Explainer: Who decides what punishments are available and appropriate sentences for convicted persons?

Crime and punishment have been much talked about recently.

First, President Halimah Yacob, in rare intervention, suggested that the law exempting men over 50 years old from caning should be reviewed. 

This was in response to a series of recent cases involving sexual abuse of child victims. 

This sparked a spirited debate among both the online community and various non-governmental organisations, with some agreeing and some disagreeing.

Second, two cases reported in the news on Dec 13 were juxtaposed, with some expressing confusion at the results. 

In the case of Mark Teo Sin Yan, who had threatened a taxi driver with a knife and also separately allowed his bank account to be used to transact proceeds of crime, the offender was sentenced to three months and 22 weeks’ jail and a S$500 fine. 

In the case of Lim Soon Huat, the offender was sentenced to 24 months’ jail despite having shoplifted only S$1,723 worth of Panadol. This prompted some to question how the sentences were arrived at.

WHAT IS SENTENCING?

Criminal law works in two parts.

First, the question is whether someone has committed a crime, also known as an offence. Offences are defined in Acts of Parliament, also known as statutes. 

This is known as “conviction”. The accused person must be proved to have committed the offence beyond reasonable doubt before a court. 

This can be done either by the accused person pleading guilty, meaning he admits to it, or through a trial, if he does not admit. 

A person who has admitted or been proved guilty is convicted of the offence.

Second, once an offender has been convicted, the issue becomes what punishment he should receive.

This is called “sentencing”. There is a special body of criminal law devoted to it, to ensure that an offender receives punishment that is both appropriate to his individual circumstances but also broadly consistent with punishments received by other offenders in similar cases.

WHO DECIDES WHAT PUNISHMENTS ARE AVAILABLE?

Within the sentencing process, there are again two distinct stages.

First, the range of possible punishments for an offence needs to be defined. 

This is a function that is solely reserved for Parliament. When Parliament creates an offence, it also usually specifies the range of punishments that go with it.

For example, rape is punishable under section 375 of the Penal Code 1871 with imprisonment of up to 20 years, fine, or caning. 

Parliament may also define aggravating factors, things that make the commission of the offence worse. 

In the case of rape, committing an offence against a young victim under 14 is considered aggravating. 

Parliament has mandated that there be a minimum punishment of eight years, up to 20 years, and also a minimum of 12 strokes of the cane.

However, Parliament can also define mitigating factors, things that warrant less punishment. 

In the cases referred to by the President, Parliament created a rule that men over 50 years old, women, and men sentenced to death would be spared caning – Section 325 of the Criminal Procedure Code 2010.

Parliament may also create mandatory sentences, such that if the accused is convicted, there is no choice of punishments. 

For example, the convicted drug trafficker Nagaenthran Dharmalingam received the mandatory death penalty.

Making law is the sole province of Parliament. No one else, not even the President, Chief Justice or Prime Minister, can change the law acting by themselves.

HOW IS THE PUNISHMENT FOR A PARTICULAR OFFENDER DECIDED?

Second, once the range of possible punishments has been defined, the question is what specific punishment a specific offender should receive.

In order to ensure fairness to the offender, the decision lies solely with a judge, who is impartial and not controlled by any other party. 

The judge is assisted by the prosecution and the defence lawyers in coming to a conclusion, but is not obliged to follow their suggestions.

There are four main principles of sentencing law: 

• Retribution – to ensure that the offender is punished appropriately for what he has done
• Deterrence – to deter the offender and other potential offenders from committing future offences
• Protection – to protect the public from the offender, often by way of incapacitation
• Rehabilitation – to reform the offender into a law-abiding member of society

A judge has to decide which principles are more important in any given case. In the case of a repeat offender like Lim Soon Huat, retribution and deterrence may be considered more important, so even a relatively minor crime might be punished more harshly. 

In the case of young offenders, like Terence Siow Kai Yuan, a National University of Singapore undergraduate who was convicted of molestation, rehabilitation might be more important. 

Rehabilitation does not necessarily mean that the offender will not be imprisoned. It simply means that the court will look at what is the best option for ensuring that the offender is punished but also can be successfully reintegrated into society later. 

A judge must also consider the unique aggravating and mitigating factors present in each case.

Offence-specific factors are objective facts that make the offence better or worse. For example, in Mark Teo Sin Yan’s case, the large amount of money that passed through his bank account is an aggravating factor. 

Offender-specific factors are things about the offender that make the offence better or worse. For example, in the case of Lim Soon Huat, his long criminal record makes his recent offence much worse, since it shows that he has no respect for the law and is not sorry for his previous conduct.

Finally, a judge must weigh up all these considerations and arrive at an exact sentence. Not all offenders get the maximum possible punishment – only the worst offenders. 

Most offenders are sentenced somewhere within the range, according to the severity of their conduct. The average sentence is sometimes known as the tariff.

The judge must also ensure that the total sentence is proportionate to the overall seriousness of the offence – the sentence must not be unfairly crushing to the offender. 

After all, the purpose of punishment is not mere revenge.

ABOUT THE AUTHOR:

Alexander Woon is a lecturer at Singapore University of Social Sciences’ School of Law and practises law as an of counsel at RHTLaw Asia. He was formerly a deputy public prosecutor at the Attorney-General's Chambers.