1 2 3 4 5 6 7 8 9 MALAYSIA IN HIGH COURT IN SABAH AND SARAWAK AT KOTA KINABALU BETWEEN PUBLIC PROSECUTOR APPELLANT AND JUHINOL BIN LIMBUIS RESPONDENT 10 11 12 13 (KOTA KINABALU SESSIONS COURT CRIMINAL CASE NO. BKI-62JS-33/12-2016) BETWEEN 14 15 16 17 PUBLIC PROSECUTOR PLAINTIFF AND JUHINOL LIMBUIS ACCUSED 18 1
19 GROUNDS OF JUDGMENT 20 21 22 23 24 Introduction: This is an appeal by the Appellant against the sentence imposed by the Learned Sessions Court Judge. The sentence imposed was eighteen (18) years imprisonment from 20.12.2016 and 3 strokes of whipping. 25 26 27 28 Brief Facts: The respondent, Juhinol Limbuis, was charged under Section 376(2)(k) of the Penal Code in the Sessions Court Kota Kinabalu. 29 30 31 32 33 34 35 36 The charge against the Respondent is as follows: Bahawa kamu pada suatu hari di dalam bulan Julai 2015, jam lebih kurang 3.00 petang, bertempat di dalam sebuah rumah tidak bernombor, di Kampung Mahansung, dalam daerah Penampang, dalam negeri Sabah, telah merogol Genica Ponsing, KPT: 940807-12-7680, apabila kamu mengetahui tentang kecacatan mental wanita itu pada masa perlakuan jenayah itu dan dengan itu kamu telah 2
37 38 melakukan kesalahan di bawah seksyen 376(2)(k) Kanun Keseksaan yang boleh dihukum di bawah seksyen 376(2) Kanun Keseksaan. 39 40 41 42 Hukuman Penjara selama tempoh tidak kurang dari sepuluh tahun dan tidak lebih dari tiga puluh tahun dan hendaklah juga dikenakan sebat. 43 44 45 46 Upon the charge being read to the Accused, Accused pleaded guilty on the said offence and was sentenced for 18 years imprisonment from 20.12.2016 and 3 strokes of whipping. 47 48 49 50 51 52 53 54 Grounds of appeal This appeal is against the sentence imposed by the Learned Sessions Court Judge. The submission of the Appellant is based on the following grounds: 1. That the Learned Sessions Court Judge failed to take into consideration of the nature and seriousness of the offence committed by the Respondent. 3
55 56 57 2. That the Learned Sessions Court Judge had failed to strike a balance between the interest of the public and the interest of Respondent when considering the mitigation plea of the Respondent. 58 59 60 61 62 3. That the Learned Sessions Court Judge had failed to ruminate the principles of sentencing. The fact that the Respondent had pleaded guilty and that he is a first offender is not an automatic rule for leniency. 63 64 65 66 67 4. That the Learned Sessions Court Judge had failed to take into account of the fact that the victim in this case is a mentally disabled person. The victim in this case had also given birth to a baby as a result of the rape. 68 69 70 71 Findings All of the grounds stated above relate to the factors during sentencing by a judicial officer and I will deal with these factors in one whole finding. 4
72 73 74 There are 4 classical principles of sentencing as laid down in the case of R v Sargeant [1974] 60 CR. APP R 77. These principles are deterrence, retribution, prevention and rehabilitation. 75 76 77 78 79 80 81 82 On deterrence, it is always the principle that the justice for society outweighs justice of the Accused. I find that the sentence passed by the Learned Sessions Court Judge is not sufficient to show the denunciation of the Respondent s crime. Society must be alarmed on the punishment that awaits them for this offence and by imposing a lenient sentence, it is not enough to show our seriousness in combating sexual offences in this country. 83 84 85 86 87 88 89 90 On the other hand, the offence committed by the Respondent is a very serious in nature. Respondent in this case had raped a mentally incompetent person. The nature of the rape and the fact that the victim is mentally disabled reflects the perverse thinking of the person who does not possess a right mind. Accused is the so-called boyfriend of the victim s mother and he took full advantage of knowing victim s illness (defenseless) by raping her. If this is not a very serious offence, I do not 5
91 92 93 94 95 96 97 98 99 100 101 102 103 know what is. Furthermore, the victim in this case had delivered a baby as a result of the crime. Such terrible crime ought to be sufficiently punished in the public interest to deter the men of our society from committing similar offence in future. This is confirmed in the case of R v Roberts [1982] 1 All ER 609 where it was held:- Rape is always a serious crime. Other than in wholly exceptional circumstances, it calls for an immediate custodial sentence A custodial sentence is necessary for a variety of reasons. First of all, to mark the gravity of the offence. Second, to emphasis public disapproval. Third, to serve as a warning to others. Fourth, to punish the offender, and last, but by no means last, to protect women. The length of the sentence will depend on all the circumstances 104 105 106 107 108 Conclusion Having considered all the factors and authorities above, I find that there is a need for this Court to enhance the sentence imposed by the 6
109 110 Sessions Court. The sentence is increased to 25 years imprisonment and the 3 strokes of whipping is maintained. Appeal allowed. 111 112 Dated 24 th July 2017 113 114 115 116 117 118 119 120 121 122 123 124 125 126 127 128 129 130 131 Sgd YA. DATUK NURCHAYA BINTI HAJI ARSHAD Judge Kota Kinabalu High Court Criminal, Sabah For Appellant : DPP Dinesh Raja Timbalan Pendakwa Raya Bahagian Pendakwaan Jabatan Peguam Negara Sabah KOTA KINABALU For Respondent : Present (unrepresented) Authorities cited:- R v Sargeant [1974] 60 CR. APP R 77 R v Roberts [1982] 1 All ER 609 7