23 September 2017
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Criminal law, procedure & sentencing feed-image   

Increase in sentencing guidelines set recently

Straits Times
14 Sep 2017
Selina Lum

Lawyers agree these promote coherence and consistency, but caution against rigidity

In what appeared to be an especially fertile period over the past five years, the appeals court set comprehensive and structured sentencing guidelines in no fewer than 15 judgments for offences as diverse as drink driving to national service evasion.

Of these, six were penned by Chief Justice Sundaresh Menon while another three were decisions made by a panel of three judges on which he sat.

Mr Sunil Sudheesan, head of the criminal department at Quahe Woo & Palmer LLC, said: "I think the court, under the leadership of CJ Menon, is looking to solve sentencing disparity issues."

Law lecturer Benny Tan, from the National University of Singapore (NUS), said that while guideline judgments are not new, there has been a discernible increase in effort to issue judgments setting out sentencing guidelines.

"Our judges have been issuing them since a few decades ago. It is the frequency of such judgments, depth of consideration and range of methods in setting out guidelines that have definitely increased in the past several years," he said.

For instance, in 2013, CJ Menon spelt out four sentencing bands for drink driving, in the case of drunk driver Edwin Suse Nathen.

Each band indicates the range of fines and driving bans corresponding to the level of alcohol found in the offender's body.

The trend dovetails with CJ Menon's move in March 2013, four months after he had taken office, to appoint seven judges to form a sentencing council that had the aim of identifying areas in which a guideline judgment may promote coherence or consistency in sentencing.

When he announced the formation of the council at Singapore's first sentencing conference in October 2014, CJ Menon said sentencing guidelines provide a degree of predictability and achieve some measure of consistency.

Guidelines can also help to ensure that the full range of sentencing options is utilised by sentencing judges, he said.

Mr Sudheesan, who is president of the Association of Criminal Lawyers of Singapore, said he frequently tells people who consult him on non-accident drink driving cases that they do not really need a lawyer as the court will likely follow the guidelines stipulated in the Edwin Suse Nathen case.

Mr Tan, whose research interests include sentencing law, noted that a number of the recent guideline judgments were issued by a specially constituted High Court Bench.

In Singapore, it has been the practice for a single judge to hear criminal appeals. The sentencing council decided in 2013 that cases deserving of guideline judgments should go before a panel of three judges.

Council chairman, Judge of Appeal Chao Hick Tin, said in 2014: "With the benefit of having three legal minds deliberating an appeal, that would better ensure that the Bench would have more fully explored the various sentencing alternatives and all the implications of the proposed sentencing framework."

Mr Tan said their judgments have an importance and force in law that approximates that of a judgment issued by the Court of Appeal, the highest court in the land.

While it is often said that each case turns on its own facts, in criminal law, judges rely on precedents and benchmarks to ensure that like cases are treated alike.

In a 2002 judgment, former chief justice Yong Pung How described a benchmark as "a sentencing norm prevailing on the mind of every judge" to ensure consistency and fairness.

A benchmark is not cast in stone but provides the focal point in determining sentences in subsequent cases, he added.

The approach of beginning with a single benchmark and then adjusting the sentence upwards or downwards based on the facts of the case was described in a 2008 Court of Appeal judgment by former chief justice Chan Sek Keong as the "conventional approach" in Singapore.

However, over the years, judges have also used other approaches.

In 2006, Justice V.K. Rajah classified rapes into four categories and set benchmark sentences for each. That largely guided sentences for rapes until it was overhauled by a three-judge panel this year (see story headlined Some Of The Guidelines).

In 2014, in the case of Poh Boon Kiat, CJ Menon formulated two sentencing matrices for vice-related offences based on two categories of harm and three levels of culpability.

In the case of Eric Ding in 2015, Justice Chan Seng Onn set out a sentencing framework for match-fixing in the form of a graph.

CONSISTENCY V FLEXIBILITY

NUS' Mr Tan suggested a few reasons for the trend of setting guidelines.

Consistency reflects well on the fairness of a legal system, he said, and sentencing guidelines ultimately go towards increasing transparency and legitimacy in the sentencing process.

This stronger desire to promote greater coherence, consistency, rationality and clarity is paired with a greater willingness to put in more resources to come up with effective and useful sentencing guidelines.

He noted that to come up with a framework that can be applied broadly, the courts may have to survey hundreds of precedents, and think about the various ways an offence can be committed.

The courts may also have studied the experience of other countries, such as Britain and the United States, with sentencing guidelines, or may have received feedback from criminal law practitioners about a lack of clarity on sentences for certain offences.

There are instances in which the appellate court considers laying down a sentencing framework but ultimately declines to lay down clearly defined rules.

One such case is that of former school principal Koh Yong Chiah, who was convicted of giving false information in lying to a Ministry of Education officer about his affair with a vendor.

The court said the wide variety of misconduct caught under the offence "makes it exceptionally difficult to identify a single set of principal factors which can form the basis of a sentencing framework".

However, the court did give broad guidance for when a jail term should be imposed and identified factors that can affect the sentence.

Mr Tan said that while such judgments do not set out a sentencing framework or provide very specific guidelines, they are still considered guideline judgments through their prescription for how judges should approach sentencing.

As they are aimed at providing clarity and consistency, sentencing guidelines are generally welcomed, but lawyers caution against applying them too rigidly.

Mr Eugene Thuraisingam, a partner of Eugene Thuraisingam LLP, said: "It is also important that judges have the flexibility to take into consideration unique circumstances of the offence and the offender."

Still, Mr Tan noted: "Our higher courts have repeatedly emphasised that their frameworks and guidelines are not meant to be applied in an indiscriminate manner."

In his view, the best sentencing guidelines are those that strike a balance between promoting a good level of consistency and rationality, without overly restricting a judge's discretion to calibrate the sentence according to the facts of each case.

Mr Sudheesan, meanwhile, thinks "it would take brave judges to depart from such guidelines" even though there is room to do so.

"Some old judges say that sentencing is an art. I agree," he said. "The sentences and guidelines now may be suitable for the current season, but things change."


SOME OF THE GUIDELINES

Offence: Non-accident drink driving

Guideline: Four sentencing bands, according to the level of alcohol in driver's body. The higher the alcohol level, the higher the fines and longer the driving ban.

Offence: Smuggling more than 2kg of tobacco products

Guideline: A term of imprisonment will generally be imposed. Six graduated sentencing ranges all with their own starting points, corresponding to the quantity of tobacco smuggled, from three to six months' jail (for 2kg to 50kg) to 30 to 36 months (for more than 400kg).

Offence: Various vice-related offences, including procuring a prostitute, living on immoral earnings and managing a brothel

Guideline: Sentencing benchmarks revised from fines to a jail term. The court formulated sentencing matrices to determine indicative sentencing ranges, based on three degrees of culpability and two levels of harm. Offence: Trade mark infringement Guideline: Three jail term ranges, depending on whether the offender's involvement is low, moderate or high. Offence: Non-capital cannabis trafficking Guideline: Three sentencing ranges based on the quantity of cannabis. The higher the quantity, the longer the jail term.

Offence: Rape

Guideline: Three sentencing bands that correspond to the severity of the rape, depending on the number and intensity of aggravating factors

Offence: Drink driving involving physical injury or property damage

Guideline: Four sentencing bands, depending on the severity of harm and the level of the offender's culpability, which is determined by the level of alcohol in his body and whether he was driving dangerously.


CHANGE EXPECTED

Some old judges say that sentencing is an art. I agree... The sentences and guidelines now may be suitable for the current season, but things change.

MR SUNIL SUDHEESAN, head of the criminal department at Quahe Woo & Palmer LLC.

INCREASED FREQUENCY

Our judges have been issuing them since a few decades ago. It is the frequency of such judgments, depth of consideration and range of methods in setting out guidelines that have definitely increased in the past several years.

NUS LAW LECTURER BENNY TAN

Source: Straits Times © Singapore Press Holdings Ltd. Permission required for reproduction.