The Court of Appeal has asked the Parliament to consider giving the court enhanced powers to mete out tougher sentences until up to 1.5 times the maximum penalty prescribed in cases where the offender commits certain crimes against the vulnerable victims, especially children and young persons.
In its written grounds of decision released on Wednesday (29 November), the apex court explained the reason why, in July, it had increased the jail term of a woman who abused her four-year-old son so violently that the boy passed away due to the injuries.
Noraidah Mohd Yussof, 35, had her eight-year sentence raised to 14½ years for abusing her son, Airyl.
The three apex court judges even stated that they would have given Noraidah an even harsher sentence for causing grievous hurt if they had the powers to do so.
Chief Justice Sundaresh Menon, who penned the judgment, said the courts show their condemnation by considering the victim’s vulnerability an aggravating factor in sentencing, however, he noted that this may not be sufficient.
“If there had been such a provision affording the court this discretion (to increase the punishment beyond the maximum sentence prescribed) in this case, it would not have hesitated to enhance (Noraidah’s) sentence for the first charge (relating to voluntarily causing grievous hurt) by one-and-a-half times given the gravity of that offence and the significant aggravating factors present,” he said.
He then added, “We therefore invite Parliament to consider affording the courts the power, when dealing with such offences, in particular those against children and young persons, to enhance the permitted punishment to one-and-a-half times the prescribed maximum penalty for certain offences.”
The maximum penalty for causing grievous hurt is 10 years’ jail, caning and a fine. Under the law, women are not allowed to be canned.
CJ Menon also said, “Deterrence was an especially weighty consideration in offences against young victims given the gross physical disparity between the victim and the offender in such cases. The court also held that a parent who betrayed the ultimate relationship of trust and authority between a parent and his or her child stood at the furthest end of the spectrum of guilt.”
The apex court stated that when using a sentencing framework, an indicative starting point for sentencing should be determined based on the seriousness of the injury.
Then the indicative starting point should be adjusted either upwards or downwards based on an assessment of the offender’s culpability and the presence of relevant aggravating and/or mitigating factors.
According to CJ Menon, where the grievous hurt takes the form of death, the indicative starting point should be a term of imprisonment of around eight years and when the grievous hurt takes the form of multiple fractures such as the ones Airyl had, the indicative starting point should be a term of imprisonment of around three years and six months.
Aggravating factors that were taken into account include the manner and duration of the attack and whether there were any prior intervention by the authorities.
The court also noted that enacting legislation that identifies a certain class of criminal action as deserving of harsher punishment has been done before as Parliament did in 1998 in relation to several offences against foreign domestic workers, which included causing hurt or grievous hurt to, or wrongfully confining, domestic workers.
Similarly, enhanced penalties for racially or religiously aggravated offences were imposed in 2007.
The court also noted that among other things the recent public consultation on a draft Vulnerable Adults Bill had proposed, inserting a new provision in the Penal Code for enhanced penalties of up to one-and-a-half times the permitted sentencing range for certain offences against vulnerable adults.
It said, “This proposed change is entirely consistent with our call for the courts to be afforded the discretion to enhance sentences for certain offences against vulnerable victims, especially children and young persons.”
The apex court disagreed with the High Court judge’s characterisation of Noraidah’s offences as crimes of passion, calling them acts of vindictiveness.
According to CJ Menon, her actions were deliberate responses to Airyl’s particular actions and there was nothing to suggest she had lost control.
CJ Menon said that the tragedy was exacerbated by the fact the abuse continued even after the involvement of the Ministry of Social and Family Development’s Child Protective Service. Noraidah regained custody of Airyl after no recurrence of abuse was reported, however, she subsequently continued ill-treating him.
Noraidah, who has another child, began abusing Airyl from March 2012, when the boy was just two years and five months old.
At that time, Noraidah was teaching Airyl the alphabet and when he could not follow her, she pushed the boy twice.
Some time later, Airyl asked a piece of paper for him to draw. Noraidah gave the boy the paper, however, when she noticed that Airyl scribble on the sofa instead, she got upset then pulled and twisted his hand.
She then took Aoiryl to KK Hospital where he was found to have multiple fractures on his elbow, calf and ribs as well as bruises all over his body.
Airyl was then referred to the Ministry of Social and Family Development (MSF) in April 2012 and was placed in the care of a foster family. Then in July the same year, Noraidah’s uncle and his wife took him to live with them.
Noraidah and her eldest daughter moved in with her uncle November that year. During this period, MSF’s Child Protective Service found that there were no reports of abuse and closed the case in February 2014.
Noraidah then took her two children to moved a flat in Eunos. That was when the abuse started again.
One time, she pushed Airyl until he fell backwards and hit the back of his head against a television console table only because she got annoyed over Airyl’s failure to recite the numbers 11 to 18 in Malay correctly that she had asked him to.
An on the very same day, she got upset when Airyl had passed motion on the floor and kicked in the waist then stood on his stomach with both of her feet before stepping away.
The last time she abused Airyl was in August 2014 when Noraidah got angry over another incident.
Noraidah grabbed Airyl’s neck and lifted him off the ground with his back against the wall. She was only letting him go upon seeing him gasping for air. The boy then fell on the floor and was no longer moving.
The boy then was later taken to the hospital and was found to have multiple head and body injuries. He passed away after being taken off life support.
An autopsy revealed the extent of the prolonged abuse including skull fractures and bleeding of the brain was caused by blunt force trauma. And a multitude of “old injuries” was also found on the boy’s battered body, including more than 30 bruises on his head, neck, chest and back.