EMPIRICAL STUDY ON APPELLATE INTERVENTION IN MANIFESTLY EXCESSIVE OR INADEQUATE SENTENCES IN SINGAPORE

• Author: LIM Wei Yang1 LLB (Hons) (National University of Singapore); Advocate and Solicitor (Singapore).
• Citation: (2020) 32 SAcLJ 684
• Date: 01 December 2020
• Published date: 01 December 2020

Once upon a time there was a judge named Goldilocks. She was scheduled to hear magistrate's appeals in the afternoon. On her desk were the briefs for three different cases. She read the first file. “This sentence is manifestly excessive!” she exclaimed. Next, she read the second file. “This sentence is manifestly inadequate!” she lamented. At last, after reading the last file, she leaned back in her chair and smiled. “Ah!” she exclaimed, “this sentence is neither manifestly excessive nor inadequate and gives sufficient weight to both the principles of deterrence and rehabilitation and is proportionate to the gravity of the offence, having regard also to the personal circumstances of the offender”. In reality, unlike for Judge Goldilocks, it may not be as clear whether a sentence is manifestly excessive or inadequate, because the sentence might simply be on the high side (or low side) without warranting appellate intervention. This article surveys all reported appeals against sentence from 1990 to 2017 to provide an overview of when an appellate court will intervene in an appeal against sentence on the grounds of manifest excessiveness or inadequacy.

I. Introduction

1 Much has been said about achieving fairness and consistency in sentencing,2 in which appellate guidance and intervention is an indispensable ingredient. The appellate courts provide guidance and clarity in sentencing law and practice, and resolve incongruent,

contradictory or uneven sentencing precedents and practices.3 However, relatively little attention has been given to the practice of the appellate courts themselves and whether they themselves have been consistent in their guidance and intervention.

2 It has been observed, albeit anecdotally, that most appeals against sentence are lodged on the grounds of manifest excessiveness or inadequacy,4 a ground of appeal also found in several other Commonwealth jurisdictions.5 Despite that, surprisingly little has been said about when sentences are considered manifestly excessive or inadequate, and it is this dearth of guidance and discussion in Singapore that motivates this study. An oft-quoted exposition by ex-Chief Justice Yong Pung How reads:6

When a sentence is said to be manifestly inadequate, or conversely, manifestly excessive, it means that the sentence is unjustly lenient or severe,… and requires substantial alterations rather than minute corrections to remedy the injustice … [emphasis added in italics and in bold italics]

From this passage there seem to be two requirements before appellate intervention on the ground of manifest excessiveness or inadequacy is justified: First, the sentence must be unjustly lenient or severe. Second, substantial alterations must be required to remedy the injustice. While the first requirement is uncontroversial, the second is intriguing because it seems to import a quantitative threshold that must be met. So far, no exposition has been given by the courts on when an alteration is considered “substantial”, and no major empirical studies have been done to examine the pattern of appellate intervention. This article aims to fill this gap in knowledge by determining empirically and quantitatively whether a threshold exists for when alterations are considered “substantial” enough to warrant appellate intervention.

3 The results of this study do not offer strong support for the existence of a quantitative threshold for appellate intervention. A few cases and one commentator suggest that there may be a quantitative threshold of an alteration of at least 25%, but the data shows that there

is a small but significant proportion of cases in which corrections of less than 25% were made instead. This article considered several explanations for this contradiction, and found that it was unlikely to be due to (a) courts using the term “manifestly excessive or inadequate” loosely and conflating it with other grounds of appeal; (b) differing time periods; or (c) differences in original sentence lengths (for imprisonment terms) or amounts (for fines). Instead, this observation is more likely due to unobservable factors, such as appellate courts not considering the positions taken by other appellate judges, or perhaps not even relying on a quantitative threshold. Part II7 of this article provides a brief overview of the law and practice regarding the appellate review of sentences, Part III8 sets out the research methodology, Part IV9 analyses the data gathered, Part V10 offers several suggestions for improving the approach towards manifestly excessive or inadequate sentences, and Part VI11 concludes.

II. Appellate review of sentences

A. Grounds of appeal

4 The power of an appellate court to modify sentences is found in s 394 of the Criminal Procedure Code12 (“CPC”), which provides that an appellate court may intervene if the sentence meted out below was (a) wrong in law; or (b) manifestly excessive or inadequate. Section 394 is reproduced here for ease of reference:

Any … sentence … of a trial court may be reversed or set aside only where the appellate court is satisfied that it was wrong in law or against the weight of the evidence or, in the case of a sentence, manifestly excessive or manifestly inadequate in all the circumstances of the case.

The Court of Appeal has also noted that in addition to s 394 of the CPC, appellate intervention is also warranted if:13

(a) The sentencing judge had made the wrong decision as to the proper factual matrix for the sentence.

(b) The sentencing judge had erred in appreciating the material before him or her.

(c) The sentence was wrong in principle.

There is thus a total of five possible disjunctive14 grounds of appeal against sentence. Although s 394 of the CPC provides that a sentence may be set aside if it is “against the weight of the evidence”, such language has never been used by the courts in their written judgment in allowing an appeal against sentence. As such, this clause is not analysed as a ground of appeal, although how it might be interpreted and employed is further discussed in Part V below.15

(1) Wrong in law

5 A sentence may be considered wrong in law if the judge proceeds on an erroneous view of the underlying policy concern of the offence or punishment,16 or fails to consider the wider public interest.17 An error of law is also committed if the law is misapplied, such as where certain conditions for imposing the initial sentence were not fulfilled,18 or where a sentencing principle was wrongly applied.19

(2) Proper factual matrix

6 A judge will have committed an error with regard to the proper factual matrix of a sentencing if he fails to consider relevant facts that may affect the sentence imposed,20 errs in making findings of fact not supported by the evidence,21 draws conclusions not supported by the

facts,22 or misanalyses the facts.23 A sentencing judge may also err in appreciating the proper factual matrix through no fault of his or hers, but because the facts were not made known nor clarified before him or her.24

(3) Appreciating material

7 A judge will have failed to appreciate the material before him or her if he or she fails properly to appreciate the statement of facts,25 exaggerates the extent of harm caused,26 or gives insufficient weight to certain mitigating factors and/or overemphasises aggravating factors.27 In Yap Ah Lai v Public Prosecutor,28 the sentencing judge was found to have thus erred when he reproduced the same crucial passages of reasoning in two seemingly similar cases.29

(4) Wrong in principle

8 A sentence has been regarded as being wrong in principle where the sentencing judge imposes the wrong type of sentence,30 fails to consider certain sentencing principles,31 or imposes a sentence out of line with precedents.32 This ground also includes situations where insufficient weight was given to the aggravating circumstances of the case33 and/or where undue weight was given to mitigating factors,34 or if the judge

failed to appreciate that a certain factor is an important sentencing consideration.35

(5) Manifest excessiveness or inadequacy

9 A manifestly excessive or inadequate sentence is one that is unjustly lenient or severe and requires substantial alterations to remedy the injustice.36 Sentences have also been said to be manifestly excessive or inadequate if they fail to accommodate mitigating or extenuating circumstances or factors,37 if they are plainly out of line with an established benchmark,38 or if they reflect only one sentencing principle (for example, deterrence) when they should reflect more (for example, both deterrence and retribution).39

B. Distinguishing manifestly excessive or inadequate sentences

10 However, the grounds of appellate intervention do not all operate in the same way. Sentences that are manifestly excessive or inadequate must be clearly distinguished from the other four disjunctive grounds mentioned above for two reasons.

11 Firstly, manifest excessiveness or inadequacy is conceptually different from the errors that form the basis of the other four grounds of appeal (collectively “sentencing errors”). Alleging that a sentencing error has been committed is to impugn the process by which the sentencing judge arrived at the sentence.40 An error at any step in the process renders the result objectionable, regardless of what the final sentence is. In other words, the ends do not justify the means. On the other hand, in assessing whether a sentence is manifestly excessive or inadequate, the focus is on the outcome of the sentencing process. In such situations, the sentencing judge may have applied the correct principles and considered all the

relevant factors, but nevertheless imposed a sentence that is too low or high in the eyes of the appellate court.

12 Secondly, the extent of intervention required in manifestly excessive or inadequate sentences and sentencing errors differ. When a sentence is said to be...