracted to the rather humiliating experience of having to be caned.” Caning is greatly feared by men who face it. One newspaper article stated :- “In the Singapore context, caning is the most dreaded form of punishment. If proof be needed, I need only recall the very many instances when young and middle-aged offenders, under caning orders, begged the Appeal Court in vain to suspend them and give longer prison terms instead. But until Parliament changes the law, there is nothing that can be done.”[11] In my 27 years of criminal practice, I can confidently attest to the situation above. As illustrated above judicial corporal punishment is indeed a cruel and degrading form of punishment. The imposition of caning has certainly not deterred the commission of offence, take for example, the offence of rape which has been steadily increasing in our country. Perhaps its time for Malaysia to subscribe to Article 5 of the Universal Declaration of Human Rights[12] and do away with judicial caning as a form of sentencing in our country. Imprisonment For Life or Natural Life Sentences Generally, imprisonment for life or life imprisonment means imprisonment for 20 years. However the Penal Code (Amendment and Extension) Act 1976 replaced the words ‘imprisonment for life’ appearing in a number of sections under the Penal Code with the words ‘imprisonment for a term which may extend to 20 years’. The phrase ‘imprisonment for a term of 20 years’ is not synonymous with the phrase ‘imprisonment for life’. The amendment Act did not affect Chapter VI of the Penal Code[13], under which a sentence of imprisonment for life may still be imposed. Imprisonment for life under Chapter VI of the Penal Code means imprisonment until death of the person on whom the sentence is imposed. Apart from Section 130A of the Penal Code, there are other specific penal statutes which define the phrase ‘imprisonment for life’ to mean imprisonment for the duration of the natural life of the person sentenced. Examples of these statutes include the Arms Act 1960 and the Firearms (Increased Penalties) Act 1971. Theoretically, the aim of imprisonment is to protect society by separating offenders who are a serious threat to the lives and personal security of members of the community. The other aim of imprisonment is to condemn behaviour that society considers to be highly disgraceful and which constitutes a serious violation of basic values. As stated earlier, traditionally, the purpose of imprisonment have been identified, as, rehabilitation, deterrence, retribution and incapacitation. Depending on the seriousness of the crime, when an individual has committed a crime against the community, he is removed from it for its own protection. According to Rabie and Strauss (1994 : 253),”imprisonment is seen more and more as a harsh and drastic punishment to be reserved for callous and impertinent characters.”[14] Up to now, imprisonment throughout its history has been considered as one of the measures of social control imposed by organised society upon a transgressor of its norms. In South Africa, imprisonment is used as the key element in the system of social control. This is true in the general sense that a very high proportion of the total population of the Republic South Africa is incarcerated, either awaiting or as sentenced prisoners. South Africa has one of the highest prison population per capita in the world. As of December 1994, the total number of prisoners held was in the range of 113,856 prisoners. In Malaysia, as at 2002, there are a total of 83 prisoners serving imprisonment for life. 16 serving natural life sentences, 7 being detained in prisons at the pleasure of the Ruler and a total of 66 prisoners who are on death-row.[15] Prisons in Malaysia are seriously overcrowded. As at 2004, the Malaysian Prisons Department Statistics show that there are a total of 42,183 prisoners in Malaysian prisons, with more than 10,000 prisoner accommodated well beyond the handling capabilities of the prison system. Overcrowding of prisons has a negative effect on the living conditions of prisoners, because the normal space and floor is reduced. It also causes a heavy burden being placed on the rest of the prison infrastructure. Overcrowding has the negative impact on the human detention and treatment of prisoners. Besides, overcrowded prisons also pose more disciplinary problems and are high security risks. Imprisonment does not always have a positive influence on the prisoners themselves. The prison environment considerably affects behaviour of the prisoner and also the way in which prisoners are being treated will affect his response to rehabilitation. The relationship between staff and inmates is sometimes a problem because if prisoners feel that the staffs are arbitrary, then a set of stereotype builds up which produces worse control features, worse attitudinal features and less chance of rehabilitation. One other problem with imprisonment is that it is very expensive and it costs a lot of money to keep prisoners. This does not include the indirect costs in some countries, for example, resettlement in the community and the social services costs when children are taken into care. The human reality on this ‘ultimate’ penal sanction was highlighted in a 1995 United Nations paper on life imprisonment.[16] It involves “social isolation, total dependence, suspension of time, prolonged sexual abstinence, loneliness and loss of responsibility, combined with a regimentation and routinisation of life”. Research into the psychological and sociological effects of imprisonment for life has found that it may cause “desocialition and institutionalisation”. In a never ending environment of this type, one can strongly argue that this is an extreme from of punishment that takes “life” in the real sense of the word from a person so sentenced. It has been observed that a crime prevention policy which accepts keeping a prisoner for life even if he is no longer a danger to society would be incompatible neither with modern principles on the treatment of prisoners during the execution of their sentence nor with the idea of the reintegration of offenders into society. The overall objective of the management of life prisoners is their safe release into society once they have served a sufficient period in custody to mark the seriousness of their offences.[17] In Malaysia, some prisoners who have been imprisoned for life or who are serving natural life sentences get pardoned after spending a good 25 to 30 years of their lives in prison. Having spent a good amount of their lives in prison, these prisoners are no longer of use to the society and community upon their release. Prisons do protect society only to the extent that they temporarily restrain offenders who are prone to commit acts of violence, but for other purposes, like deterrence, they are at best ineffective and at worst counterproductive, because prisoners are not being fully utilised whilst incarcerated. Programmes that are in line with development and skills upliftment should be made available to all prisoners in order to upgrade their level of thinking and to promote responsibility. The result of imprisonment sometimes make prisoners reluctant and even unable to obey the rules of a society which treated them so. I believe that we have a prison service that is capable, if given the opportunity, of not merely warehousing prisoners but to send them back into society better equipped to avoid re-offending. A New Approach The effectiveness of a criminal justice system has to be judged by the extent to which it can deter crime and reduce the pattern of re-offending. These questions should be at the centre of the system. Punishment plays an important role in sentencing but however, most countries attach too great on importance to punishment and pay insufficient attention to other objectives of sentencing such as what happens during the period that the offender is being punished and the provisions made for the offender when released from punishment. Furthermore, most of the time, we are concerned with satisfying the public’s and individual victim’s thirst for vengeance rather than seeking to reduce the number of victims. Some argue the death penalty despite being labelled as cruel, prejudicial, unforgiving and open to abuse, is perhaps still needed by society in the gravest of cases of extreme culpability. There has emerged a consistent trend in India to apply a formula, what has come to be known as “the rarest-of-rare cases” formula. The Indian Supreme Court in Surja Ram v State of Rajasthan[18], applying the rarest-of-rest cases formula stated that :- “Such murders and attempt to commit murders in a cool and calculated manner without provocation cannot but shock the conscience of society which must abhor such heinous crime committed on helpless innocent persons. Punishment must also respond to society’s cry for justice against the criminal. While considering the punishment to be given to the accused, the court should be alive to not only the right of the criminal to be awarded a justly and fair punishment by administering justice tempered with mercy as the criminal may justifiably deserve, but also to the rights of the victims of the crime to have the assailant appropriately punished and society’s reasonable expectation from the court for the appropriate deterrent punishment conforming to the gravity of the offence and consistent with public abhorrence for the heinous crime committed by the accused. On the facts and circumstances of the case, we are of the view that the crime committed by the accused falls into the category of rarest- of-rare cases for which the extreme death penalty is justified.” On the other hand, in State of Rajasthan v Baisakha[19], the Rajasthan High Court in coming to the conclusion that this was not a case which fell within the rarest-of-rare case category, held that the ends of justice would be served, having regard to the circumstances, by imposing life imprisonment. Similarly in Om Prakash v State of Haryana[20], the Court had once again to balance aggravating and mitigating circumstances. In that case, the accused killed seven members of a family in a pre-planned murder. He was 23 years old and had no previous conviction. However, the accused and his family members had suffered agony at the hands of the family of the victims : the accused having a cause to be aggrieved for injustice melted out to his family members. The Court held the case was not a rarest-of-rare case and commuted the sentence of death to one of life imprisonment. Perhaps the rarest-of-rare cases formula laid down by the Indian Supreme Court has to be the accepted compromise in the imposition of the death penalty in our society, if we still insist on having it as a form of punishment. Similarly, people who have argued for doing away with prisons have not succeeded in any country. Instead they have lobbied for the use of alternatives to imprisonment. Punishment in the community helps offenders to remain in their natural habitat, that is, community and families and it also helps them to retain their status of being self-reliant and responsible. Alternatives do have a positive and a useful role to play in the criminal justice system. The case of other forms of punishment other than imprisonment should not be viewed as being soft on criminals. Imprisonment sometimes tends to result to recidivism, rather than the rehabilitation of prisoners. A Holistic Approach The United States Model In the United States, programs based on restorative and community justice have proliferated over the past decade. Restorative and community justice represent new ways of thinking about crime. The theories underlying restorative justice suggest that government should surrender its monopoly over responses to crime to those most directly affected - the victim, the offender and the community. Both restorative and community justice are based on the premise that communities will be strengthened if local citizens participate in responding to crime, and both envision responses tailored to the preferences and needs of victims, communities and offenders. Since crime harms the victim and the community, the primary goal of restorative justice is to repair the harm and heal the victim and the community. Community justice suggest that criminal justice agencies change the way they interact with the public, learn to listen to citizens and work together with local people to prevent crime and solve crime-related problems. In the US State of Vermont, a pilot probation program began in 1994. The concept is straight forward. Following an adjudication of guilt, the judge sentences the offender to probation, with the sentence suspended and only two conditions imposed : the offender will commit no more crimes and will complete the reparative program. The Reparative Citizen Board meets with the offender and the victim and together discuss the offence, its effects on victim and community and the life situations of victims and offenders. All participants must agree on a contract, to be fulfilled by the offender. It is based on five goals :- the victim is restored and healed, the community is restored, the offender understands the effects of the crime, the offender learns ways to avoid re-offending and the community offers reintegration to the offender. Theses reparative programs have been proven successful in overcoming minor crimes in the State of Vermont.[21] In New York, they have been piloting with equal success, community courts such as the Red Hook Community Justice Center that are also known as problem solving courts. At Red Hook, they seek to solve the neighbourhood problems like drugs, crime, domestic violence and landlord and tenant disputes by using a single judge who has an array of sanctions and services at his disposal, including community restitution projects, on-site training, drug treatment and mental health counselling. But the Court’s reach goes beyond what happens in the court. It reaches out to the community and engages the community in achieving justice. The tackling of the problems of minor offenders prevents them from becoming serious criminals. In Travis Country, Texas, Ronald Earle, District Attorney, for more than 20 years, is a strong advocate of restorative and community justice. Recognising that people’s normal reaction to crime is anger and fear, particularly if they lack power to influence responses, he believes that this wasted energy can fuel positive changes. This can be done if citizens are empowered and participate in planning and deciding on the response to crime. To promote such participation, he drafted the Texas law that authorize in each county a Community Justice Council and Community Justice Task Force. The task force includes representative of criminal justice agencies, social and health services, and community organisations. With task force assistance, the council consisting of elected officials, handles planning and policymaking and prepares a Community Justice Plan. Many efforts are directed at juvenile offenders. The Juvenile Probation Office offers victim-offender mediation for young people in trouble. For misdemeanours, juveniles may be diverted from court to Neighbourhood Conference Committees. These consist of panels of trained adult citizens who meet with the juvenile offenders and their parents and together develop contracts tailored to the case.[22] States in the United States have also resorted to other approaches such as non-residential sanctions and financial sanctions. House arrest with electronic monitoring is a form of a non-residential sanction which has been implemented in the US State of Ohio. New Zealand has also in place a similar approach. This program allows offenders to serve their sentence at home. Offenders are confined to their own residences and can leave for approved activities such as work, treatment programs or community service. An electronic monitoring system is added to help enforce conditions of house arrest and to ensure heightened supervision with immediate response to violation.[23] Community Services is another form of non-residential sanction. These programs are designed for non-dangerous offenders, in which they participate in unpaid community service activities. By performing community services, offenders give something back to the community for the harm created through a crime. Offenders are assigned to supervised work crews to carry out government or non-profit agency projects. They typically work in nursing homes, schools, and hospitals and shovel snow, chop wood, and pick up garbage on the roadside. Attendance is closely monitored, and non-attendance or non-cooperation is cause for reprimand. The program is different from voluntary community service, in that work is directly supervised by community service personnel. Financial sanctions on the other hand include monetary restitution. This sanction involves paying back victims of the crime for the harm done by the offender. Offenders are required to repay the victim in dollar amounts or services to compensate for direct losses resulting from the crime. The court will decide the time and the amount of payment, the scheduling of instalment of payments and the monitoring thereof. Another form of financial sanctions is by imposing day fines on the offender. This type of sanction requires that offenders pay a specific dollar amount based on daily income and type of crime committed. Taking into consideration of the offender’s ability to pay, the court determines the offender’s daily wage, subtracts allowance for dependents, and multiplies by the number day fine units reflecting the offence gravity. Day fines may be an appropriate penalty for a wide range of non-violent offences and property offences. The United Kingdom Model[24] In the United Kingdom a massive bill (the Criminal Justice Bill 2002) has been introduced in Parliament which will establish a new Sentencing Guidelines Council. The Council’s task will be to create a new code of sentencing guidelines. A sentencer, in passing sentence, will be expected to take its guidance into account. The Council when setting guidelines, shall have regard to :-
There is also in place in the United Kingdom a Youth Justice System. A Youth Justice Board has been established with the principle statutory aim of preventing (rather than punishing) offending. A major reform to the Youth Justice System is the new multi-agency Youth Offender Teams - bringing together police, social services, education, health and probation to deliver a wider range of programs to tackle offending behaviour at the different stages of its development. The South Africa Model[25] In South Africa, the remodeling of community service may be one or more of the conditions of the postponement or suspension of sentence. The South Africa Criminal Procedure Act allows for postponement or suspension of sentence subject to the performance without remuneration and outside the prison of some service for the benefit of the community. A person sentenced to community service has to perform such duties under the supervision or control of an organisation which in the opinion of the court promotes the interest of the community. Correctional supervision on the other hand, was introduced in 1991 as a new form of sentence which attempts to solve some of the problems preserved by community services orders. The aim of correctional supervision is the same as that of community service orders, that of a sentence which is served in the community and not in a prison. The Department of Correctional Services is responsible for monitoring people sentenced to correctional supervision. People serving correctional supervision are subject to measures which they are supposed to follow under strict supervision of correctional supervision official called the probation officer. A probationer may be subjected to do the following :-
Prisoners who are serving terms of less than 5 years or who have less than 5 years left to serve may upon the recommendation of the institutional committee be reconsidered for placement under correction supervision. When a probationer fails to do what is expected under the sentence of correctional supervision, he/she can be brought before a court and sent to a prison. Correctional supervision makes punishment a community responsibility whilst at the same time, it helps the offender stay out of prison. Committal to an institution, another form of sentencing adopted in South Africa and is mainly used for people convicted of alcohol and drug abuse. The court may decide to send offenders to a place or institution for rehabilitation, instead of sentencing them to prison. People sent to such institutions maybe kept for an indefinite period, until they respond positively to the treatment. Conclusion There is a continuous upward pressure, and very rarely any downward pressure, on the level of sentences. Usually, in response to a sensational crime, sentencers tend to impose the maximum sentence allowed by the law on the offender. However, has the imposition of maximum sentences on offenders actually deter them from re-offending? A look at the statistics of Malaysia’s crime index shows that there has in fact been a steady increase in the number of violent crimes as well as crimes against property, despite the imposition of heavy sentences.
Table 3[26] I hope that you will agree with me that the current form of sentencing in Malaysia is in need of a new approach or reform. The sentencing models of other countries referred above can act as a guide. We must of course find tune them to meet our needs. I believe that if the three core objectives of a criminal justice system i.e. (a) to punish, (b) to deter and (c) to rehabilitate is to be achieved, the various components within the criminal justice system should work in co-operation with one another and very community which the offender has offended, be roped into this process, since to maximise public safety and optimise crime prevention, the community must work on equal basis with the government agency representatives and elected officials. Our present form of punishment and sentences has failed to achieve results. Public outcry on the increase in crime is heard daily. Political will to carry out reforms is a must. We must act now to review of our Criminal Justice System. [1] [1981] 1 MLJ 165 [2] [1974] 60 Cr App R 74 [3] Wasik, M. & Taylor, R., Blackstone’s Guide to the Criminal Justice Act 1991, Blackstone Press Ltd., 2nd edition [4] [1983] 1 CLJ 324 [5] http://deathpenaltyinfo.msu.edu/index.html [6] Judicial Caning in Singapore, Malaysia and Brunei by Colin Farrell [7] “Man ordered to cane his son in court over stolen bike,” New Straits Times, 6th December 1997 [8] “A whopping 75 years jail for stepdad”, New Straits Times, 4th August 2004 [9] “Horror of the lash”, New Zealand Truth, 10th October 1997 [10] 1991(3) SA 76 (Nm SC) [11] “Caning – the most dreaded punishment”, Straits Times, 7th September 1974 [12] "No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment" [13] Offences Against The State [14] Rabie, M.A. and Strauss, S.A (1994), Punishment, Johannesburg : Lex Patria Publishers [15] http://www.prison.gov.my/ [16] United Nations, Life Imprisonment, by Institute for Information Engineering at Vienna University, Vienna [17] From Marble to Mud : The Punishment of Life Imprisonment by John Anderson, University of Newcastle, NSW; paper presented at the History of Crime, Policing and Punishment Conference, August 1999 [18] AIR 1997 SC 18 [19] [1999] Cri L.J. 1399 [20] AIR 1999 SC 1332 [21] Sentencing & Corrections : Issues for the 21st Century, September 1999, U.S. Department of Justice [22] Supra, n 23 [23] Intermediate Sanctions Throughout The United States, Kansas Sentencing Commission [24] Speech by Lord Woolf, The Lord Chief Justice of England and Wales at Anglo – Australasian Lawyer’s Society Breakfast, Sydney, Australia, 9th April 2003 [25] Life After The Death Penalty : Different penal options to be considered in the light of the abolition of capital punishment by Mongezi Mnyani *This paper was delivered at the 13th Malaysian Law Conference.
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