MOHAMAD ZABIR HARITH BIN BIDIN v Pendakwa Raya

Case Significance

Illustrates the deterrent approach to sentencing for sexual offences against a child under section 14(a) of the Sexual Offences Against Children Act 2017, the court upholding the sentence as consistent with Parliament's abhorrence of such offences and the primacy of the public interest over personal mitigation.

This High Court decision concerns an appeal against sentence in a case of sexual offences against a child, where the appellant had been convicted in the Sessions Court on multiple charges under section 14(a) of the Sexual Offences Against Children Act 2017 (Act 792) across several cases, arising from a course of physical sexual assault on a child at the residential premises where he had access to the child. This record relates to one of the consolidated appeals. The appellant contended that the aggregate sentence was manifestly excessive and had a crushing effect on him. The court emphasised the gravity with which Parliament has treated offences of this kind: under section 14(a) even the touching of any part of a child's body for a sexual purpose is an offence punishable with imprisonment of up to twenty years and liability to whipping, and section 25 of the Act reflects the same abhorrence by permitting whipping even of an offender the court considers to be over fifty years of age. It held that the overriding consideration in sentencing for such offences is the public interest, and that mitigating circumstances such as hardship to the offender or his family from a long term of incarceration are not to be given undue weight where the severity of the offence outweighs them; the offender has only himself to blame and should have considered the consequences before offending, not after. Reviewing the trend of sentencing under the Act, the court was not persuaded that the sentence imposed by the Sessions Court was excessive, illegal or otherwise improper, and it held that a deterrent sentence was warranted. It drew on the settled principle, reflected in authorities such as Public Prosecutor v Teh Ah Cheng, that in offences of a sexual nature the interests and hardship of the offender yield to the public interest, and on appellate guidance including Ibrahim bin Mahd Nazri v Public Prosecutor confirming that sentences within the established range for such offences will not readily be disturbed. The court accordingly dismissed the appeal against sentence. The judgment illustrates the deterrent approach to sentencing for sexual offences against children under the 2017 Act, and the limited scope for appellate interference where the sentence accords with the statutory scheme and the sentencing trend.