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Frameworks that help courts in sentencing

Frameworks that help courts in sentencing

Source: Straits Times
Article Date: 28 Dec 2020
Author: Dominic Low

AGC proposes guidelines on appropriate punishments based on relevant factors but it is also the judge who ultimately decides the sentence, as judges are not obliged to accept the AGC's proposed frameworks.

Earlier this year, deputy public prosecutors from the Attorney-General's Chambers (AGC) were faced with a sentencing dilemma in the first case of a new offence in Singapore.

An adult had permitted individuals under 21 to consume a drug in her possession.

Noor Fadhilah Azlan, 28, pleaded guilty to one count of this offence as well as other drug-and Customs-related charges.

She had offered drugs to three juveniles last year. Two of them were 14 years old at the time while the third was 13.

The prosecution team could not rely on past cases when proposing a sentence, as the offence was introduced only on Aug 1 last year when amendments to the Misuse of Drugs Act took effect.

Instead, the team formulated a sentencing framework for the offence, which consisted of guidelines on the appropriate punishment based on relevant factors, and relied on it to propose a sentence of at least 36 months' jail.

The AGC did the same in the cases of Takaaki Masui and Katsutoshi Ishibe, on which Justice Chan Seng Onn wrote a judgment dated Dec 2. The two men had appealed to the High Court against their jail sentences for corruption offences.

The three cases were among those in which the AGC proposed sentencing frameworks as part of its practice of assisting the courts in criminal matters.

While various statutes set out the range of punishment for offences, they do not include guidelines to follow when sentencing each offender.

For example, a person guilty of outraging someone's modesty can be jailed for up to two years, or fined, or caned under the Penal Code. He may also face any combination of the punishments.

But the Penal Code does not specify situations where a jail term would be more suitable than a fine or caning, among other things.

It also does not state factors to consider when deciding the duration of the jail term.

"Conventionally, the AGC has looked to sentencing precedents for guidance on how a later case should be sentenced," said Chief Prosecutor Kow Keng Siong.

But this approach is not always possible or helpful in some situations, such as when the offence is new, as in Noor Fadhilah's case, or when the sentences in previous cases appear to be inconsistent with one another.

Without a clear set of holistic guidelines, sentencing could end up being highly subjective and even arbitrary. It is also common for judges to ask the prosecution for its views on the appropriate sentence for an offence, said Mr Kow.

"In some cases, the prosecution has found it helpful to develop sentencing frameworks that take into account and rationalise the sentencing precedents," he said.

The frameworks, which differ for each offence, would assist the AGC in taking a consistent and principled approach when proposing sentences for similar offences.

A sentencing framework would also be useful to have "at the very start", if an increase in cases of the same offence is expected in the near future, said Mr Kow.

An example would be the sentencing framework for first-time breaches of Covid-19 regulations that was first proposed in the case of 56-year-old Christopher Arumutham in May.

He was one of the first few people charged with breaching the rules that were introduced in April. He was jailed 11 weeks for his offence and other crimes, including using criminal force on a police officer.

The framework, which sets out fines for less severe breaches and jail terms for more serious ones, has been applied when dealing with subsequent offenders.

They include seven people who breached Covid-19 regulations at Robertson Quay in May, and eight individuals who were part of an illegal 12-person gathering at Lazarus Island on Aug 8.

The seven offenders were fined between $8,000 and $9,000, while the eight individuals were fined $3,000 each.

In formulating a sentencing framework, the AGC takes into account various considerations, such as having no "sudden unexplainable jumps or gaps" in the penalty of an offence as its severity level increases.

The starting sentence for the most severe level of the offence would also be lower than the maximum penalty, to give room for an increase in punishment if there are aggravating factors. It is typically set at two-thirds or three-quarters of the maximum prescribed sentence, said Mr Kow.

Such methodology is based on several patterns that the AGC has observed in structured sentencing guidelines contained in various judgments, of which about 80 have been issued since 2013.

Mr Kow said each sentencing framework undergoes rigorous stress-testing with a team of prosecutors before it is submitted before the court.

But the AGC does not propose sentencing frameworks for every case. In most situations, the prosecutor can rely on previous cases if they are consistent.

It is also the judge who ultimately decides the sentence, as judges are not obliged to accept the AGC's proposed frameworks.

"On occasions, they have established sentencing frameworks that take into account different considerations," Mr Kow said.

In other instances, judges have expressly accepted the AGC's proposed frameworks.

The court in Noor Fadhilah's case eventually decided on a jail term of two years and six months for the new offence, bringing her total sentence to seven years and nine months' jail with a fine of $10,300.

"The district judge did not disagree with the sentencing methodology, although she imposed a slightly lower sentence eventually, due to the manner (in which) she calibrated some of the sentencing factors," said Mr Kow.

For the cases involving Japanese nationals Masui and Ishibe, Justice Chan chose to formulate his own sentencing framework for private sector corruption offences.

He came up with a modified version of the typical matrix setting out nine sentencing ranges, and included a section to account for extreme levels of harm and culpability.

Using the framework in the cases before him, he ruled that the original sentences were manifestly excessive and reduced them, but he also added a fine.

Mr Kow said that sentencing is "not a science", with each party to a case - prosecutor, defence lawyer, judge and the accused person - possibly having different views on what sentence should be imposed.

But what is important is to first properly understand the facts of a case before commenting on whether the sentence imposed is appropriate, he said.

"It is human nature to sometimes draw inferences when looking at a set of facts. That said, it is unwise to form a strong opinion about a matter based simply on inferences and speculation," he added.

Mr Kow said that all parties in a case are "doing their best to perform their job".

"And our job, basically, is to pursue justice in a way that is fair to both accused persons and victims alike," he said.

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

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