MOHD NORGIHAN BIN AWANG v Pendakwa Raya

Case Significance

Illustrates the approach to consecutive sentencing for distinct sexual offences against a child under section 376(3) of the Penal Code, reflecting the seriousness of the conduct and the protection of children.

This High Court decision at Kota Bharu, Kelantan concerns an appeal against sentence in a case of sexual offences committed within a family. The appellant had been convicted in the Sessions Court at Pasir Mas on three charges of raping his stepdaughter, a child, on separate occasions, the relationship being one in which marriage was not permitted under law, religion, custom or usage, so that the offences fell to be punished under seksyen 376(3) Kanun Keseksaan (section 376(3) of the Penal Code), read with the framework of the Sexual Offences Against Children Act 2017. The appeal concerned the sentence, including the direction that the terms of imprisonment run consecutively. The court examined the sentencing under section 282(d) of the Criminal Procedure Code, which provides that a sentence of imprisonment takes effect from the date it is passed unless the court otherwise directs, together with the settled rule that where the offences charged are distinct offences, and all the more so where they do not arise from the same transaction, the sentences will ordinarily run consecutively. The court explained that ordering the sentences to run consecutively served to discourage this type of criminal conduct, to reflect the overall seriousness of the behaviour and to protect children, and cautioned that a judge should not be swayed by emotion but must apply the law. The court found no error in the trial judge's decision that would justify appellate interference, holding the conviction and the sentence to be reasonable, commensurate and just in relation to the appellant's conduct. Accordingly it dismissed the appeal and affirmed the decision and sentence of the trial court. The judgment illustrates the courts' approach to consecutive sentencing for distinct sexual offences against a child. The court's affirmation reflects that appellate interference with a sentence is confined to cases of legal error or manifest excess or inadequacy, neither of which arose on the facts before it.