Assalamualikum Waramatullahi Wabarakatuh
The Honourable Dato’ Azahar Mohamed, Judge of the Court of Appeal,
Mr. Lim Chee Wee, President of the Malaysian Bar Council,
Members of the Malaysian Bar Council,
Representatives from the Attorney General’s Chambers and the Judiciary,
Ladies and gentlemen.
1. Before I begin, I wish to take this opportunity to thank the Malaysian Bar Council for inviting me here today to deliver this address. I am deeply honoured by this invitation.
2. I wish to congratulate the Malaysian Bar Council for its initiative to organise this dialogue session which brings together experts in this field and all related parties such as the Judiciary, the Attorney General’s Chambers and members of the Malaysian Bar to discuss the proposal to establish a Sentencing Council in Malaysia.
3. As we all know, the idea of a Sentencing Council is not a new one, as it has been implemented in other countries such as the United States of America, Australia (for New South Wales and Victoria), and also England and Wales. In Malaysia, as we have yet to set up a Sentencing Council, sentencing is at the absolute discretion of the courts which perform this responsibility in accordance with its judicial wisdom. For purposes of check and balance of sentencing practices, the superior courts have been empowered to revise or review decisions of lower courts which are not appropriate. It is hoped that the establishment of a Sentencing Council will reduce the necessity to revise or review sentences meted out.
4. I firmly believe that a dialogue session as the one organised today will be beneficial for us all to rightly understand the actual implementation and implications of a Sentencing Council as the time is now right for Malaysia to seriously consider the setting up of a Sentencing Council to enhance the administration of justice.
Ladies and gentlemen,
5. The general purpose of establishing a Sentencing Council is to reduce the disparity of sentences meted out by the courts while at the same time respecting the independence of the Judiciary.
6. The Sentencing Council should only serve an advisory function and should not be viewed as a body designated with powers to review the decisions of the courts.
7. As practiced in some countries, a Sentencing Council develops guidelines to assist judges in the practice of sentencing.
Ladies and Gentlemen,
8. There are many reasons we can think of in deciding to set up a Sentencing Council, but first and foremost on our minds will be to reduce the disparity of sentences among courts of concurrent jurisdiction.
9. The objective of sentencing is to ensure that justice is provided to all, including the victim and perpetrator of a crime. The sentence should be appropriate to the crime committed.
10. With this in mind, it is acknowledged and accepted that that there cannot be fixed sentences in respect of a crime and courts are given the flexibility to determine the appropriate sentence taking into consideration the facts and circumstances of the case as well as the mitigating and aggravating factors in each case. However, the differences in sentences meted out should not be of such disparity so as to erode public confidence in the criminal justice system of our country.
11. Although legislation do provide for the punishment that could be meted out in respect of the offences committed, the meting out of appropriate punishment is not an easy task. This heavy burden on the Courts is best summed up by Dato’ Ho Mooi Ching in her book “Sentencing Practice in Malaysia” where the following was quoted:
“In the Malaysian context, where no sentencing guidelines are issued by any authority and there is a paucity of guideline judgments, sentencing can be a most challenging task facing the criminal court, more so when the sentencer is inexperienced and has little access to resources, as magistrates in outlying magistrate’s courts often are.”
12. With a Sentencing Council in place to provide guidelines for sentencing, a more consistent sentencing practice can be formed and this will promote greater public confidence in the criminal justice system.
13. Public opinion is important and the Judiciary should play its role to ensure that public confidence in the administration of justice is maintained.
14. I wish to humbly quote the decision by Justice McHugh in the case of Markarian v The Queen (2005) 215 ALR 213, where the following was observed:
“Public responses to sentencing, although not entitled to influence any particular case, have a legitimate impact on the democratic legislative process. Judges are aware that, if they consistently impose sentences that are too lenient or too severe, they risk undermining public confidence in the administration of justice and invite legislative interference in the exercise of judicial discretion. For the sake of criminal justice generally, judges attempt to impose sentences that accord with legitimate community expectations.”
15. Sentencing Council thus can play a role in forging a link between the views of the general public and the decisions on sentences made by the courts.
Ladies and gentlemen,
16. The establishment of a Sentencing Council therefore will function to reduce the disparity in sentencing by providing guidelines to assist the courts in deciding on the right sentence.
17. I am of the opinion that with guidance from the experts and also from the study and research that is being conducted into this matter, a meaningful outcome can be gained for the benefit of everyone.
18. It is my hope that the dialogue sessions being conducted for the next two days can shed light on what we can foreseeably expect with the establishment of a Sentencing Council and how it can assist in the administration of justice, to further enhance the protection of the rights of every person in Malaysia.
19. With this in mind I wish all of you the very best and I look forward to a productive return from the sessions planned over the next two days.
Wabillahi taufik walhidayah,
Wassalamualaikum Warahmatullahi Wabarakatuh.
YB Dato' Seri Mohamed Nazri Abdul Aziz
Minister, Prime Minister's Department
5 Mar 2013