Edwin s/o Suse Nathen v Public Prosecutor

• Jurisdiction: Singapore
• Judge: Sundaresh Menon CJ
• Judgment Date: 30 September 2013
• Neutral Citation: [2013] SGHC 194
• Court: High Court (Singapore)
• Docket Number: Magistrate’s Appeal No 116 of 2013
• Year: 2013
• Published date: 22 October 2013
• Hearing Date: 30 September 2013,29 August 2013
• Plaintiff Counsel: Nirmal Singh (Raj Kumar & Rama)
• Defendant Counsel: DPPs April Phang and Marshall Lim Yu Hui (Attorney-General's Chambers)
• Subject Matter: Criminal Procedure and Sentencing
• Citation: [2013] SGHC 194

Sundaresh Menon CJ:

This is an appeal brought by Mr Edwin s/o Suse Nathen (“the appellant”) against the decision of 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 addressing the question of what the appropriate sentence in this case should be having regard to the decisions over the last five years.

Having received and considered the further written submissions that were tendered, I am satisfied that in all the circumstances, the sentence below was manifestly excessive. I therefore allow the appeal to the extent that I reduce the period of disqualification to 21 months and the fine to $2,500.

Submissions have been made relating to the appropriate benchmark sentence for an offence under s 67(1)(b) and the relevant factors to be taken into account for sentencing. I address these in the detailed reasons which follow.

Background facts

On 17 November 2012 at about 2.10am, the appellant was driving his motor car along the Pan Island Expressway when he was stopped by traffic police officers for a spot check. The police officer noticed that the appellant smelled strongly of alcohol and administered a breathalyzer test. The appellant failed the test and was placed under arrest. The appellant was then escorted to the Traffic Police Department and a Breath Evidential Analyser test was conducted at about 3.46am. The test results indicated that the proportion of alcohol in the appellant’s breath was 64 microgrammes of alcohol for every 100 millilitres of breath. This was 1.82 times the prescribed legal limit of 35 microgrammes of alcohol for every 100 millilitres of breath. The appellant explained that during and after dinner with his friends he had drunk a few glasses of beer before driving home. He pleaded guilty to an offence under s 67(1)(b) of the RTA.

Section 67 provides as follows:

67.—(1) Any person who, when driving or attempting to drive a motor vehicle on a road or other public place — (a) is unfit to drive in that he is under the influence of drink or of a drug or an intoxicating substance to such an extent as to be incapable of having proper control of such vehicle; or (b) has so much alcohol in his body that the proportion of it in his breath or blood exceeds the prescribed limit,

shall be guilty of an offence and shall be liable on conviction to a fine of not less than $1,000 and not more than $5,000 or to imprisonment for a term not exceeding 6 months and, in the case of a second or subsequent conviction, to a fine of not less than $3,000 and not more than $10,000 and to imprisonment for a term not exceeding 12 months.

(2) A person convicted of an offence under this section shall, unless the court for special reasons thinks fit to order otherwise and without prejudice to the power of the court to order a longer period of disqualification, be disqualified from holding or obtaining a driving licence for a period of not less than 12 months from the date of his conviction or, where he is sentenced to imprisonment, from the date of his release from prison.

…

It will be apparent that by virtue of s 67(2), a person convicted of an offence under s 67 shall be disqualified from holding or obtaining a driving licence for a period of at least 12 months unless the court for “special reasons” thinks fit to order otherwise. The District Judge held that there were no “special reasons” to warrant her exercising her discretion not to impose a period of disqualification (at [14] of the GD). Nor has the appellant contended otherwise before me.

In determining the appropriate sentence, the District Judge gave due weight to the fact that the proportion of alcohol in the appellant’s breath was about 1.82 times the prescribed limit. She was therefore of the view that the gravity of the offence did not fall at the lowest end of the spectrum (at [16] of the GD). The District Judge also applied the High Court authorities of Ong Beng Soon v PP [1992] 1 SLR(R) 453 (“Ong Beng Soon”) and Silvalingam Sinnasamy v PP [2001] 2 SLR(R) 384 which establish that a harsher sentence should ordinarily be imposed where the alcohol level is higher (at [17] of the GD). The District Judge emphasised that the appellant had made the deliberate decision to drive home despite having consumed alcoholic drinks, and alluded to the need for a deterrent sentence (at [18] of the GD). A minimum fine and a minimum period of disqualification were therefore not thought to be appropriate under the circumstances. A fine of $3,000 and a disqualification order for a period of two years was accordingly imposed (at [19] of the GD).

In the further submissions filed on behalf of the appellant, Mr Singh submitted that having regard to recent precedents and considering all the circumstances of this case, the appropriate sentence should be a fine of $3,000 and a disqualification order for a period of one year.

As against this, the Prosecution submitted that the District Judge’s exercise of her discretion was in accordance with the established sentencing principles for an offence under s 67(1)(b) of the RTA, and that the sentence imposed on the appellant was consistent with the sentences imposed in similar cases. There was therefore no basis to find that the sentence imposed on the appellant was manifestly excessively.

The appropriate benchmark sentence for a s 67(1)(b) offence

There are two different offences in s 67. Under s 67(1)(a), the offence requires proof that a person is in fact unfit to drive by reason of being under the influence of intoxicating drink or drug. This offence requires proof of the effect that the consumption of the intoxicant has on the accused person’s ability to have proper control of the vehicle and in particular proof that, as a consequence of such consumption and intoxication, he is incapable of having proper control over his vehicle. On the other hand, an offence under s 67(1)(b) is established by the single fact that the proportion of alcohol in the offender’s body exceeds the prescribed limit which is set out in s 72(1) of the RTA.

The actual level of alcohol tolerance may vary as between particular individuals; and alcohol may affect the mental faculties and awareness of those intoxicated by it in different ways. Perhaps more importantly, it is often the case that those who consume alcohol or other intoxicating substances find their judgment so affected that they underestimate the adverse effects of the intoxicants consumed on their ability to control the vehicle properly, and this can have the most tragic of consequences. This is the context in which an offence under s 67(1)(b) is to be considered. To put it simply, a person who has been drinking cannot claim ignorance of the amount of alcohol that he has consumed. And any attempt to rely on his own judgment that his ability to drive has not been impaired will be futile.

A first offender under s 67 is 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 unless, as noted above, the court is satisfied that there are special reasons to order otherwise under s 67(2). In relation to the first component of punishment, a fine is the norm for a first offender, at least in relation to an offence under s 67(1)(b), unless there are egregious or aggravating circumstances that warrant a custodial sentence (see Sentencing Practice in the Subordinate Courts (LexisNexis, 2nd Ed, 2003) at p 938–939).

It should be noted, however, that the two components of the overall sentence generally are not to be regarded as mutually compensatory. Thus, an increase in the quantum of the fine imposed or even the imposition of a custodial sentence should not be taken to mandate the imposition of a reduced period of disqualification than would otherwise have been ordered. A disqualification order combines three sentencing objectives: punishment, protection of the public and deterrence (see Peter Wallis gen ed, Wilkinson’s Road Traffic Offences (Sweet & Maxwell, 20th ed, 2001) at para 4.412; Kow Keng Siong, Sentencing Principles in Singapore (Academy Publishing, 2009) at paras 32.150 – 32.159). Due to the limited range of fines from $1,000 to $5,000 for a first time offender, the mandatory disqualification order is in fact the principal punitive element of an offence under s 67(1), and the impact of a disqualification order is likely to be felt much more acutely than any marginal increase in the quantum of the fine.

Where an offence reflects a blatant disregard for the safety of other road users and a lack of personal responsibility, there is a public interest in taking such a driver off the roads for a substantial period...