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Case for sentencing guidelines

Monday, 30 April 2012 08:50am

©The Star (Used by permission)
by SHAILA KOSHY

Disparity in sentencing may be overcome if there are guidelines to help judges decide on the appropriate sentence to reflect the crime committed.

I AM a great believer in the independence of the judiciary but some days, I wonder what the criminal justice system is trying to tell us from the sentences it hands out.

On April 13, a former ice-cream seller pleaded guilty in a magistrate's court to stealing a can of tuna and a drink from UO Superstore in Jalan Tuanku Abdul Rahman in Kuala Lumpur.

Shaiful Ngatiman, 30, got three weeks' jail but no fine as he told the magistrate he had no money to pay and no one to do so for him either.

Poverty is no excuse for committing a crime. Even the many Kedai Rakyat 1Malaysia that have popped up require the use of money.

I imagined Shaiful amending this adage to reflect his socio-eocnomic status: Give a man a fish and he will eat for a day; teach him to fish and he will eat the rest of his life; if you get neither fish nor a lesson in fishing, stealing a can of tuna might have to do for today.

Ten days later, a former Kedah Football Association accounts officer pleaded guilty to three counts of falsifying documents in 2007 so he would receive RM76,026 in salaries meant for 14 Super League players.

The Alor Setar Sessions Court judge slapped Izhan Abdullah Sani, 45, with a total of RM19,000 in fines and a day's jail for each charge.

He ordered the jail sentences to run concurrently so Izhan only got one day that generally entails waiting in court until the fine is paid or cooling the heels in the prison office before going home at 5pm.

I guess the saying “Don't do the crime if you can't do the time” doesn't apply to white collar crime.

This rankles. Are we telling society, if you steal, make sure it's a lot?

Shaiful's crime involved going into a store, bagging a can of tuna and a drink and getting caught by the security guard as he left without paying.

He was charged in court three days later. Hardly any time or money wasted on his case.

In comparison, Izhan forged salary slips and falsified a statement of payments. The Malaysian Anti-Corruption Commission investfgated and charged him almost five years later.

Shaiful's theft would have cost the superstore a loss of RM10 if he had escaped. Izhan betrayed a position of trust and would have got RM76,000 if the bank had not been suspicious.

In the end, he only made off with two months' salary totalling some RM12,000. Is that why he only got one day?

Then again, the courts had imposed one-day prison sentences on corporate honchos in a number of two-digit million-ringgit Secu-rities Commission cases in 2010.

In 2011, then Chief Justice Tun Zaki Azmi had to remind his colleagues: “Just because it is a white collar crime, it does not mean one should not be sent to prison.

“Money is nothing to a millionaire. But a small fine to a kampung man in Gua Musang may be a sufficient deterrent.”

Soon after, some courts began imposing “real” jail time.

But is the Kedah case a sign that it's back to a rap on the knuckles?

Former Bar president Ragunath Kesavan says the trend in Europe is to punish white collar crime more severely.

He notes that here, even when such offenders are whipped, a lighter cane is used.

Retired Court of Appeal judge Datuk Shaik Daud Ismail, who used to speak on sentencing to subordinate court judges when he was in office, said Sessions Court judges and magistrates should keep track of what sentences were being meted in the lower courts.

“If they do so, they will know how to balance the individual circumstances of the case and the public won't have the perception that if you're going to steal, it's better to steal large amounts.”

Criminal law practitioner Datuk V. Sithambaram calls the disparity in sentencing between “regular” and white collar crime shocking.

He says judges should give reasons when they hand down a sentence so the public can understand it better.

“Someone who steals to pay her mother's hospital bills is clearly different from one who steals to go off on a holiday - one is pushed by socio-economic factors and the other by greed.

“That's why the Bar Council has advocated a Sentencing Council, which will provide guidelines for sentencing for each offence.

“We may not be able to overcome disparity completely but we can get closer to what appears to be justice.”

The United States has had a Sentencing Commission since 1984 and Britain set up a Sentencing Council in 2009.

There are those who argue that guidelines issued by such bodies impinge on a judge's discretion, that jurisprudence should be a judge's guide.

But Bar president Lim Chee Wee says guidelines would help judges “decide on the appropriate sentence to reflect the crime committed and proportionate to the seriousness of the offence”.

He replies in the affirmative when asked whether they have approached the judiciary, adding the council has tasked Criminal Law Committee chairman Rajpal Singh to study the proposal.

Maybe the Attorney-General's Chambers and other stakeholders should get involved as well.

The general principles of sentencing are not just for deterrence, public protection and retribution but also rehabilitation.

I wonder if Shaiful and similar offenders get to learn some skill in prison so that when they return to society they can find work and not feel compelled to steal to eat.

The system would be failing us as a society if it didn't.

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