The Injustice of Rehabilitation

By Charis Wong, Jaryl Lim Zhi Wei, Mok Ho Fai and Valerie Lew Jia Min.

At the recent Criminal Law Conference 2014, Law Minister K. Shanmugam laid out four fundamental principles that anchor Singapore’s criminal justice system, key among them being that “offenders must be given the opportunity to be rehabilitated and reintegrated into society”. The swath of legislative changes in recent years, in particular, the wider range of sentencing options available today, places a greater emphasis on meaningful reform to the individual rather than being merely punitive in nature.

However, rehabilitative options still retain their retributive element to the extent that they restrict the offender’s liberty as a penance for his offence. Ideally, rehabilitative options should thus seek to balance the twin principles of proportionality (as encapsulated in the proverb, “let the punishment fit the crime”) and rehabilitation.

Nonetheless, a rehabilitative sentence may potentially result in a manifestly disproportionate sentence if, at the time of his appeal, the offender had already partially served an imprisonment term, but was subsequently ordered to serve a further rehabilitative sentence (e.g. reformative training). This scenario calls into question a balance between the principles of proportionality and rehabilitation. The courts are therefore faced with a quandary: in scenarios where these two principles are in conflict, which one should prevail?

 

An examination of Public Prosecutor v Saiful Rizam bin Assim and other appeals [1]

In Saiful Rizam, the three respondents pleaded guilty to multiple charges for theft of various items in the Case Property Store of Ang Mo Kio Police Division while they were serving their National Service with the Singapore Police Force. All of the respondents were between the ages of 19 and 20 at the time of conviction.

The trial judge held that in light of the various aggravating factors (including “wanton and repeated” stealing, and the fact that the respondents abused their position as officers in uniform), the main sentencing considerations should be that of retribution and deterrence rather than rehabilitation. He accordingly sentenced the respondents to seven months, 18 months and 14 months of imprisonment respectively. By the time of the appeal, the respondents had served between  four and five months of their imprisonment term.

On appeal, Chao Hick Tin JA rightly pointed out that:

  • The main sentencing consideration should have been rehabilitation instead [2] given their age, the fact that their crimes were “not particularly heinous” and the fact that they were free from antecedents; and
  • Unlike the trial judge’s opinion, reformative training would not have been “crushing” (despite the minimum period of 18 months) because the main object of the programme is to rehabilitate the young offenders.[3]

Chao JA therefore noted that if he were in the trial judge’s position, he would have sentenced the respondents to reformative training at the time of conviction.

However, the case turned on the fact that by the time of the appeal, the respondents had already partially served their sentence. Given this consideration, Chao JA reasoned that imposing reformative training at the time of the appeal would have been grossly disproportionate[4]. The learned judge noted that reformative training, like imprisonment, deprive offenders of their liberty because these programmes involve structured regimentation and incarceration. It thus follows that imposing reformative training on top of an imprisonment would amount to “double punishment” for the same offence, which Chao JA declined to do. 

We now proceed to look at the issues examined in the case.

 

The interaction between proportionality and rehabilitation 

It bears mention that compared to the punitive aspect of imprisonment, its reformative aspect is a relatively novel and modern concept. As Chao JA sombrely noted, the need for rehabilitation of offenders “has yet to receive much attention in our jurisprudence”.[5] Nonetheless, the overriding concern for the courts at the end of the day should, as rightly pointed out by Chao JA in Saiful Rizam [6], be doing justice rather than reforming the offender.

Ordinarily, when a court is to decide whether an imprisonment term should be substituted with reformative training, the fact that a sentencing tariff is shorter than the prescribed minimum rehabilitation period (e.g. a minimum of 18 months for reformative training) is an irrelevant consideration because the dominant sentencing objective in such a case is to reform the accused, and not to fit the crime[7]. Proportionality therefore only comes into play where, as in Saiful Rizam, the offender has partially served an imprisonment term pending an appeal. Proportionality then demands, in place of rehabilitation, that an offender should only receive a punishment that is in line with that which the offence he had committed deserves, and no more.[8]

 

Possible injustice in rehabilitative sentences

In such a scenario, the courts must be cognisant of the fact that reformative training is still a form of incarceration, and not a “soft option”. The young offender would be deprived of his or her freedom of movement for a substantial period – a minimum of 18 months and a maximum of 36 months.[9] The period is not shortened even if the motivation behind the incarceration is in the person’s well-being[10]. Indeed, reformative training is considered commensurate to imprisonment insofar as both deprive the offenders of their liberty[11]. Thus, to sentence an offender to a significant imprisonment term and then for reformative training would be disproportionate (or, as Chao JA rightly notes, a “double punishment”).

Whether such a sentence is disproportionate is nonetheless a matter of degree. The determinative factor is whether the offenders, as in Saiful Rizam, have served a significant portion of their imprisonment terms. This is again a matter for the courts to decide with due regard to the precise factual matrix of each case. More importantly, unlike the 1st situation where an offender has not served his sentence, a court here should now approach its sentencing discretion holistically with a pre-dominant view that the offender should receive a sentence befitting his crime rather than to reform him (i.e. that “proportionality is key”[12]).

This raises a further question: should the courts not backdate the reformative training to the time of sentencing? The case of Nur Azilah Bte Ithnin v Public Prosecutor[13] suggests otherwise. Backdating would, in effect, shorten the period of training and undermine the effectiveness of the programme. Therefore, in that case, the court ordered the reformative sentence to commence forthwith notwithstanding the fact that the appellant had spent some time in remand. On the face of it, this case seems to resemble the “double punishment” scenario which the court in Saiful Rizam wanted to avoid.

Imposing a “double punishment” prejudices against an offender – if not in form, than at least in substance. In effect, the offender would have been languishing under an undeserving, and often harsher, punishment pending the outcome of his appeal. The courts, as Saiful Rizam demonstrates, are generally unwilling to re-sentence an offender in such cases, especially if the new sentence unduly deprives him further of his liberty. Such disproportionate sentences should thus be assiduously avoided as with any other miscarriage of justice.

“…any unresolved tension between the principles of proportionality and rehabilitation trickles down into an improper sentence that an offender must serve. This is a disservice both to offenders and the criminal justice system as a whole. ”

 

Avoiding a “double punishment” scenario: A stay of execution

Chao JA offered several suggestions to prevent further occurrences of this “double punishment” scenario, chief of which included the granting of a stay of execution pending an appeal [herein referred to as “stay applications”] under s. 383(1) of the CPC[14]. This suggestion was echoed by Chief Justice Sundaresh Menon in the recent case of Public Prosecutor v Adith s/o Sarvotham [15]. In Adith, the Chief Justice held that the trial judge’s refusal to grant the Prosecution’s stay application prejudiced the Prosecution’s appeal to substitute probation with reformative training for the offender. The Chief Justice then took the opportunity to re-examine the principles that govern stay applications:

“the court hearing a stay application should primarily be concerned with ensuring that the Prosecution’s appeal is not prejudiced while weighing this against the comparative prejudice, if any, that is suffered by the convicted person in having to await the outcome of the appeal before commencing his sentence.” [16] (Emphasis added)

While we have spoken at length about the prejudice to the appeal, the authors are also of the view that the latter prejudice is not insignificant: A pending appeal judgment is not unlike a sword of Damocles dangling over the accused’s head. It is therefore up to the court to make the weighing decision in ensuring no side is unfairly prejudiced.

Hence, Menon CJ’s pronouncement is timely because a court, in granting or refusing a stay application, is now obliged to ensure that no side, the Prosecution or the accused, is unfairly prejudiced. Moving forward, a court now needs to provide reasons for denying a stay application (unlike the trial judge in Adith) in view of the serious injustice that can potentially result from such a denial. Under s 383(1) of the CPC, parties are also allowed to appeal against a trial judge’s decision to deny such an application.

To assist the courts, Menon CJ laid down the factors to be considered in granting a stay application:

  • the interests of a fair and just prosecution, including the interest of ensuring that the Prosecution’s appeal against the sentence is not prejudiced;
  • any comparative prejudice to the convicted person in having to await the outcome of the appeal before serving his sentence;
  • the nature and gravity of the offence;
  • the length of the term of imprisonment or probation in comparison with the length of time which it is likely to take for the appeal to be heard; and
  • whether any possible prejudice to the convicted person can be ameliorated through simple measures such as requesting that the appeal be heard on an urgent basis.[17]

A stay application, though largely procedural in nature, is an effective solution to protect the accused from substantial injustice for it ensures finality in an accused’s sentence before he serves it proper. While the Chief Justice suggests the abovementioned factors in the context of a Prosecution’s appeal, the authors suggest that the same factors should equally apply to an accused’s appeal against sentence.

 

Another possible solution: Community-based sentences

In line with the courts’ insistence on reformative training as a “hard” option, community-based sentencing[18] (introduced during the 2010 amendment to the CPC) may also be an appropriate alternative sentencing option that the courts can explore. These comparatively more lenient sentencing options avoid the propensity for “double punishment” whilst holistically reforming the offender through counselling, rehabilitation or community work in order to combat recidivism[19] in recent years[20].

However, the application of community-based sentencing is confined only to limited circumstances[21]. Egregious offenders are more likely to face the full spectrum of retribution, deterrence and protection of the public in the court’s sentencing considerations. The tension between safeguarding the public interests and reforming the offender thus continues to exist, and rightly so.

 

Conclusion

The cases of Saiful Rizam and Adith illustrate that any unresolved tension between the principles of proportionality and rehabilitation trickles down into an improper sentence that an offender must serve. This is a disservice both to offenders and the criminal justice system as a whole.

It is also no coincidence that these cases have come one after another within the span of 4 months. Their timings illustrate the realistic possibility of injustice arising from “double punishment”, and will only continue to rise with the proliferation of rehabilitative sentences. Menon CJ’s opportune clarification is therefore warmly welcomed in a time when the Singapore courts have to carefully toe the thin line between refitting the crime and reforming the criminal.

Charis Wong, Jaryl Lim Zhi Wei, Mok Ho Fai and Valerie Lew Jia Min are students at the National University of Singapore (Law), and members of the Innocence Project (Singapore).


[1] [2014] SGHC 12 (“Saiful Rizam”).

[2] Ibid at [17] to [18].

[3] Ibid at [24] to [26].

[4] Ibid at [43].

[5] Ibid at [31].

[6] Ibid at [41]

[7] Ibid at [24] – [25].

[8] Ibid at [29].

[9] Criminal Procedure Code (Reformative Training) Regulations 2010 (S 802/2010 Sing), reg 3.

[10] Sentencing Criminals, Molly Cheang [1974] 16 MLR 204.

[11] Supra note 1 at [43].

[12] Ibid at [43].

[13] [2010] SGHC 210.

[14] Supra note 1 at [44].

[15] [2014] SGHC 103 (“Adith”)

[16] Ibid at [31]

[17] Ibid at [32]

[18] These sentences include: (i) Mandatory Treatment Order (s 339 of the CPC); (ii) Day Reporting Order (s 341 of the CPC); (iii) Community Work Order (s 344 of the CPC); and (iv) Community Service Order (s 346 of the CPC).

[19] See Parliamentary Debates Singapore: Official Report, vol 87 (18 May 2010), column 407.

[20] See generally Bala Reddy, “Community-Based Alternatives in Sentencing” (2009) at the UNAFEI 141st International Senior Seminar, Visiting Experts’ Papers.

[21] In particular, s 377 of the CPC for a list of provisos before a court can impose community-based sentences.

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