Edwin s/o Suse Nathen v PP

• Jurisdiction: Singapore
• Judgment Date: 30 September 2013
• Date: 30 September 2013
• Docket Number: Magistrate's Appeal No 116 of 2013
• Court: High Court (Singapore)

Edwin s/o Suse Nathen

Plaintiff

and

Public Prosecutor

Defendant

[2013] SGHC 194

Sundaresh Menon CJ

Magistrate's Appeal No 116 of 2013

High Court

Criminal Procedure and Sentencing—Sentencing—Benchmark sentences—Appeal against sentence imposed for driving while under influence of drink under s 67 (1) (b) Road Traffic Act (Cap 276, 2004 Rev Ed) —Appropriate sentencing framework—Section 67 (1) (b) Road Traffic Act (Cap 276, 2004 Rev Ed)

The appellant was driving along the Pan Island Expressway when he was stopped for a spot check. He was placed under arrest after failing a breathalyser test, and a breath evidential analyser test indicated that the proportion of alcohol in his breath was 64µg of alcohol for every 100 ml of breath.

The appellant pleaded guilty to one charge of driving while under the influence of drink under s 67 (1) (b) of the Road Traffic Act (Cap 276, 2004 Rev Ed) (‘the RTA’). The District Judge found that the proportion of alcohol in the appellant's breath was 1.82 times the prescribed limit and that the gravity of the offence did not fall at the lowest end of the spectrum. She therefore imposed a fine of $3,000 and disqualification from holding or obtaining a driving license for all classes of vehicles for two years.

Held, allowing the appeal:

(1) A first offender under s 67 was subject to two separate components of punishment - a fine or imprisonment under s 67 (1) and mandatory disqualification from holding or obtaining a driving license for a period of at least 12 months under s 67 (2), unless the court was satisfied that there were special reasons to order otherwise. The two components generally were not to be regarded as mutually compensatory. A disqualification order combined three sentencing objectives - punishment, protection of the public and deterrence - and the period of disqualification should therefore increase in tandem with the severity of the offence: at [12] to [14] .

(2) There was a wide spectrum of facts that could implicate a charge under s 67 (1) (b), and in determining the sentence, it was incumbent on the court to consider the particular facts by applying a systematic framework, first considering the extent to which the concentration of alcohol in the offender's blood or breath exceeded the prescribed limit, and then examining whether there were aggravating or mitigating factors: at [16] .

(3) Where the level of alcohol was close to the prescribed limit (35µg to 54µg per 100 ml of breath), a fine of $1,000 to $2,000 and a disqualification order of between 12 to 18 months was warranted. When the level of alcohol was moderate to high (55µg to 69µg per 100 ml of breath), it was appropriate to reflect the relative severity of the offence by the imposition of a higher fine of $2,000 to $3,000 and a disqualification order ranging from 18 to 24 months. Where the level of alcohol was more than double the prescribed limit (70µg to 89µg per 100 ml of breath), fines of $3,000 to $4,000 and disqualification orders of between two to three years had generally been imposed. Where the level of alcohol very substantially exceeded the limit, such that it was well beyond twice the prescribed limit (? 90µg per 100 ml of breath), the amount of fine and period of disqualification ought to reflect this; the starting point for fines should be more than $4,000 and the period of disqualification should range from three to four years, or even longer in appropriate cases. These benchmarks were neutral starting points based on the relative seriousness of the offence considering only the level of alcohol in the offender's blood or breath, and were not rigid or impermeable categories: at [17] to [20] and [22] .

(4) The absence of aggravating factors was not in itself a mitigating factor that would justify a sentence below the benchmark. The presence or absence of a particular factor might be seen as aggravating, neutral or mitigating, and there was no basis for assuming that the absence of an aggravating factor should be regarded as mitigating. The absence of an aggravating factor only made a sentence less serious in relative terms, but where a benchmark sentence was adopted as a yardstick, an offence could not be regarded as less serious in absolute terms because of the absence of an aggravating circumstance: at [24] and [26] .

(5) An offence under s 67 (1) (b) might be aggravated by reason of the actual or potential danger posed by the offender's conduct in committing the offence. This might be manifested by the manner of driving or by circumstances that increased the danger to road users. Where the commission of the offence had resulted in actual harm, such as a collision or an accident that caused property damage, injury or death, this was also an aggravating factor that should be reflected in both the quantum of the fine or length of imprisonment, as well as the period of disqualification. Belligerent or violent conduct was another aggravating factor that could justify an increased fine or even imprisonment in exceptional circumstances, but this would not ordinarily alter the length of a disqualification order. Finally, the offender's reason or motivation for driving could either be an aggravating or mitigating factor that impacted his level of culpability: at [27] to [29] , [32] and [33] .

(6) There were no relevant aggravating or mitigating factors in the present appeal, and based on the sentencing framework and benchmarks, a disqualification period of 21 months and a fine of $2,500 was appropriate: at [35] .

[Observation: An offence under s 70 (4) (a) of the RTA of failing to provide a breath specimen to a police officer was punishable in the same way as an offence under s 67; however, an offender under s 70 (4) (a) might be punished not as a borderline or moderate offender under s 67 (1) (b), but as a more serious offender. Section 70 (4) (a) was directed at two interests: to punish and deter those who placed others at risk by driving while intoxicated, and to punish and deter those who sought to undermine the criminal justice system by trying to avoid giving a sample. Such offenders should not be better off than one who had co-operated and faced a charge under s 67 (1) (b) as a result: at [39] .]

Angliss Singapore Pte Ltd v PP [2006] 4 SLR (R) 653; [2006] 4 SLR 653 (refd)

Cheong Wai Keong v PP [2005] 3 SLR (R) 570; [2005] 3 SLR 570 (refd)

Chris-Lyn Ng v PP Magistrate's Appeal No 213 of 2010 (refd)

Jason Tan v PP Magistrate's Appeal No 269 of 2008 (refd)

Kim Seung Shik v PP Magistrate's Appeal No 277 of 2009 (refd)

Lim Kay Han Irene v PP [2010] 3 SLR 240 (refd)

Mohamad Faizal bin Mohd Alias v PP Magistrate's Appeal No 197 of 2010 (refd)

Ong Beng Soon v PP [1992] 1 SLR (R) 453; [1992] 1 SLR 731 (refd)

PP v AOM [2011] 2 SLR 1057 (refd)

PP v Azhar bin Abdullah [2011] SGDC 358 (refd)

PP v Chan Soo Sen (refd)

PP v Chew Chin Kiat District Arrest Case No 020009 of 2011 (refd)

PP v Chow Yee Sze [2011] 1 SLR 481 (refd)

PP v Colin Chua Beng Yam District Arrest Case No 047291 of 2012 (refd)

PP v Dilip Kumar s/o Nirmal Kumar District Arrest Case No 045102 of 2012 (refd)

PP v Ho Shee Ying [2008] SGDC 79 (refd)

PP v Iskandar Mirzah bin Aripin [2012] SGDC 303 (refd)

PP v Kunath Prasanth Menon [2013] SGDC 125 (refd)

PP v Lee Meng Soon [2007] 4 SLR (R) 240; [2007] 4 SLR 240 (refd)

PP v Lim Chuan Lam [2011] SGDC 191 (refd)

PP v Ng Choon Hoe Kelly [2008] SGDC 173 (refd)

PP v Ng Fook Liat [2007] SGDC 20 (refd)

PP v Ng Poh Tiong [2006] SGDC 233 (refd)

PP v Ngiam Hock Thiam [2010] SGDC 415 (not folld)

PP v Selvarajah s/o Murugaya [2007] SGDC 283 (refd)

PP v Sim Yew Jen Jonathan [2008] SGDC 272 (refd)

PP v Sivaji Rajah s/o Mariappan [2012] SGDC 93 (refd)

PP v Tan Lee Pheng [2010] SGDC 121 (refd)

PP v Tan Peng Yew Melvin [2005] SGDC 24 (refd)

PP v Tham Chee Mun District Arrest Case No 052605 of 2010 (refd)

PP v Vasudevan s/o Thambyrajah [2010] SGDC 379 (refd)

PP v Woo Keen Meng [2009] SGDC 168 (refd)

Silvalingam Sinnasamy v PP [2001] 2 SLR (R) 384; [2001] 3 SLR 157 (refd)

Sivakumar s/o Rajoo v PP [2002] 1 SLR (R) 265; [2002] 2 SLR 73 (refd)

Thrumoorthy s/o Ganapathi Pillai v PP [2010] 4 SLR 788 (refd)

V Mahetheran v PP Magistrate's Appeal No 234 of 2009 (refd)

Road Traffic Act (Cap 276, 2004 Rev Ed) s 67 (1) (b) (consd) ;ss 64 (1) , 65, 67, 67 (1) , 67 (1) (a) , 67 (2) , 70 (4) (a) , 72 (1)

Nirmal Singh (Raj Kumar & Rama) for the appellant

April Phang and Marshall Lim Yu Hui (Attorney-General's Chambers) for therespondent.

Sundaresh Menon CJ

1 This is an appeal brought by Mr Edwin s/o Suse Nathen (‘the appellant’) against the decision of the district judge (‘the District Judge’) in PP v Edwin s/o Suse Nathen [2013] SGDC 174 (‘the GD’). The appellant pleaded guilty to an offence of driving while under the influence of drink under s 67 (1) (b) of the Road Traffic Act (Cap 276, 2004 Rev Ed) (‘the RTA’). The District Judge sentenced him to a fine of $3,000, in default 15 days' imprisonment, and disqualified him from holding or obtaining a driving license for all classes of vehicles for a period of two years. In the course of arguments, counsel for the appellant, Mr Nirmal Singh (‘Mr Singh’) drew my attention to a number of cases which involved parties who had committed the same offence as the appellant, but in circumstances where for one reason or another the offender appeared to be deserving of a more serious punishment than that which had been imposed on the appellant by the court below. Yet in those cases, the punishment that was in fact imposed appeared to be similar to that imposed on the appellant. I noted that a number of those cases were somewhat older and related to a time when the scourge of driving while under the influence of alcohol was perhaps less frequently encountered and so had been less vigorously condemned than in more recent times. I therefore invited further submissions...