2022 LHC 1567
The act of the perpetrator is assessed from the facts of each case, depending upon intention, preparation, malice, grudge, heat and the enmity bore and is regarded in terms of ensued effects. Cross, drawing on earlier judicial comments and practice, suggested that four factors affect judicial construction of seriousness as well as the factors of harm done; which are wickedness, social disapproval, social danger and social alarm.
a) The 'evilness of the perpetrator. This focus on degrees of wickedness is perhaps the most difficult, depending as it does on normative judgments and underlying moral codes. In the fragmented modern society there may be little consensus as to what actions are most blameworthy and, further, its focus on the mental state of the offender raises difficult questions as to intention, provocation, malice, and excuses.
(b) Social disapproval. This is an equally slippery concept, again depending on society’s values. The strength of public denunciation of an offence (within its offence category) is often strongly influenced by the age or sex of the victim: babies or children as victims generally attract more social disapproval and so the offending is construed as more serious. There might also be more social disapproval of an offender if he has committed the offence before.
(c) Social danger or social alarm. The clearest example of this factor might now be terrorist-related offences: the degree of extreme social anxiety about global terrorism feeds into a heightening of perceptions of the severity of offences such as possession of a firearm or counterfeiting documents. Handling of stolen goods is also seen as very serious because of the danger that the incidence of theft will escalate if those willing to handle stolen goods are inadequately punished. Cross's example of social alarm upgrading seriousness is that of the person illegally entering a residential property--as opposed to commercial property--where the same amount of damage or theft causes a greater alarm.
In providing early guidance on 'seriousness' the SGC approached the issue of culpability by focusing on the ‘amount’ of intention and identifying four 'levels' for sentencing purposes
Where the offender
(iv) has the intention to cause harm, with the highest culpability when an offence is planned. The worse the harm intended, the greater the seriousness.
(v) is reckless as to whether harm is caused, that is, where the offender appreciates at least some harm would be caused but proceeds giving no thought to the consequences even though the extent of the risk would be obvious to most people.
(vi) has knowledge of the specific risks entailed by his actions even though he does not intend to cause the harm that results.
(vii) is guilty of negligence.
The second element of gravity is the factual judgment on the amount of harm caused by the offending. On the face of it, this is a much easier judgment because 'harm' appears as an objective, value-free concept. Arguably this is so if we are talking about theft, where the offence is the deprivation of an amount of money or property whose value is easy to calculate. But, as we saw with our sentencing problem, the value to the victim may be sentimental' because, say, of the giver of the gift stolen, or the offence might be assault where the monetary value to be placed on the injury depends not only on the permanence or otherwise of the harm but also on the context of the victim's life. A scar on the face is, arguably, much more serious if the victim is a model whose living depends on facial perfection, and a jaw injury might take away the pleasure of playing in a brass band, but this raises further questions. Should the loss to a particular individual be part of the calculation of harm or should the offender be punished proportionately to the harm an 'average' victim would have suffered from his offending? How do you put a price, not only on potential loss of earnings, but on the more difficult issue of loss of pleasure, whether caused by the loss of a hobby or of one of the five senses?
It can be calculated from above highlights that the harm is the criteria to label one as hardened, desperate or dangerous criminal. Act in one situation or against a person may not be regraded much harmful as compared to others; offence against vulnerable class is more serious particularly when one is reckless or know the effects of his act, part selected by him for causing injury or making one as sign of victimization.
CM 1-22 IN Crl. Appeal-Against Conviction-PPC
1175-19
MUHAMMAD ASIF VS
STATE ETC
Mr. Justice Muhammad Amjad Rafiq
23-02-2022
2022 LHC 1567
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