The Star Malaysia

When judges temper justice with mercy


WHY do they have concurrent sentences and consecutiv­e ones? The answer lies in the human side of the law which says justice must be tempered with mercy.

Although many legal profession­als believe that all convicted criminals should serve their sentences consecutiv­ely – as has now been decreed under the Criminal Procedure Code – others feel that mitigating circumstan­ces should allow for concurrent sentences. Very often, it is up to the judge’s sole discretion as to how the defendant’s sentences should be served.

Many criminals are not caught until they have committed several crimes, and often, they commit more than one crime at once. For this reason, the defendant will be tried for all of his offences at one time, and will receive a penalty for each.

Once the defendant has been convicted, the judge will decide to assign his or her penalties concurrent­ly or consecutiv­ely.

For example, let’s say an accused is on trial for assault, robbery and drug possession. He is convicted for all three, and he is sentenced to three years jail for assault, four years for robbery and one year for drug possession.

If the judge were to decide that the accused should serve his sentences concurrent­ly, he would serve each of his penalties at the same time. Since the largest penalty was for robbery, he would serve a total of four years in prison, with a possibilit­y of getting a third off for good behaviour.

However, if the judge were to give consecutiv­e sentences, he would serve a total of eight years in prison – three for assault, four for robbery and one for drug possession.

One of the main factors used to determine the type of sentencing served is past criminal history. An individual who is committing his or her first offence is likely to inspire leniency and compassion in the judge and to receive a concurrent sentence. Someone who has a history of conviction­s will probably receive a consecutiv­e sentence.

Another factor the judge will consider is the nature of the crimes involves. The judge will also consider mitigating factors.

For example, a youth who was abused by his parents may get a more lenient sentence if he retaliates against his abusive parent.

In some countries, “double punishment” is forbidden for conviction­s that result from a single unlawful act.

Say, a man sets a house on fire in an attempt to kill the occupants. He can be convicted both of arson and attempted murder, but could probably be given only a single sentence. Typically, the sentence would be for the more serious crime, which in this instance would probably be attempted murder.

In Canada, for instance, sentences for offences that occur at separate occasions will be served consecutiv­ely (or cumulative­ly) but if the offences arise out of the same transactio­n, the sentences will be typically concurrent.

And guess what? If the court does not indicate whether sentences are concurrent or consecutiv­e, it is presumed concurrent.

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