The Different Types Of Sentencing In Criminal Law

If a person is found guilty of a crime, the judge has the discretion to impose a sentence or a punishment based on what is allowed in a statute, such as the Penal Code. Today, we will explore some of the punishments or sentences that a judge could pass in sentencing a person or offender who is found guilty of a crime.

Imprisonment

As the name suggests, imprisonment means putting a person behind bars for a certain amount of time. The imprisonment term is dependant on the crime that is committed and the legislation that governs the crime. Below are three forms of imprisonment that is still observed in the malaysian judiciary system:

Imprisonment for life

Imprisonment for life, in most circumstances, means that a person will be imprisoned until they pass away naturally. However, imprisonment for life can also mean being imprisoned for a period of time, usually from 20 – 30 years, depending on the legislation that governs such crime.

Imprisonment for a fixed period

Imprisonment for fixed periods are imprisonment terms that usually does not exceed 20 years. This also applies in the situation whereby the person is sentenced to multiple offenses in one trial. The court can order those sentences to run concurrently or consecutively (depending on the facts of each case) provided that the total sentencing period does not exceed 20 years. For example:

1. If the offense is punishable with imprisonment and the maximum term does not exceed 6 months (as prescribed in CPC) – a person will be imprisoned with the maximum term, depending on the CPC.
2. If the offense is punishable with imprisonment and the maximum term exceeds 6  months but is less than 2 years- the maximum imprisonment term is 6 months.
3. If the offense is punishable with imprisonment and the maximum term exceeds 2 years- the maximum imprisonment tern is 1/4 of that maximum term stated in the CPC. 

Imprisonment in default of a fine

This occurs when a person fails to pay a fine that is prescribed by the court. The Criminal Procedure Code provides a guideline on how a person can be imprisoned if he does not pay the prescribed fine:

1. If the fine does not exceed RM25- the maximum imprisonment term is 2 months.
2. If the fine exceeds RM25 but is less than RM50- the maximum imprisonment term is 4 months. 
3. If the fine exceeds RM50 – the maximum imprisonment term is 6 months.  

Whipping

Whipping is a sentence whereby a person is canned using a thick rattan. There are certain rules are regulations that needs to adhere to when imposing a whipping sentence:

1. Adults cannot be whipped for more than 24 strokes, while youthful offenders i.e. a person who is above 18 and below 21 cannot be whipped for more than 10 strokes, even if the person is convicted in more than one trial; 
2. Whipping can only be inflicted on specified body parts;
3. The rattan used cannot be more than half an inch in diameter. For youthful offenders, whipping shall be inflicted in the way of school discipline with a light rattan;
4. Cannot be done by installments;
5. Cannot be executed on the following group of offenders:
   1. Females;
   2. Males sentenced to the death penalty; and
   3. Males who are above fifty years of age with the exception of certain sentences under the provisions of the Penal Code.
6. Must be done in the presence of a medical officer who must certify that the offender is in a fit state of health to be whipped, and can be stopped by the medical officer during the execution process if he deemed the offender is not in a fit state of health to continue to be whipped. 

In what circumstances (other than it is allowed by the penal code) will the court impose a sentence of whipping? In Ho Kin Luan v Anor v PP, it was held by Thomson CJ that whipping should only be imposed in cases of violence or brutality is committed against another person. However, a whipping sentence can still be imposed in cases where no violence or brutality is committed, provided that the court has given the matter along and deliberate consideration before they impose a whipping sentence. 

Community services

Community services is a sentence that is passed against a youthful offender that requires them to perform work or services for the general public and for the betterment of the general public as a whole. Its primary aim is to rehabilitate the offender. Based on the Code, a youthful offender can be sentenced to a maximum of 240 hours of community service. Apart from that, the court is given the wide range of discretion to determine the nature of the sentence i.e. the period of sentence, the consequences of violating the community service order, the conditions attached to the community service order, etc.   

Death Penalty

In Malaysia, the death penalty is carried out by hanging the offender. Below are examples of offenses that carry the death penalty as a punishment:

1. Murder;
2. Waging war against the ruler of the state/ country;
3. Kidnapping/ abducting in order to murder;
4. Hostage-taking; or
5. Possessing firearms.

There are two situations whereby the death penalty cannot  be applied:

1. If a woman is pregnant at the time a sentence is passed; and
2. If the offender is a child or young person, unless stated otherwise i.e. it is overridden in a legislation. 

It must be noted that at the time of writing this article, the Malaysian government is planning to scrap the mandatory death penalty provision for certain offenses. For such offenses, the government will leave it at the discretion of the court to decide as to whether the death penalty should be imposed.  However, until the changes are approved by parliament, the death penalty still stands.

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