JUDICIAL BENCHMARKING IN SINGAPORE
| Author | Daniel Chia Jin Chong |
| Citation | (2000) 12 SAcLJ 194 |
| Published date | 01 December 2000 |
| Date | 01 December 2000 |
Judicial benchmarking of sentences has always been the subject of considerable debate. In Part II of his article “Judical Discretion & Mandatory Sentences”, Loo Ngan Chor writes in no uncertain terms that “mandatory sentences and judicial benchmarking of sentences are wrong.” He opines that judicial benchmarking “is done simply for the sake of sentencing consistency.” This article examines the practice of judicial benchmarking of sentences and considers if Loo’s criticism of a practice which has been well-established by the Supreme Court of Singapore is warranted.
1. The judicial benchmarking of sentences to be imposed on offenders has always been the subject of considerable debate. In Part II of his article “Judical Discretion & Mandatory Sentences”,1 Loo Ngan Chor writes in no uncertain terms that “mandatory sentences and judicial benchmarking of sentences are wrong.” In particular, Loo opines that judicial benchmarking “is done simply for the sake of sentencing consistency.” The topic of mandatory sentences has been discussed by many at length and is outside the ambit of this article.2 Instead, this article examines the practice of judicial benchmarking of sentences and considers if Loo’s criticism of a practice which has been well-established by the Supreme Court of Singapore is warranted.
2. In his article,3 Loo writes that along with the Legislature’s adoption of mandatory minimum sentences in Singapore, there is “the trend towards the judicial benchmarking of the sentences in respect of certain offences such as corruption and rape.” He cites Chia Kim Heng Frederick v PP4 as the case setting down the benchmark sentence for rape as 10 years’
imprisonment and not less than 6 strokes of the cane. Loo goes on to provide that a contrasting position has been adopted in respect of culpable homicide not amounting to murder. He cites PP v Tan Kei Loon Allan,5
wherein the Court of Appeal declined to set a benchmark sentence for such offences and stated that such cases should be determined on the facts of the particular case.
3. Loo writes that the reasoning of the Court of Appeal in PP v Tan Kei Loon Allan reveals why judicial benchmarking is wrong. He writes that mandatory sentences and judicial benchmarking curtail sentencing discretion. Loo draws a distinction between punishment of an offender for an offence he has committed, and punishment of the offence, and says that with mandatory sentences and judicial benchmarking, the “focus has shifted” to the latter. He goes as far as to say that judicial benchmarking is done “simply for the sake of sentencing consistency.”
4. Loo’s objection to judicial benchmarking stems from his reasoning that “it would be unjust that an offender should be punished for his offence per se” just because “it is thought that to do so would notionally serve the members of the community in which he lives.” Further, he writes that the same argument “deployed by the Court of Appeal against benchmarking in culpable homicide cases applies with equal force to all benchmarking.” This is because “facts differ so much from case to case that benchmarking [is] apt to produce injustice in many instances generalised based on categorisation rather than on its facts.” Finally, Loo writes that judicial benchmarking of sentences, along with mandatory sentences, presumptions and the trend in legislation towards the crime control model6 heighten the risks of miscarriages of justice, and suggests that these are part of a “whole matrix of powers designed to secure quick convictions.”
5. This article first examines the practice of judicial benchmarking in Singapore. It will then look closely at the concept of benchmarking, the practice in other jurisdictions, and the advantages and disadvantages of such a practice. It concludes that there is absolutely no merit in the assertion that benchmarking curtails judicial sentencing discretion and makes recommendations on how the sentencing process can be improved.
6. In Singapore, as in the major common law jurisdictions, there are really 2 main sources that offer guidance on sentencing: legislation, laying down the maximum and minimum sentences; and judicial decisions by way of horizontal and vertical stare decisis.7 There are 2 main ways of ensuring sentencing parity:8 appellate review and the adoption of sentencing benchmarks.9 This article examines the latter.
7. Besides the benchmark sentence for rape which has already been discussed above, the High Court and Court of Appeal of Singapore have set down benchmark sentences for a variety of other offences.
8. In cases of outrage of modesty where the private parts of the victim are intruded, the Honourable Chief Justice, sitting in a Magistrate’s Appeal, held in Chandresh Patel v PP10 that the benchmark sentence is nine months’ imprisonment and caning. In cases under the “negligent” limb of section 304A of the Penal Code (Cap 224), the benchmark sentence is a fine of $6,000 and 5 years’ disqualification.11 In Ooi Joo Keong v PP,12 the Honourable Chief Justice held that the appropriate tariff for a first time user of the drug Ecstasy is 12 to 18 months’ imprisonment. For offences under section 465 of the Penal Code, the usual sentencing tariff where amounts in excess of $500,000 were obtained by unlawful means is a sentence of at least five years’ imprisonment.13 The tariff sentence for offences under section 394 of the Penal Code is six years’ imprisonment and 12 strokes of the cane.14 In
Mohd Shahrin bin Shwi v Public Prosecutor,15 the Honourable Chief Justice suggested that a benchmark sentence of two years’ imprisonment is appropriate in respect of non-aggravated offences under section 330 of the Penal Code where minimal hurt was caused, or where law enforcement officers were not involved. For offences under section 403 of the Penal Code, a fine is the tariff where the sum involved is not large.16
9. Judicial benchmarking of sentences is an established facet of the criminal justice system in Singapore. Apart from PP v Tan Kei Loon Allan, wherein the Court of Appeal recognised the existence of this practice in the context of rape,17 the High Court in PP v Soh Lip Yong18 emphasised the importance of benchmarking when it upheld the appeal by the Prosecution against the sentence imposed by the District Court and held that the benchmark sentence in Chia Kim Heng Frederick v PP applied in full force in this case. The High Court also held that there has to be “good reason” for departure from the benchmark sentence. The Honourable Chief Justice held at para 36:
Due to the need for consistency in sentencing, the appropriate sentence in this case should be determined by the benchmark guidelines relating to the offence itself, rather than the court in which the sentence is being passed, subject of course to the district court limits. As mentioned above, as a guide for sentencing adult rapists, for a rape committed without any aggravating or mitigating factors, a figure of ten years’ imprisonment should be taken as a starting point in a contested case, in addition to six strokes of the cane.
[Emphasis added]
10. A benchmark sentence, or tariff, is a cumulative expression of all the penal theories: deterrence, rehabilitation, retribution and incapacitation.19
11. Thomas writes that the use of the term “tariff” is unfortunate as it “suggests a process of relating penalties to offences by the application of an inflexible scale and without consideration of the circumstances of the
individual offender.”20 Indeed this simplistic suggestion seems to be the one taken up by Loo. However, Thomas writes that “neither implication is true of the complex body of principle which has evolved to guide the sentencer in calculating the length of a sentence of imprisonment.”21
12. Judicial benchmarking is a relatively new concept. The early common law gave the sentencer little discretion. There was often only one punishment for an offence. For example, Munro writes that early sentencers could only recommend clemency for capitally convicted offenders on condition of their transportation as an alternative.22 Macaulay’s Indian Law Commission drafted the Indian Penal Code (1860) following the Charter Act 1933, and this Code was subsequently adopted in Singapore. The Singapore Penal Code as it is today allows for judicial discretion in sentencing in that it provides for maximum sentences, although amendments to the Code since 1984 have seen the introduction of mandatory and mandatory minimum sentences.
13. Although there is no formal statement in Singapore as to how a tariff is derived, Thomas’ comprehensive study of the English sentencing system is instructive. A tariff sentence is affixed by a 3-stage process: defining the range within the scale, fixing the ceiling and allowing for mitigation.23 The final sentence must not, of course, offend the totality principle.24
14. Benchmarking has been criticised as having the effect of curtailing judicial discretion in sentencing. It can be argued that senior judges cannot justifiably be the persons to shape the penal policy of a government elected democratically. However, those that make such criticisms ignore the fact that the very setting of benchmarks by senior judges underscores the independence of the Judicial Branch. Where the Legislature has not mandated the sentence to be imposed for a particular offence, the Judiciary takes upon itself the role of imposing a sentence that accurately reflects the prevailing social sentiment to the offence. In this sense, the common objection to mandatory sentences as constituting “interference” or “encroachment” into the judicial function cannot be said of judicial benchmarks.25
15. As already been said, the early common law was often mandatory and gave sentencers little discretion. The...
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