Aims of Punishment

Question 1

S 230 Criminal Procedure Code (Cap 68, Rev Ed 2012)

Answer 1

If the court finds the accused guilty, it must record a conviction and comply with the procedure in s228 CPC (related to the hearing of addresses on sentence and the mitigation plea) after which it shall pass sentence in accordance with the law.

Question 2

S 228 Criminal Procedure Code (Cap 68, Rev Ed 2012)

Answer 2

1. Address on sentence may include criminal records of accused; any victim impact statement; and any relevant factors which may affect the sentence.
2. Court must then hear any plea in mitigation of sentence by the accused. Prosecution has right of reply.

Question 3

Tan Fook Sum v PP: Judicial Principles?

Yong Pung How CJ

Answer 3

1. Deterrence (most prominent in CCM)
   [18] Deterrence: Specific deterrence appropriate where offender is a persistent offender or where the crime is premeditated.
   [27] “Problem must be nipped in the bud before it becomes prevalent”
2. Retribution
   [16] Retribution principle: Offender must pay for what he has done to restore the order of society which has been disrupted by his crime.
3. Rehabilitation
   [20] Public interest principle: Reformulation of the retribution principle.
   For prevalent offences, more severe sentences may be met out to mark the Court’s disapproval and to acknowledge the seriousness of the offence.
4. Prevention

Question 4

Tan Fook Sum v PP: Approach to sentencing?

Yong Pung How CJ

Answer 4

1. Judge looks at what he can and cannot do
2. Judge looks at ambit of statutes
3. Guided by judicial principles

Question 5

Tan Fook Sum v PP: Concerns of Courts?

Yong Pung How CJ

Answer 5

If sentencing norms not set out as soon as possible to deter such conduct, the incidence of such cases may increase.

• Public has legitimate expectation to be protected from such acts.
• Emphasis on considerations of general deterrence and considerations of retribution and the public interest.
• “Problem must be nipped in the bud before it becomes prevalent” [27]
• Severity of sentence should correspond to degree of harm caused to the victims, which may include psychological harm.

Question 6

Tan Fook Sum v PP: Mitigating Circumstances?

Yong Pung How CJ

Answer 6

Mitigating circumstances:
[32] No previous convictions and is a first offender is of little assistance to the respondent, since there is no positive evidence of his character.

Question 7

What does Tan Fook Sum v PP [1999] 2 SLR 523 SCM 87 discuss?

Answer 7

1. Approach to Sentencing
2. Judicial Principles
3. Concerns of Courts
4. Mitigating Circumstances

[Wilfully endangering safety of an aircraft, passengers, and crew by lighting a fire in aircraft’s toilet while in flight. PP appealed against sentence of S$2,000.00 or in default 4 weeks’ imprisonment. Extended by 12 more months’ imprisonment.]

Question 8

What does PP v Vitria Depsi Wahyuni (alias Fitriah) [2013] 1 SLR 699 (SGCA) discuss?

Answer 8

Sentencing considerations in cases of physical violence in domestic worker-employer relationships.

[16yo maid killed elderly employer after being scolded. PP appealed against sentence of 10 years’ imprisonment (made on old s 304(a) PC and maid’s youth and low IQ). Enhanced to 20 years’ imprisonment.]

Question 9

PP v Vitria Depsi Wahyuni (alias Fitriah):

On sentencing considerations of retribution and deterrence?

Answer 9

Particularly relevant in cases of physical violence committed within the domestic worker-employer relationship.

PP v Purwanto Parji at [21]-[41]:
“… the sanctity of hearth and home should be respected and preserved in such a manner that both household members and domestic workers enjoy secure expectations and total peace of mind that physical violence in any form is alien and wholly impermissible in the context of their relationship.”

Question 10

PP v Vitria Depsi Wahyuni (alias Fitriah):

On public interest?

Answer 10

Because of peculiar reliance on foreign domestic workers, both employers and domestic workers must be able to enjoy peace of mind being served and serving in the same confines of a domestic setting for the duration of their relationship.

Being a dissatisfied party to this relationship does not give that party the prerogative to resort to inflicting violence against the other party.

Question 11

Sim Gek Yong v PP

Answer 11

Public interest is the Court’s foremost consideration when deciding on an appropriate sentence.

Should consider whether sentence is necessary and justified by the public’s concern in deterring and preventing a particular type of criminal conduct (also seen in Angliss Singapore v PP).

Question 12

PP v Law Aik Meng [2007] 2 SLR 814:
Specific deterrence?

(VK Rajah JA)

[Malaysian man skimmed data from ATMs as part of a syndicate to make cloned ATM cards to make fraudulent withdrawals.]

Answer 12

[21] Usually in cases where crime is premeditated, and there is conscious choice and effort on the part of the defendant to commit crimes.

Question 13

PP v Law Aik Meng [2007] 2 SLR 814:
General deterrence?

(VK Rajah JA)

Answer 13

(Cites Sim Gek Yong v PP)

[24] Aims to educate and deter other like-minded members of the public by making an example of an offender (Meeran bin Mydin v PP).

Examples include:
• Offences affecting public safety
• Prevalence of the offence
• Public disquiet
• Offences of several victims

However, punitive sanction in the name of deterrence should not contravene the principles of proportionality or retributive justice.
(Tan Kay Beng v PP)

Question 14

Tan Kay Beng v PP

Answer 14

[30] Deterrence must always be tempered by proportionality in respect of the severity of the offence committed and the moral and legal culpability of the offender.

Question 15

PP v Law Aik Meng [2007] 2 SLR 814:
What does it concern?

(VK Rajah JA)

Answer 15

Deterrent Sentencing Policy

Question 16

PP v Goh Lee Yin and Anor [2008] 1 SLR 824:
What does it concern?

(VK Rajah JA)

Answer 16

Balancing of Interests

[Kleptomaniac woman with prev convictions for similar offences shoplifted while on bail. DC sentenced to 1 day’s imprisonment and S$8,000 fine. Upon appeal, sentence not enhanced and probation of 18 months imposed.]

Question 17

PP v Goh Lee Yin and Anor [2008] 1 SLR 824:
General principles of sentencing?

(VK Rajah JA)

Answer 17

[59] In deciding on which of the four principles to apply, remember that principles that are most relevant and have the greatest importance in a case would substantially impact the type and extent of sentence imposed.

Serves to punish the offender and deter potential offenders through fear of punishment and to influence offenders who have been appropriately sentenced not to offend again.

(Chua Tiong Tiong v PP)

Question 18

Chua Tiong Tiong v PP

Answer 18

Must strive to achieve a proper balance of the four sentencing principles.

Question 19

PP v Goh Lee Yin and Anor [2008] 1 SLR 824:
On rehabilitation?

(VK Rajah JA)

Answer 19

[97] Rehabilitation aims to discourage the commission of future offences by the offender.

Also seeks to alter the values of the offender so that he/she no longer desires to commit criminal acts by reducing or eliminating the factors which contributed to the criminal conduct.

Question 20

PP v Goh Lee Yin and Anor [2008] 1 SLR 824:
On public interest?

(VK Rajah JA)

Answer 20

To consider which principles should take precedence in trying to advance the greater public interest, to keep the offender from re-offending.
- Does not mean that courts prioritise public interest to the exclusion of individual interest.

When the courts tailor sentences, there is a point where public interest remains constant, such that the individual interest takes over predominantly, even exclusively.

• Sentencing principle might be broad advancement of public interest
• Specific manner of rehab focuses on the manner of reform best suited for the offender.

Question 21

Lim Ghim Peow v PP [2014] 4 SLR 1287:
Mentally disordered offenders?

[A set his ex-lover on fire; she later died from her injuries. A sentenced to 20 years’ imprisonment.]

Answer 21

General deterrence may be given much less weight if the offender suffering from a mental disorder at the time of the offence, particularly if the mental disorder was causally related to the offence.

Question 22

General deterrence for mentally disordered offenders?

Answer 22

Mental disorder does not automatically reduce the importance of the principle of general deterrence in sentencing. Much depends on the circumstances of each individual case.

If mental disorder does not affect the offender’s capacity to appreciate the gravity and significance of his criminal conduct, the application of the sentencing principle of general deterrence may not be greatly affected.

Question 23

PP v Goh Lee Yin and Anor [2008] 1 SLR 824:

Why might specific deterrence be of limited application for mentally disordered offenders?

Answer 23

[79] Specific deterrence is premised on the assumption that the offender can balance and weigh consequences before committing an offence.

[86] Specific deterrence may remain relevant in instances where the offence is pre-meditated or where there is a conscious choice to commit the offence. (E.g. kleptomaniac knowingly skips treatment)

Question 24

PP v Mohammad Al-Ansari bin Basri:

On young offenders?

Answer 24

Rehabilitation is dominant consideration if offender is 21 years and below.

Question 25

PP v Koh Wen Jie Boaz [2016] 1 SLR 334:

Approaches the sentencing of a youthful offender in 2 stages?

Answer 25

1. ID and prioritisation of sentencing considerations. This will set the parameters for the second stage of the inquiry.
2. To select the appropriate sentence that would best meet those sentencing considerations and the priority placed.

Question 26

PP v Koh Wen Jie Boaz [2016] 1 SLR 334:

Stage 1?

Answer 26

Primary sentencing consideration for youthful offenders will generally be rehabilitation.

This can be diminished or eclipsed by such considerations as deterrence or retribution where the circumstances warrant.

Question 27

PP v Koh Wen Jie Boaz [2016] 1 SLR 334:

What overrides rehab principle in Stage 1?

Answer 27

Broadly speaking:
1. Offence is serious

2. Harm caused is severe
3. Offender is hardened/recalcitrant
4. Conditions do not exist to make rehabilitative sentencing options such as probation or reformative training viable

Question 28

PP v Koh Wen Jie Boaz [2016] 1 SLR 334:

Stage 2 - Probation?

Answer 28

Primary object is the swift reintegration of the offender back to society, and provides support to assist him in avoiding the commission of further offences.

Question 29

PP v Koh Wen Jie Boaz [2016] 1 SLR 334:

Stage 2 - Reformative Training?

Answer 29

Allows the court to sentence the offender to a rehabilitative programme under a structured environment while avoiding the danger of exposing the young offender to the potentially unsettling influence of an adult prison environment.

Question 30

Muhammad Nur bin Abdullah v PP [2018] 1 SLR 114:

What did it discuss?

Answer 30

Whether the “Forward-looking Approach” or the “Backward-looking Approach” should be used by the Court to interpret the provisions.

Question 31

Muhammad Nur bin Abdullah v PP [2018] 1 SLR 114:

What is the Forward-looking Approach?

Answer 31

Where offender’s conviction date on OG offence brought forward to the date of the breach proceedings.

Consistent with plain and purposive reading of the Relevant Provisions. Also more logical.

Makes sense because the court in the breach proceedings is re-sentencing the applicant for breaching his probation. It would therefore need to be apprised of all the matters that had transpired since he was sentenced for the OG Offence. This would include matters favourable to the applicant, such as his good conduct and cooperation during probation (apart from the commission of further offences).

Question 32

Muhammad Nur bin Abdullah v PP [2018] 1 SLR 114:
S 9(5) of the Probation of Offenders Act in context of the Forward-looking Approach?

Answer 32

“just” in “if he had just been convicted” in s 9(5) of the Probation of Offenders Act embodies the Forward-looking Approach

• Effect is to bring the conviction forward in time so that the court in the breach proceedings is deemed to be the court that convicted the offender despite the fact that the offender had been convicted earlier.
• Court treats offender as being notionally convicted on the date of breach proceedings for the purposes of re-sentencing him on that date.
• Necessary because the offender cannot be convicted a second time on the same offence.

Question 33

Muhammad Nur bin Abdullah v PP [2018] 1 SLR 114:

What is the Backward-looking Approach?

Answer 33

Requires court to deal with applicant as if the events that had transpired since the OG Offence did not take place.

This would be highly artificial and would require the court to ignore the obvious fact that the applicant was now over 21 years old and that he had committed multiple further offences on several occasions after being placed on probation for the OG Offence.

Question 34

Kalaiarasi d/o Marimuthu Innasimuthu v PP [2012] 2 SLR 77:

On Community Based Sentencing?

Answer 34

[39] Legislative intent is to allow for more flexibility in balancing the various sentencing principles in individual cases.

CPC 2010 is a recognition that custodial sentences, caning or a fine may not be appropriate for all offences and/or all offenders.

Question 35

Mohamad Fairuuz bin Saleh v PP [2015] 1 SLR 1145:

On Community Based Sentencing - Mandatory Minimum sentence?

Answer 35

A sentence where a minimum quantum for a particular type of sentence is prescribed, and the imposition of that type of sentence is mandatory.

Question 36

Mohamad Fairuuz bin Saleh v PP [2015] 1 SLR 1145:

On Community Based Sentencing - Specific Minimum sentence?

Answer 36

A sentence where a minimum quantum for a particular type of sentence is prescribed, and the imposition of that type of sentence is not mandatory.

Question 37

Mohamad Fairuuz bin Saleh v PP [2015] 1 SLR 1145:

On Community Based Sentencing - Sentence fixed by law?

Answer 37

Intended by Parliament to be read narrowly in that it did not cover mandatory minimum or specified minimum sentences.

It refers to a mandatory sentence fixed both in type and quantum: Goh Boon Kwan.

Question 38

Specific Sentencing - Mentally Disordered:

PP v Sutherson, Sujay Solomon [2016] 1 SLR 632

Answer 38

[70]-[80]: Life imprisonment - Hodgson criteria satisfied, D’s circumstances indicate recurrence + tendency to violence:
1. Grave offence and, should it be repeated, the consequences to others would be specially injurious.

2. Expert evidence: condition required long-term meds and treatment without which a relapse would be highly likely.
3. On evidence, clear that deterioration in D’s mental state manifested itself in a propensity towards hostile and violent behaviour.

D’s condition cannot be sufficiently managed outside an institution where treatment and med may be supervised and enforced.

Thus, it could be concluded that, should the accused be released, he would remain a danger to the public at large for the foreseeable future.

Question 39

Specific Sentencing - Mentally Disordered:
Public Prosecutor v Aniza bte Essa [2009] 3 SLR(R) 327 - Hodgson Criteria?

[Under s 304(a) read with s 109, abetment of CHNM of 16yo to kill H. Suffered from moderate depression brought about by persistent spousal abuse. Sentenced to 9 years prison. PP’s appeal for life prison dismissed.]

Answer 39

[12] A guide to justify the sentence of life imprisonment for mentally unstable offenders who met those criteria (necessary for the protection of the public).

[11] In Hodgson, no mental disorder, but unstable personality by nature and number of offences committed.

1. Offence or offences are in themselves grave enough to require a very long sentence.
2. It appears from the nature of the offences or from the defendant’s history that he is a person of unstable character likely to commit such offences in the future.
3. If the offences are committed, the consequences to others may be specially injurious.

Question 40

Proportionality of punishments:

Andrew von Hirsch and Andrew Ashworth, Proportionate Sentencing: Exploring the Principles (OUP, 2005) at p 4

Answer 40

…the penal sanction should fairly reflect the degree of reprehensibleness (that is, the harmfulness and culpability) of the actor’s conduct. This comports with common-sense notions of justice, that how severely a person is punished should depend on the degree of blameworthiness of his conduct.

…the societal interest is expressed in the recognition that typical crimes (eg, those of force …) are wrongs, for which public censure through criminal sanction is due.