Concurrent Sentencing vs Consecutive Sentencing - Malaysia

“Walao why he guilty for all 6 charges but Court give him 10 years jail only not 60 years leh? Law also got combo package liddis meh?” Aunty Meng, July 2020

In your typical Criminal Court proceeding, after a lengthy trial and once the accused is found guilty, the next stage is sentencing pursuant to Section 183 of the Criminal Procedure Code Act 593.

This is where the Court listens to arguments, amongst others, on mitigating factors from the Defence and public interest from the Prosecutor before determining what the appropriate sentence ought to be whilst keeping it between the range permitted by the law.

When faced with multiple charges, similarly, the Court would first decide the appropriate sentence for each individual charge. An additional consideration the Court has to make is to determine whether the sentences are to run concurrently or consecutively.

Info-Slide

A concurrent sentence is when the Court ordered sentences for the multiple charges are served together at the same time (i.e. all sentences will start on the same date).

A consecutive sentence however would require the convict to complete serving one sentence first before beginning the imprisonment time for the other sentences. (hence the final imprisonment time would be cumulative of all sentences)

For example: If Bijan faces 5 years imprisonment for theft and 1 year for attempt for theft, under consecutive sentencing he would face 6 years imprisonment in total whilst under concurrent sentencing, he would only face 5 years in total.

Court’s Consideration

In PP v. Shari Mohd Shariff [2005] 5 CLJ 439 (HC), Low Hop Bing J succinctly laid down the principles on this point:

“The principles governing the imposition of concurrent or consecutive sentences have been succinctly stated in Bachik Abdul Rahman v. PP [2004] 2 CLJ 572 CA (foll) by Augustine Paul JCA who delivered the judgment of the Court of Appeal and may be enumerated as follows: 1. In deciding whether the terms of imprisonment should be concurrent or consecutive, the court should be guided by the one transaction rule and the totality principle; 2. Pursuant to the one transaction rule, where two or more offences are committed in the course of a single transaction all sentences in respect of these offences should be concurrent rather than consecutive: R v. Saleem [1964] Crim. LR 482; R v. Walsh [1965] Crim. LR 248; Abu Seman v. PP [1981] 1 LNS 181 [1982] 2 MLJ 338 at p. 343 Chong Siew Fai J (later CJ (Sabah & Sarawak); PP v. Yap Huat Heng [1986] 1 CLJ 81; [1986] CLJ (Rep) 645 HC (refd)Abu Seman v. PP [1981] 1 LNS 181; Hashim bin Pawanchee & Anor v. PP [1988] 2 MLJ 66; Haji Johari bin Haji Abdul Karim v. PP [1989] 2 MLJ 276; PP v. Wong Kok Sein & Ors [1988] 1 CLJ 873; [1988] 2 CLJ (Rep) 630 HC (refd)Sau Soo Kim v. PP [1975] 1 LNS 158 and PP v. Ng Chong Wan [1988] 2 CLJ 833; [1988] 2 CLJ (Rep) 278 HC (refd) in Gek Sing Kaliappan v. PP [1999] 4 CLJ 292 HC (refd) per Vincent Ng J. 3. For there to be one transaction four elements must be present, that is to say, proximity of time, proximity of place, continuity of action and continuity of purpose or design: Jayaraman & Ors v. PP [1979] 1 LNS 36 [1979] 2 MLJ 88; Amrita Lal Hazra v. Emperor 42 Cal. 957; Chin Choy v. PP [1955] 1 LNS 17 [1955] MLJ 236; and SA Jamil Md Yusof [2002] 7 CLJ 132 HC (refd). 4. The one transaction rule is, however, not absolute, as there are situations where consecutive sentences are necessary to discourage the type of criminal conduct being punished: R v. Sheatley [1983] 5 Cr. App. R (S) 417 and R v. Skinner [1986] 8 Cr. App. R (S) 166. The applicability of the exception is said to depend on the facts of the case and the circumstances of the offence; 5. A cumulative sentence may offend the totality principle if the aggregate sentence is substantially above the normal level of sentences for the most serious of the individual offences involved, or if its effect is to impose on the offender “a crushing sentence” not in keeping with his records and prospects: DA Thomas in “Principles of Sentencing” (2nd edn) pp 57-58; Wong Kai Chuen Philip v. PP, supra; and Kanagasuntharam, supra; and Maideen Pillai v. PP [1996] 1 SLR 161; 6. Sentences must have regard to the total length of sentence passed, particularly where consecutive sentences have been imposed, to ensure that the sentence properly reflects the overall seriousness of the behaviour: Emmins on Sentencing, 2nd edn. p. 151; 7. There will be cases properly described as crushing the hope in the offender of reformation and a return to a desirable life but in which the offender has, by his criminal acts, forfeited any right to have his sentence reduced on that account: Crowley and Garner v. R [1991] 55 A Crim. R 201; 8. A richly deserved sentence, not manifestly excessive, should not be disturbed just because the person upon whom the sentence is imposed may feel crushed by it: per O’Bryan J in Crowley and Garner v. R, supra, at p. 301; To the above principles, the following may be added: 9. The question whether the sentences should run consecutively or concurrently must depend upon the particular circumstances of the case: Sau Soo Kim v. PP [1975] 1 LNS 158 [1975] 2 MLJ 134, per Lee Hun Hoe CJ (Borneo) (as he then was) whose judgment was read by Suffian LP (as he then was); 10. The totality principle requires the court to consider whether the aggregate is just and appropriate and to ensure that the sentence is not excessive: R v. Faulkner [1972] 56 Cr. App R. 594; PP v. Teoh Heng Chye [1990] 1 CLJ 194; [1989] 3 MLJ 205; PP v. Chot Saik Kam [1990] 1 LNS 137 [1991] 1 MLJ 193; Marimuthu Balakrisnan v. PP [1974] 1 LNS 88 [1974] 2 MLJ 145.“

Further in PP v. Yap Huat Heng [1986] 1 CLJ 81 (HC), the Court held as follows:

“… Where two or more distinct offences had been committed, sentences of imprisonment should not be made to run concurrently. It should only be made concurrent when an offender had been convicted of a principal and a subsidiary offence. In all other cases, sentences should be made to run consecutively.“

In short, unrelated offences should run consecutively while offences of a similar nature or constituting one transaction should run concurrently.

Second, the Totality Principle requires the Court to consider whether the aggregate (cumulative sentence) is just and appropriate and to ensure that the sentence is not excessive. This is to ensure that the purpose of retribution is justified and proportionate to the crimes that were committed.

In Mansor Bin Meyon v PP [2007] 8 MLJ 706, Yong CJ held that:

“The question of whether the sentence imposed is crushing cannot be answered mathematically by reference to the offender’s age and the length of sentence to be served by the circumstances of the case.”

In this case, the court upheld the Session Court’s decision of a consecutive sentence as the appellant had undoubtedly committed three distinct offences of incestual rape.

The appellant would have had to serve a total of 54 years imprisoned, but taking into account that the appellant was 49 years old and that he was a first offender, the High Court judge decided to reduce each sentence to 12 years imprisonment, leaving a total of 36 years rather than 54.

Whilst courts factor in surrounding circumstances for the final sentencing, the public interest overrides the crushing effect of the consecutive sentence to an extent, especially in such serious circumstances.

Conclusion

The one transaction and totality principle rules are not cast in stone and in situations where it warrants a departure from these rules, the court may do so in the interest of justice.

This is especially so where the facts so warrant or if the intended outcome of sending the message of abhorrence to the action of the offender needs to be highlighted by the court to the public, the court is at full liberty to decide accordingly.