August 23, 2012
Double Standards in Sentencing
by Azmi Sharom (08-22-12)@www.thestar.com.my
There are times we hail court decisions and there are times we find them bizarre. But if we ignore the incredible disparities in some court decisions, it is only at our own peril.
HOSLAN Hussein (left) gets one year in jail for inaccurately chucking (he missed) his slippers at a judge. Noor Afizal Azizan gets a fine and zero jail time for raping a 13-year-old girl.
It boggles the mind. Hoslan’s sentence, in my view, was very harsh and over the top. But even if one were to believe that the sanctity of the courts is so fragile that a punitively deterrent punishment is required for the flinging of footwear, it is impossible to ignore the incongruous disparity in the punishments meted out to these two men for crimes of such vastly different seriousness.
Much has been said about the judge’s unbelievable comment when sentencing Noor Afizal. Apparently being a national bowler with a bright future is enough to let you escape jail time for rape.
Actually, what is this “bright future” the judge is thinking about? The man is a child rapist; he confessed to it. He should not be allowed to represent the country in anything at all.
And in case you think there are mitigating issues in this case, namely that the sexual act was supposedly consensual, allow me to argue otherwise. In this case, the girl was under the age of consent. This means the crime committed is statutory rape. The issue of consent does not even arise in such cases.The reason for this is because we as a society have long ago determined that the young girls of our community deserve protection.
It does not matter in the slightest that children mature at different rates; what matters is that in general, this society believes that girls under the age of 16 are not yet ready to make decisions regarding their own sexual activity.
There are mental, psychological and also physiological elements to this need for protection. The sexual act by itself could have implications for a child’s well-being, but a child from our society would surely be traumatised in the event that she got pregnant and had to face either childbirth or abortion. Furthermore in immature bodies, the experience can also be seriously harmful physically.
I use the term “a child from our society” because I realise the age of consent will differ from nation to nation and culture to culture. But in the case of statutory rape, there is no room for comparative anthropology. What matters is what we value for our girls.
I always believe that Malaysians care for our children. We want them to have a sound and safe childhood so that they can go to school and build a strong foundation for their future.
This is why we want to protect them for as long as possible, for it is this safety
that helps to establish an environment where they can mature and flourish at a pace which we believe is healthy.
The Judge in making his decision could not possibly have been thinking about this bigger picture.
For if he had, he would have realised that his judgment was not only about Noor Afizan and the girl he violated, but also about all the girls in this country and our collective concern for them.
The Judge has in effect dealt a blow to one of the few noble values that the people of this country universally accept — that our children should be cared for and be protected.
Unbelievable, it is the right word. And disgusting too. What is wrong with our justice system? Mr. Bean, you are the right man to answer this Q.–Din Merican
I just wonder if the victim was the judge’s daughter, would the sentence be the same?
Well, welcome to the land of the bizarre! Throw a slipper get one year jail time but rape an underage girl no jail time. What does whether this rapist have a “bright future” got anything to do with the fact that he broke the law and rape is a serious of fence. Yes simply unbelievable.
“It boggles the mind. Hoslan’s sentence, in my view, was very harsh and over the top.”
Contempt in the face of the court is never a small matter.
Pedophilia is universal, even among the ‘justest’ and ‘mostest’..
Slipper-philia is not, even among the lowest and meanest.
Most prefer shoes, hand crafted suede loafers would do.
That is the problem.
It is useless to speculate on judge’s daughters.
A better case for comparison would be the case of a man caught shoplifting toothpaste and was fined and jailed and someone like the so-called bowling ace who pleaded guilty to statutory rape of a 13-year old and was given probation. There is no excuse for the disparity in sentencing as there are guidelines for judges to follow.
What has skills at bowling gotta do with the crime of rape? Is it supposed to be a mitigating factor? Or perhaps more significant, a new type of defence against the crime of rape that criminal defence lawyers may want to further develop. Call it ‘bowling ace’ defence.
The problem is not only with the Judge whot heard the case, it even includes the panel of Appeal Judges. It thus shows how skewed and blind our judges are. Imagine a High Court Judge progressing up the ladder to be an Appeals Judge and not realising that they must be seen to mete out a just and fair justice.
Why do we call our judges Yang Ariff? They are not Ariff or peka to the rakyat’s expectation of natural justice and the laws that have been promulgated to handle rapist and statutory rape. A 13 year old girl can’t vote, can’t drink alcohol, so how can the girl give consent for sex. Judges should rule according to the law not according to their whims and fancies.
umno justice
“The issue of consent does not even arise in such cases.The reason for this is because we as a society have long ago determined that the young girls of our community deserve protection.”
The law treats children in the same way it treats people with disabilities. If it allows the defense of legal insanity to perpetrators of horrendous crimes who do not know the meaning of right and wrong at the time of the commission of the offense, to escape the death penalty there is no reason why it cannot extend the same protection to cover children and minors whose mental faculties have not fully developed to allow them to understand the choices they are making. They are victims. They are under a disability and requires the special protection of the law.
In the law of trespass, for example, the law recognizes the nuisance doctrine when children get attracted to some artificial condition on the land and upon trespass are injured. When giving evidence in court, for example, if a child does not understand the importance of telling the truth the child cannot be made to take the oath and testimony will be unsworn and less weight would be attached to it as a result.
More controversial are cases involving statutory rape of female students by male teachers and the seriousness such cases are treated compared to cases involving female teachers and male students. Chances are that female teachers would get a lighter sentence. There is a double standard here.
Let’s be clear in all these cases (involving teacher and student) there was consent and the student was mature enough to understand. It is not like they are 13 year olds.
A fisherman just got charged this morning for raping a 15-year old girl. Geez, how he wish he is a national bowler and not a fisherman… poor choice of vocation…. LOL!
Din.do we have common law that the judge can make referance.If i was not mistaken,the same judge who make a different ruling whan he decide on Nizar case.I thought he will follow the Kalong Ningkan case which was decided earlier.
Anyway judges are human and they bound to make silly mistake.
there was a rape/murder case five monthe ago. an 18yrs old raped a 15yrs old girl in a parkhouse and strangled her after the act.
the case came up for trial last week and it was adjourned to establish the fact first if he should be tried as an adult (life imprisonment – max 30yrs) or as a teenager (max 10yrs). yes, in Europe
There are still enough of old geezers like Tok Cik, Frank and semper fi and yours truly around who remember the Karthigesu murder trial in the early 70s involving the murder of a beauty queen. At the time we still had the jury system reserved for capital murder cases. It has since then been abolished.
If we still have the jury system for felony cases such as robbery, rape and murder, cases like the 10-pin bowling ace case would not have ended with the perpetrator freed on his own recognizance. Some would point to the lack of a victim in this case (a victimless crime) and the need to temper justice with mercy because the girl had consented. But what of the intent of lawmakers to protect minors who are not old enough to give their consent? This is hardly a deterrent. She is only thirteen and not a day short of turning eighteen. Over here a case like this would end up with the accused spending jail time of at least five or more years.
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Well, Bean, that was the past.–Din Merican
Hamid, the common law you are referring to is called Precedent, what was decided and judgement made in the past for a similar case. All judges must research these laws and judgement before arriving at a decision. That’s why sometime they take a long time before delivering a decision.
Then there is the issue of incest some involving minors which is very prevalent among Malays. Better use of state resources could be made if Hanif Omar would lead a panel of enquiry into cases like these and present his findings. Instead of chasing after ghosts of dead Commies.
“That’s why sometime they (judges) take a long time before delivering a decision.” — semper fi
The process of intellectual masturbation in chambers takes more than twenty minutes in most cases. Some take years.
he doesn’t even qualify for the ‘Romeo and Juliet Clause’ so whats wrong in introducing the the ‘Bowling Ace Clause’?
”The process of intellectual masturbation in chambers takes more than twenty minutes in most cases. Some take years.” – Mr. Bean
this case has taken five years – what have they been doing all this while……?
about the case I mentioned above;
at first the police suspected a different youth but later cleared him, not before his name was leaked to the social medias which called for revenge. the public nearly lynched him, before he was saved in the nick of time by the police.
http://www.finas.gov.my/index.php?mod=vgallery&sub=video&category=5&album=25
Jean Perrera was a teacher from my school.
Good job, reeper. But where’s the rest?
Karthigesu was found guilty by a jury of his peers and sentenced to death. But while waiting for the appeal, a key witness admitted he had lied which cast reasonable doubt on the case. That’s is all it needs. Reasonable doubt. It does not mean Karthigesu did not commit the crime.
There is strong circumstanciial evidence that he was the murderer. Over here police would focus on him from day one and police here are relentless in the pursuit of justice. When a man that close to the victim comes out looking cool, calm and collected it usually means he knows something and is not saying. He had the motive, the opportunity and the means.
A key witness in the case admitted to perjury and was jailed. Apparently he took the fall for Karthigesu. Whatever happened to the guy upon release from jail?
This case should have been declared a mistrial. Karthigesu should be re-tried. Not a case of double jeopardy.
“Anyway judges are human and they bound to make silly mistake.” — Hamid Gurkha
That is why we have prosecutor, judge and jury. Not all three rolled into one. We live in communities and by its values. If we commit a wrong it is always against the values of the community we live in. We have the right to be tried by a jury of our peers. Experience shows that a trial by judge and jury rather than solely by a judge is more advantageous to the accused person. The judge is trained in the law but it is the jury of our peers that makes the determination of guilt or innocence. The downside to jury trials is that sometimes it leads to a miscarriage of justice. But it is better that a guilty man walks free than ten having to languish in jail for crimes they did not commit.
Judges are only human and make mistakes?? Yes, tell that to the man sitting in Death Row awaiting execution for a murder he did not commit. That is why we have appeals. Trial judges do make mistakes – both law and fact. And it is not because they are humans. Guilty or innocent is a matter of evidence. The study of evidence is not a science. Rules of evidence are often misapplied.
Judicial Commissioner Nurchaya Arshad would have had sentence this Kid to thirty years plus six strokes of the rotan…two different judges two different rulings…some are lions some are pussycats
Pussyfooting with the law does not help because your decision can be reversed on appeal in normal circumstance. This case is far from being normal. How is that three appeal court justices sitting as a panel come to a unanimous decision? Does this not suggest the working of an invisible hand?
No bean but if student slept with teacher to get good grade. That’s a different matter. Google Singapore news on this
Bean suk,
The great Singapore first chief minister, David Saul Marshall was one heck of a criminal lawyer. Seems that criminals under David’s defence most of time got away with conviction. Lee kuan yew will disagree with you. I am looking forward to a challenge between you & him with Malott or din as moderator. Lky is a private citizen though like Dulles during Cuban crises can be pulled in for advice. What to do when his son is pm. Hahaha
Sorry bean,
I am no law ex
Bean suk,
The great Singapore first chief minister, David Saul Marshall was one heck of a criminal lawyer. Seems that criminals under David’s defence most of time got away with conviction. Lee kuan yew will disagree with you. I am looking forward to a challenge between you & him with Malott or din as moderator. Lky is a private citizen though like Dulles during Cuban crises can be pulled in for advice. What to do when his son is pm. Hahaha
Sorry bean,
I am no law expert. Trial by jury of the peers. If the felon is an illiterate, you must have 12 illiterate juries izzit. My mum has taken up jury services before. Mind you, it’s tough to be holed in a hotel without any news to read. Mass media, papers even blog. People get so tiring that at times, they will settle for anything. What if the jury is a businessman, how do you justify his compensation.
Sorry bean,
I disagree with you on this system. Serious cases should be a trial of 2 – 3 judges. If possible one from the commonwealth or former British colony like hong kong.
Judge has years of experience & competence. Leave it to the experts