Introduction

The 2018 case of Public Prosecutor v ASR¹ (ASR) centred on an accused person who was primarily charged for 3 offences of aggravated rape and sexual assault by penetration². The accused person and the victim were both afflicted with mental disabilities and were 14³ and 16⁴ years old at the time of the offence respectively. There were two broad concerns raised in the High Court when Justice Woo Bih Li came to his decision. First, there were serious impediments in sentencing the accused due to the lack of sentencing options available to the Court⁵. Second, the Court found that there was an ambiguity in the Criminal Procedure Code (CPC) provisions pertaining to their applicability⁶. The question at hand was whether the provision should be applicable at the time of the commission of the offence or on a later date such as conviction or sentencing.

This article will first discuss the competing principles of rehabilitation and retribution before underlining the specific concerns that arose in the judgment pertaining to the limitations on sentencing options and suggest possible amendments accordingly. This will be followed by a discussion on the ambiguity of the CPC provisions and recommended improvements.

Brief summary

In ASR, the accused had spotted the victim waiting at a traffic light whilst he was taking a break at a 7-Eleven outlet nearby the Bukit Panjang flats where he had been distributing flyers⁷. The accused then followed the victim to her flat and when she got off the elevator he followed her and committed the sexual offences that he was subsequently charged for⁸. This article will not discuss the precise nature of the sexual offence in question, but there was no doubt in the court’s mind that the conduct was repulsive⁹.

Rehabilitation and Retribution

The Prosecution in ASR submitted that the sentencing principles of prevention and retribution should outweigh that of rehabilitation¹⁰, whilst the Defence argued otherwise¹¹.

Rehabilitation is the central goal of a correctional system, which functions on the assumption that offenders can be treated and can be returned to a crime free lifestyle. Rehabilitation includes a wide variety of programs for mental health, substance abuse, and educational services¹². Retribution, on the other hand, functions on the principle that the punishment should fit the crime and can be considered a susceptible principle to the extent that it ranges in doctrines from “an eye for an eye” to “the Golden Rule”¹³.

It is clear that rehabilitative principles tend to be more focused on the offender and the indoctrination of relevant social values, whilst retributive principles tend to be focused on the victim in ensuring that the punishment meted out to the offender can be deemed to be just.

In the present dispute, the Court held that the principle of rehabilitation should guide the eventual sentence since it provided for a “practical longer-term solution to the issues that would inevitably confront the Accused and implicate the broader society”¹⁴. The position of the Court was best encapsulated by the following rhetorical questions asked by the judge: “[W]hat would become of the Accused and of those around him when he is subsequently released in his early thirties? Would society be better protected when the Accused is released from incarceration, stronger and bigger, but lacking insight into the consequences that his choices and conduct carry?”¹⁵.

Therefore, it was clear, that in ASR, the Court had adopted a stance in favour of rehabilitative principles that guided its decision in sentencing the accused to RT instead of imposing the much harsher sentence submitted by the Prosecution.

Criticism of judgment

It is interesting to note the stance adopted by the Court in its judgment. In explaining why it had ruled in favour of a RT and not imprisonment and caning, the Court had adopted a rather dismissive stance towards the Prosecution’s submissions, bringing them up and merely dismissing them as not precluding rehabilitation as a predominant sentencing consideration¹⁶. This is likely due to the polar opposite sentences that the parties were seeking, which the Court understood was a product of the lack of sentencing options provided to the courts by legislation. As such, it is clear that there is a crucial need to augment the statute so as to provide for a greater spectrum of sentencing options that can be applied in unique cases such ASR.

Sentencing options

In arriving at his decision, the Court found that there were severe limitations in the legislation in respect of the sentencing options available in the specific case¹⁷. The Court found following problems with regard to the sentencing options made available to it:

• • There were limited sentencing options available to deal with the accused person’s intellectual disability in the long term¹⁸;

  • There were no relevant provisions in the Mental Health (Care and Treatment) Act¹⁹;

  • There were extremely limited circumstances when a Mandatory Treatment Order (MTO) could be issued pursuant to s 339(3) of the CPC and could not be applied given the facts of the present case²⁰; and

  • There were no provisions with regard to person who suffer from some intellectual disability but are not of unsound mind²¹.
    
    

Furthermore, the Court found that there where there is a statutorily mandated minimum period of incarceration , the Court has no discretion to reduce the period on account of the offender’s intellectual disability²². Moreover, in the context of caning, there was neither an exception made for offenders with intellectual disability nor any discretion given to the courts to account for such a disability²³. There was also no other option to add anything substantive over and above Rehabilitative Training (RT), or as an addendum to enhance the efficacy of a RT sentence²⁴.

It was thus clear that there were strict limitations to the sentencing options that the Court had access to and this led the Court to have to decide between the strict sentence proposed by the Prosecution of 15-18 year’s imprisonment in aggregate and at least 15 strokes of the cane, and the Defence’s proposed sentence of a RT²⁵. In coming to its decision the Court had to weight and evaluate the competing sentencing principles of rehabilitation and retribution, which guided its verdict.

Recommended improvements

It is evident that the courts will never be able to cater to the wide spectrum of cases and parties should there be a limitation on the sentencing options that they have access to. This is particularly true in cases involving accused persons who suffer from mental disabilities such that their culpability is lower and a proper rehabilitative programme can potentially yield positive results pertaining to their reintegration back into society as a responsible citizen. It is clear that carefully tailored rehabilitation programmes are effective²⁶. Furthermore, it has been established that for such accused persons with mental disabilities, their behaviours can often be modified by education or training²⁷.

Therefore, it is submitted that the legislation should be amended to include general provisions allowing courts to order treatment specific to accused persons on their own discretion unless the accused is certified to be of such unruly a character that he cannot be detained in a place of detention or a rehabilitation centre²⁸. Such provisions should be applicable even for offences where there are statutory mandatory sentences. Moreover, there should be a requirement for a professional and credible medical certification of the accused person’s mental disability.

This will allow for the courts to have greater discretionary powers in unique cases such as the one in ASR, where the accused was mentally disabled but did not suffer from an unsoundness of mind²⁹. As a consequence, the courts will be able to deal with cases of mentally disabled offenders more effectively instead of having to decide between overly harsh retributive punishments and reformative training with questionable effectiveness.

Ambiguity within the CPC provisions

The Court in ASR had also raised concerns regarding the time at which the CPC provisions pertaining to the assessment of the offender’s age³⁰ are applicable and stated that this should be clarified by way of legislation³¹. The Court found that indeed if the application date of the legislation is not the date of commission of the offence but a later date, such as the date of conviction or sentencing, there may arguably be a heavier punishment with retrospective effect which appears contrary to the basic notion of criminal law.

While the judge appreciated the arguments in support of the view that the applicable date should be later than the date of the commission of the offence, it is submitted that this concern was especially pressing in ASR where pre-trial formalities had delayed the hearings by nearly two years³², over which time the accused had gone past 16 years old and was no longer classified as a juvenile as provided for in the CPC.

Thus, it is clear that in cases with a similar factual matrix as the one in ASR, where delay in proceedings and hearings may cause the accused to go past the threshold age of a juvenile, it is important to seek clarity as to when the CPC provisions apply as this will affect the gravity of the sentence that will eventually be meted out.

Recommended improvements

In light of the concerns raised by the Court, it is submitted that two amendments should be made by way of legislation. First, the CPC provisions should be clarified to be applicable at the date of the commission of the offence. The primary reason behind this is, as the Court highlighted in ASR, which is that there is a risk of applying a heavier punishment with retrospective effect. Furthermore, in instances such as the one in ASR, where pre-trial formalities had caused the significant delay, it would be unfair the accused person to be faced with harsher punishments when he eventually gets trialled as an adult.

Similarly, the second proposed amendment is that s 33(6) of the Children and Young Persons Act³³ (CYPA) should be amended to state that the assessment of the offender’s age should occur at the time of the commission of the offence instead of the date of the commencement of the hearing.

The fundamental principle at play here would be that of ensuring that the eventual punishment matches the culpability of the offender at the time of the offence. If the offender was a juvenile at the time of the commission of the offence, it is clear that his culpability would be lesser than that of an adult who is deemed to be fully aware of the gravity of his actions³⁴. It would be gravely unfair to the accused person to be trialled as an adult simply due to the delays in the hearings and proceedings causing him to become ex post facto older. Hence, the application of the date of the abovementioned provisions should be at the time of the commission of the offence.

Conclusion

The case of ASR raised significant and pressing concerns pertaining to sentencing options and the ambiguity in the time of application of the CPC provisions. It is a unique case where the accused fell through the cracks of the Singapore legal system due to his special circumstances and it showed that the courts are not adequately equipped to deal with such cases.

In the pursuit of justice, it is necessary to ensure that the courts are given greater discretionary powers in sentencing such offenders to rehabilitative programmes specifically tailored to their needs and that the CPC provisions, together the CYPA, are amended to provide that the date of assessment of the age of an accused person should be the date of the commission of the offence instead of any later date.

Although the legal system has remained rather effective in ensuring that offenders are justly dealt with, this will not be the case all the time across a plethora of factual matrices. It is important for the legislature to recognise the shortcomings in legislations and to supplement them in an attempt to clarify any ambiguities and to address any gaps in them.

Written in 2019 by Arjit Pandey and Ashleigh Gan, Class 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

[1] Public Prosecutor v ASR [2018] SGHC 94.

[2] Ibid, at [1].

[3] Ibid.

[4] Supra, n 1. At [5].

[5] Supra, n 1. At [138].

[6] Supra, n 1. At [168].

[7] Supra, n 1. At [22].

[8] Supra, n 1. At [22]-[27].

[9] Supra, n 1. At [80].

[10] Supra, n 1. At [39].

[11] Supra, n 1. At [44].

[12] Huebner, B. M. (2009, December 14). Rehabilitation. Retrieved December 27, 2018, from http://www.oxfordbibliographies.com/view/document/obo-9780195396607/obo-9780195396607-0046.xml#firstMatch

[13] Hirby, J. Definition of Retribution in Criminal Justice. Retrieved December 27, 2018, from https://thelawdictionary.org/article/definition-of-retribution-in-criminal-justice/.

[14] Supra, n 1. At [102].

[15] Supra, n 1. At [101].

[16] Supra, n 1. At [108].

[17] Supra, n 5.

[18] Supra, n 1. At [139].

[19] Supra, n 1. At [140].

[20] Supra, n 1. At [141]-[142].

[21] Supra, n 1. At [143].

[22] Supra, n 1. At [144].

[23] Supra, n 1. At [146].

[24] Supra, n 1. At [147].

[25] Supra, n 1. At [34].

[26] Miceli, Victoria (2009), Analyzing the Effectiveness of Rehabilitation Programs. Senior Honors Projects. Paper 158. Retrieved December 2017, from http://digitalcommons.uri.edu/srhonorsprog/158.

[27] Joe P. Tupin & Harold A. Goolishian, Mental Retardation and Legal Responsibility, 18 DePaul L. Rev. 673 (1969), at 681.

[28] See s 37(2) of the Children and Young Persons Act (Cap 38, 2001 Rev Ed).

[29] Supra, n 21.

[30] See s 2(1) of the Criminal Procedure Code (Cap 68, 2012 Rev Ed).

[31] Supra, n 6.

[32] Supra, n 1. At [32].

[33] See s 33(6) of the Children and Young Persons Act (Cap 38, 2001 Rev Ed).

[34] Public Prosecutor v Mok Yuen Ping Maurice [1998] 3 SLR(R) 439 at [21].