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The Bar Council reiterates its view that the crimes of incest and rape constitute very serious offences. Therefore, heavy sentences, commensurate with the gravity of the offences committed, must be meted out to offenders of such crimes.

The Bar Council also reiterates its view that the mandatory minimum sentence currently imposed by the Penal Code and the mandatory maximum sentence of 20 years proposed of late are certainly not the only solution to ensuring that appropriate sentences are imposed by the courts. While it is true that they may be inadequate in some cases, they may also be excessive in others. The importance of allowing Judges to retain their discretion to sentence cannot be over-emphasised. Mandatory minimum sentences and the proposed mandatory sentence of 20 years will totally eliminate the discretion of Judges, which will in effect deprive them of the power to impose any other sentences commensurate with the circumstances of each case. Despite the recent spate of reported rape and incest cases, any change in legislation or policy must help to maintain justice in sentencing at all times. Prosecutors can and should push for heavier sentences for such serious offences. They may file appeals to the High Court if sentences are inadequate. Judges, in turn, should take into account the exacerbating characteristics of the offences and the submissions of prosecutors when imposing sentence. Heavier sentences can be imposed without the necessity of imposing mandatory sentences. In this regard the Bar Council considers the approach taken by the Attorney-General, Dato’ Abdul Gani Patail, in directing his prosecutors to push for heavier sentences for rape and incest, including consecutive jail terms, as being an appropriate alternative.

The Bar Council therefore advocates that Judges be at liberty to decide on consecutive sentences where the seriousness of the offence demands as opposed to being forced to imposed a blanket mandatory sentence in all cases.