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

Supreme Court Note: Public Prosecutor v Sakthikanesh s/o Chidambaram and other appeals and another matter [2017] SGHC 178 (principles and benchmarks for sentencing NS defaulters)

Supreme Court Note
18 Aug 2017

The High Court allowed three appeals brought by the Public Prosecutor on the sentences meted out to three individuals who had defaulted on their obligations to serve NS. In its written grounds of decision (“GD”), the court made a number of observations on the applicable principles for the sentencing of NS defaulters, and laid down new sentencing benchmarks.

The court held that the standard of performance of a NS defaulter who returned to serve NS should not, as a general rule, be a relevant consideration for the purpose of sentencing. Exceptional NS performance, which happens after the conduct constituting the offence, reduces neither the defaulter’s culpability nor the harm he had caused by his offence. The culpability of NS defaulters lies in the unfair advantage that they have gained over their law-abiding peers by being able to pursue their personal goals while their peers were serving their NS obligations. In cases involving extended periods of defaults, the NS defaulters in fact avoided part of, or the whole of, their NS obligations if they returned at an age where they can no longer serve full-time NS or complete their reservist obligations in full. They harm the operational readiness of the armed forces, and also the morale of fellow citizens who have made personal sacrifices to serve their NS obligations when they were called upon to do so. This can in turn lead to growing resentment and the loss of public support for NS, threatening the ability of our armed forces to ensure Singapore’s national security: at paras 50 – 52 and 56 of the GD.

There are other reasons why exceptional NS performance should not be a mitigating factor. Since exceptional NS performance would be determined not just by the individual’s attitude and effort, but also by his innate aptitude and abilities such as physical fitness, allowing an NS defaulter to enjoy a discount off his sentence because he performed well when he finally decided to serve NS may be seen as, or tantamount to, giving preferential treatment to certain individuals with certain qualities. It will additionally introduce inequity to the sentencing process because it will unfairly prejudice not only NS defaulters who are less fit physically but also those who are charged and sentenced before they have substantially performed their NS obligations and so have not had the opportunity to have their performance at NS assessed. Further, it can undermine the sentencing objective of general deterrence, as it may send a message to potential defaulters that they can defer their NS obligations and try to make up for them later by performing well. Finally, since it is the obligation of every male Singaporean to do his best in his NS, it will be wrong for a defaulter who has done no more than what many, if not most, of his law-abiding fellow National Servicemen are doing, to be rewarded with a sentencing discount: at paras 53 – 55 of the GD.

In the determination of the appropriate sentence for an NS defaulter, the length of the period of default should, as a general rule, be the key consideration. In general, a period of default exceeding two years will attract a custodial sentence. This is because a person who has defaulted on his NS obligations for two years will only commence serving full-time NS when his peers have already completed theirs, and this derogates from the principle of equity which entails everyone who is required to serve NS to serve at around the same age so that they would all bear similar interruptions to their studies or careers at similar stages of their lives. For NS defaulters whose periods of default are around 23 years or more and who have therefore evaded the whole of their NS obligations, the statutory maximum sentence of 36 months’ imprisonment should be the starting point in the determination of the appropriate sentence: at paras 57 and 61 – 65 of the GD.

In between the two ends of the custodial range will be those who, by reason of their default, have impaired their ability to serve their NS obligations, either in terms of their physical ability or in terms of duration. The sentence to be meted out to an NS defaulter should not increase linearly with the length of his period of default. Instead, the rate of increase in sentence should be amplified with longer periods of default, to reflect the decline in a person’s physical fitness with age (and hence his ability to serve NS especially in a combat vocation), and to create a progressive disincentive for NS defaulters to delay their return to resolve their offences. In addition, there should be a spike in the sentence to be meted out to an NS defaulter once his period of default crosses the 10-year mark, since he would unlikely be able to serve his post-operationally ready date reservist obligations in full before he reaches the statutory age of 40: at para 66 of the GD.

The court made further observations about the relevance of other factors in the sentencing of NS defaulters:

(a)          Degree of substantial connection to Singapore: The sentence to be meted out should not be calibrated based on whether an NS defaulter has a substantial connection to Singapore, or the amount of benefits he has enjoyed as a Singapore citizen. Any other view would severely undermine the principle of universality and equity by differentiating between classes of Singapore citizenship, when in truth, no such differentiation exists: at para 70 of the GD.

(b)          Voluntary surrender: This may be a mitigating factor, if it evidences remorse. There is also public interest in encouraging NS defaulters to surrender early so that they can still serve their NS obligations. An early surrender will generally attract greater mitigating value than a surrender later in the day: at paras 76 – 80 of the GD.

(c)          Plea of guilt: A plea of guilt would, in most cases, attract either very limited or no mitigating value at all. The nature of NS default offences is such that these offences can easily be proved. Hence, a person accused of defaulting on his NS obligations would, in reality, have very little choice but to plead guilty in the face of undisputed evidence against him, such that his plea of guilt should not be said to have been motivated by sincere remorse. Generally, in cases involving NS defaulters who voluntarily surrendered and then pleaded guilty, the mitigating value of his voluntary surrender and plea of guilt should be considered holistically, with a single discount being applied. This is because there is considerable overlap in their mitigating value – both are mitigating insofar as they reveal contrition on the NS defaulter's part: at paras 82 –83 of the GD.

On it being wrong to be rewarded with a sentencing discount: see Public Prosecutor v Sakthikanesh s/o Chidambaram and other appeals and another matter [2017] SGHC 178 paras 53 – 55 of the judgment.

On the starting point of the determination of the sentence: see Public Prosecutor v Sakthikanesh s/o Chidambaram and other appeals and another matter [2017] SGHC 178 paras 57 and 61 – 65 of the judgment.

To view this judgment, click <here>.

Disclaimer: The above is provided to assist in the understanding of the Court’s judgment. It is not intended to be a substitute for the reasons of the Court. The full judgment of the Court is the only authoritative document.