What is the purpose of a heavy sentence when it is an almost forgone conclusion that an offender who completes his sentence is very likely to return to a life of crime because of their rejection from society?
Recently, the Chief Justice Tun Zaki Azmi, the highest ranked judicial officer of Malaysia, reminded judges and judicial officers alike to impose stiffer sentences as a deterrent to reduce the crime rate in Malaysia. In a way, the reminder by the Chief Justice is sure to find resonance with many members of the public because it is a reflection of the common prevailing view. It seems generally accepted that there is a direct relation between the imposition of heavier sentences and the reduction of crime.
It is a generally understood that there are four purposes in meting punishing a criminal.
Firstly, punishment as a form of retribution, or an eye for an eye where the victim and his family are avenged by the State for the offence of the offender.
For instance, a person who commits murder would be given the death sentence as he deprived the life of another. By imposing a death sentence, the death of the victim is avenged and the State discharges its obligation to society as its guardian.
Secondly, punishment as rehabilitation. Here the sentence imposed is to enable the offender an opportunity to be rehabilitated and returned to society as a responsible law-abiding citizen person. Drug offenders are sent to prison or rehabilitation centres to rehabilitate them to return as participating and economically productive members of society.
Thirdly, punishment to incapacitate. In this context, the sentence would have to incapacitate the offender from repeating his offence. There is a tendency to impose a lengthy prison sentence on a sex offender so he would be incapacitated from repeating his offence.
Lastly, punishment as a deterrent be it general or specific. General deterrence seeks to discourage other members of society from committing an offence while a specific deterrence seeks to discourage the convicted offender from repeating his crime.
I find great difficulty in accepting the view that a heavy deterrent sentence would deter the offender or society at large from committing or repeating an offence. There is no conclusive finding anywhere in the world that a heavier sentence has a deterrent effect and results in the eventual reduction of crime. What is obvious is that a heavier sentence does not necessarily result in the reduction of crime. We do not need to go far to see this.
In Malaysia penalties for offences has steadily increased over the years by way of various amendments to penal laws such as the Penal Code and the Dangerous Drugs Act 1952. The courts have also steadily imposed heavier sentences over the same period. A noticeable example of this would be in relation to sexual offences.
Despite the Courts imposing heavier prison sentences and whipping for sexual offences, it is still prevalent if not increasing in society each year. What is of greater concern is that the type of sexual offences committed is becoming more perverted and violent. This suggests that imposing heavy sentences does not have a deterrent effect which was intended.
Furthermore, a stiffer sentence would not have a deterrent effect because a heavier sentence would have no or little effect on offences which were committed on the spur of the moment such as a traffic offence. It is doubtful whether an offender who commits an offence on the spur of the moment would have thought about the pros and cons of his offence, the cost of his offence and the sentence which might result before he committed the offence in the first place.In such a situation, a heavier sentence serves no deterrent purpose as compared to an offence committed with pre-meditation such as robbery, for instance.
Apart from that, proponents for heavier sentences seem to forget that each case is different and presents a different set and circumstances peculiar to each individual case. Hence, the sentence would not have any meaningful effect if a stiff sentence is imposed all over the board in the name of deterrence. For instance, a person accused of theft could well be a first time offender. In such a situation, should the court impose stiff sentence for deterrence purpose or should the court mete out a lesser sentence?
Besides this, I am genuinely concerned that a heavier sentence would have a counterproductive impact on the offender himself. A heavy sentence is generally understood to mean that an offender would be spending a long time behind bars. It is already bad enough that we don’t have enough prisons in Malaysia. The existing ones are plagued with overcrowding and poor maintenance so sending more people to prison would only result in the overcrowded prisons being dangerous.
I doubt that such a condition would allow the offender to be deterred from committing an offence. At most, the deterrence is only physical i.e. it is only the prison bars which are stopping the offender from committing an offence. There is no change in attitude where he feels remorse and resolves to improve his ways. As a result, it is no surprise that a high percentage of offenders repeat their offences upon release.
This development should not come as a surprise to us. It is inevitable that offenders meet up with other offenders while in prison and end up being a more refined criminal instead of responsible citizen. The problem is compounded by the fact that we have not clearly defined the policy to deter an offender from repeating his offences or enable him to lead a meaningful life once he finishes serving his sentence. Regrettably the government have not understood the reality that a stiffer sentence has little or no effect in deterring a potential offender from committing an offence. While efforts are taken by some private organizations to address this issue, it is insufficient due to the high number of prisoners in Malaysia and the fact that the efforts by the private organizations cannot possibly cater to the needs of all the prisoners.
Apart from that, our society does not readily forgive offenders who complete their sentences. Often they are looked down upon and viewed with suspicion by society at large. I can understand this. It is a natural reaction to harbour distrust for those who have breached the norms of society. Hence, it is no surprise that ex-convicts have a hard time getting back into society. Often they are shunned or rejected once they have completed their sentence. Therefore in the context of society, what is the purpose of a heavy sentence when it is an almost forgone conclusion that an offender who completes his sentence is very likely to return to a life of crime because of their rejection from society?
The practise of imposing heavy sentence as a deterrent sends the wrong signals to the courts and often translates into heavier sentences being imposed across the board as a general rule. Though this may satisfy the desires of some segments of society and the victim; the courts are under a duty to take into account the unique circumstances of the offender in order to achieve fairness. To impose a deterrent sentence when there are strong mitigating factors for a lighter sentence is a travesty of justice. I would not be surprised that the courts are more concerned with satisfying the public’s and the victim’s thirst for vengeance rather than ensuring that the sentence would truly prevent the offender committing a similar offence again.
A concerted effort by all of us citizens is accordingly essential if we sincerely desire to witness a reduction in the crime rate in Malaysia. The deterrence and reduction in the crime rate does not lie solely with the sentence meted out by the court. There are many other factors that contribute to this – an incorruptible and efficient police force, better designed urban areas, and more citizens to be more vigilant and involved with the prevention of crime, for example. For deterrence of crime to really work, it requires the efforts of all members and organizations in society. This would require a concerted effort that not only involves the Courts and the government but also other agencies, bodies and the society at large as well. The failure to seriously and comprehensively address the issue of crime, and to merely sensationalize it, would only lead to disasterous results in a bid to reduce the crime rate.
 R v Davies  67 Cr App R 207
 Lord Woolf, A New Approach to Sentencing  2 CLJ XXXVII
 Abdul Hadi Zakaria,Crime Prevention: A theoretical exposition  2 CLJ XXV
Cyril masih mengharapkan yang harinya akan datang di mana Badan Kehakiman menjadi sebuah badan yang diterajui seseorang seperti PN Bhagwati, Earl Warren ataupun John Marshall yang bukan sahaja berani membuat keputusan menentang kerajaan tetapi masih mampu menjaga intergriti Badan Kehakiman.
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