Sentencing Child Offenders in Malaysia: When Practice Meets its Purpose

Abstract

In Malaysia, the increase in juvenile delinquency has always been a source of worry. The discussion around juvenile sentencing is always centred on the familial aspect of rehabilitating adolescents and the punitive role of criminal punishments. The proponents of restorative justice think that children in their vulnerable position should not be subjected to harsh sentences, whereas the proponents of punitive justice advocate for harsher, deterrent punishments. In light of this, this study aims to examine the practice of sentencing children in Malaysia. This essay examines the challenges judges encounter when selecting appropriate sentencing for juvenile criminals. This study applied a doctrinal methodology to discuss the legal provisions of the Child Act 2001, Criminal Procedure Code, Penal Code and reported cases. This study employed content analysis of the reported cases from online databases such as the LexisNexis and Current Law Journal. The data from primary sources of law such as legislation and reported cases were accompanied with secondary data obtained from journal articles, textbooks, conference papers, theses, published statistics, and webpages. This study found that the sentencing practice with regard to children in Malaysia differs from one case to another. Judicial discretion given to the judges are not accompanied by specific guidelines but rather general considerations such as the age of the offenders, the gravity of the offence, the probation report and previous conviction. This study concludes that juveniles' punishments must be proportional to the severity of their crimes. A sentencing guideline should be established to guarantee that sentencing practices are consistent. Besides, clear procedures in preparing a probation report must also be established. For future research, this study recommends a relook on the role of probation officers and the significance of probation report in assisting judges to impose appropriate punishment towards juvenile offenders.