CLD Criminal Law Basics
Behind Bars: How do Courts sentence offenders?
An eye for an eye, and a tooth for a tooth- this philosophy is what the general public wished had been applied to the infamous case of Annie Ee.
Annie Ee was an intellectually disabled waitress who was tortured relentlessly for months, resulting in her death. Prosecutors sought to charge her abusers with merely 14 and 15 years of jail respectively and the public outcry was instant- there was even an online petition for a harsher sentence that garnered over 39,000 signatures. However, the AGC remained steadfast in its stance that the accused should be treated fairly and that due process had to be followed in the sentencing.
That may have been a bitter pill to swallow for some, but ultimately sentencing is a complex process that involves a multitude of considerations. Judges have to juggle sentencing principles, guidelines laid down by precedent cases as well as mitigating factors- indeed, Judges walk a fine line when sentencing an offender.
The Art of Sentencing
There are 4 principles of sentencing- retribution, deterrence, prevention and rehabilitation.
A brief explanation of each principle
1) Retribution: Aims to mete out punishments according to culpability and seriousness of crime.2) Deterrence: Aims to discourage others from committing the same crime, and to deter the offender from re-offending.
3) Prevention: Aims to physically prevents an offender from committing more crime by putting them behind bars.
4) Rehabilitation: Aims to give offenders the chance to reform, especially if they are young, first-time offenders or mentally challenged.
While Judges ultimately hand down a sentence, the Prosecution greatly assists in the process by proposing a sentence they feel is most appropriate. Keeping the 4 aforementioned principles in mind, the Prosecution will evaluate other factors such as minimum punishment requirements, the nature of the offence and sentences imposed in precedent cases, before coming to their decision.
Mitigating factors will then be presented by the Defence. These could include, inter alia, the offender’s remorse, the lack of a criminal record, young age or mental incapacitation.
Sentencing guidelines
Singapore has taken steps to introduce certainty into the process of sentencing through the imposition of sentencing guidelines, which are developed through the examination of precedent cases and the study of other countries’ results. These frameworks have become increasingly popular, with 15 guidelines having been developed by the Courts in the past 5 years.
A prominent example would be the four sentencing bands for drink-driving, as evinced by CJ Menon in 2013- each band corresponds to the level of alcohol found in the offender’s body and whether he was driving dangerously.
However, it is important to note that these guidelines are not set in stone. Courts always have the discretion to adjust the sentence in accordance with the facts of each case.
The Penal Code Review
The justice system’s tenacious pursuit of self-improvement culminated in the 2018 Penal Code Review, where updates for the sentencing framework were proposed. For example, some offences have a Mandatory Minimum Sentence (MMS) where all offenders face an unavoidable sentence- this has been recognized as unduly harsh. Presumptive minimum sentences have thus been introduced to aid in cases where the MMS would be unjust, especially for cases involving first time offenders who commit less severe crimes.
In light of case of Annie Ee, the Review also introduced new offences to further protect vulnerable individuals. One new offence would be that of sustained abuse leading to the death of a vulnerable victim, where the punishment would be of the same magnitude as that of culpable homicide of a vulnerable victim, s 304 (b).
Singapore’s shift towards rehabilitaiton
The 2000s saw a marked change in the approach to sentencing. The Community Courts were established to help a large range of offenders, from the young to the mentally disabled. These Courts could get families or victims of the offenders involved so as to identify the reasons for their behavior.
In 2010, the Criminal Procedure Code (CPC) was amended and community sentences were introduced- there are 5 types of these sentences which target different groups of people. These include: Mandatory Treatment Orders, Community Work Orders, Community Service Orders, Short Detention Orders, and Day Reporting Orders.
A brief explanation of each community sentence
1) Mandatory Treatment Order: To treat psychiatric conditions that contribute to criminal behavior2) Community Work Order: To promote a sense of responsibility in the offender for the harm he has caused.
3) Community Service Order: To promote reformation by affording the offender the opportunity to make amends by providing general services to the community (cleaning, repairing etc.)
4) Short Detention Order: Imprisonment not exceeding 14 days. Suitable for immediate reintegration into society.
5) Day Reporting Order: Close supervision of offender, with electronic monitoring where necessary.
As Minister for Law Mr K Shanmugam explained in the Parliamentary Debates for the CPC amendments, these sentences prevent an offender from being displaced from his family, employment and society while still maintaining a punitive effect.
In 2014, the Prisons Act was amended to establish the Conditional Remission System (CRS) and the Mandatory Aftercare Scheme (MAS).
Under the CRS, prisoners who exhibit good behavior can expect a remission of up to one third of their original sentence- however, if they reoffend during the remission period, they will not only be liable for the new offence, but their sentence will also be enhanced. The CRS is complemented by the MAS, which targets ex-offenders who have a higher risk of re-offending- it provides community support, counselling, case management and tight supervision. This process can last up to 2 years, till offenders are rehabilitated and successfully re-integrated into society.
Singapore has certainly made strides when it comes to rehabilitative sentencing, but the question remains- what exactly is the rationale behind this?
Why we need rehabilitation
The importance of rehabilitation, especially for young offenders, was highlighted in the case of PP v ASR. This case involved the rape of a 16-year-old girl by a 14-year-old perpetrator- both the victim and the accused were mentally challenged individuals who fell within the “extremely low” range of intelligence of the “Full Scale Intelligence Quotient” test (IQ test).
In its judgment, the Court referred to Menon CJ’s speech at the Sentencing Conference 2017, where reasons were given as to why rehabilitation is the most important sentencing consideration.
These included the fact that placing young offenders in a prison environment would only aggravate the problem by exposing them to the “adverse moral influence” of older offenders, as well as that society stands to benefit greatly from the rehabilitation of young offenders due to their potential to contribute back to society once re-integrated.
The Court also emphasized that if the accused was rehabilitated, the public’s protection would be enhanced.
In my opinion, the Court made the right decision. Indeed, the shift towards rehabilitation will benefit offenders, especially those who are young or mentally challenged, as it will give them the opportunity to understand the gravity of their actions and to repent. A mere prison sentence could potentially leave these offenders unaware of their moral failings, setting them on an inexorable path towards reoffending.
However, it is important to note that rehabilitation cannot be prioritised over the safety of the public. For example, when sentencing habitual offenders or individuals who can be classified as ‘dangerous’, the principle of deterrence should take precedence over that of rehabilitation. The public’s safety should always be the primary consideration of the Court- if a deterrent prison sentence is deemed to be the better way to protect the public, then it should be favoured.
Conclusion
The sentences meted out in high profile cases are sometimes met with furore, as can be seen from the aforementioned case of Annie Ee. The public’s blinding empathy for victims culminates in anger directed at not only the offender but also the Courts for meting out sentences that are ostensibly too lenient.
However, the public has to understand that the justice system has a multitude of measures in place to ensure that even offenders who have committed heinous crimes are given fair sentences. These include a careful consideration of sentencing principles, guidelines, precedent cases as well as mitigating factors. Even if a sentence appears to be ‘unfair’, it must be recognised as a well-justified outcome that the Court has reached after a laborious and intricate sentencing process.
Ultimately, sentencing has always been labelled an art- and rightfully so.
This article was written by Alvina Logan, NUS Law Batch of 2022
*The views and opinions expressed in this article do not constitute legal advice and solely belong to the author and do not reflect the opinions and beliefs of the NUS Criminal Justice Club or its affiliates.
Bibliography
- Vanessa Paige Chelvan. “Couple ‘tortured’ intellectually disabled waitress, who died after 8 months of abuse”, Channel News Asia <https://www.channelnewsasia.com/news/singapore/couple-tortured-intellectually-disabled-waitress-who-died-after-9445228>
- Petition to increase sentence for abusers of Annie Ee <https://www.change.org/p/appeal-for-harsher-sentence-singaporean-couple-abuses-intellectually-disabled-woman-to-death>
- “Couple who tortured Annie Ee: Prosecutor could not charge them with murder, says AGC”, Channel News Asia https://www.channelnewsasia.com/news/singapore/annie-ee-couple-tortured-prosecutor-murder-agc-9506392
- Selina Lum, “Increase in sentencing guidelines set recently”, The Straits Times < https://www.straitstimes.com/singapore/increase-in-sentencing-guidelines-set-recently>
- Understanding Legal Processes: Sentencing in Singapore, Attorney Generals Chambers https://www.agc.gov.sg/legal-processes/sentencing-in-singapore
- Glenn Ang Yu Jie, “Thoughts on the Penal Code Review”, On the Ground NUS, https://www.nuslawclub.com/ontheground/2018/10/18/pcrc18/
- Sentencing Conference 2017, Keynote Address by Chief Justice Sundaresh Menon, <https://www.supremecourt.gov.sg/Data/Editor/Documents/SAL%20Sentencing%20Conference%202017%20-%20Keynote%20Address%20(Checked%20against%20delivery%20-%20261017).pdf>
- Singapore Parliamentary Debates, Official Report (18 May 2010) vol 87
- Public Prosecutor v ASR, [2018] SGHC 94
