Nur Azilah Bte Ithnin v Public Prosecutor

• Jurisdiction: Singapore
• Judge: Chao Hick Tin JA
• Judgment Date: 29 July 2010
• Neutral Citation: [2010] SGHC 210
• Date: 29 July 2010
• Docket Number: Magistrate’s Appeal No 355 of 2009 (DAC 36173/2009 & Ors)
• Published date: 03 August 2010
• Plaintiff Counsel: Shriniwas Rai and P.O. Ram (M/s Hin Rai & Tan)
• Hearing Date: 10 February 2010
• Defendant Counsel: Lee Lit Cheng and Mohamed Faizal (Attorney-General's Chambers)
• Court: High Court (Singapore)
• Subject Matter: Criminal Law

Chao Hick Tin JA: Introduction

This appeal raised the perennial question as to the appropriate sentence to be imposed on a young offender. Should rehabilitation always be the paramount consideration? Clearly multiple interests are involved in the consideration of this question which the court must carefully weigh and balance. As a general proposition, based on precedents, it would not be wrong to say that the court would be inclined, when sentencing a young offender, to seek his or her rehabilitation. In some cases however, the court has been confronted with a conflict between a sentencing consideration and the general policy enunciated by Parliament. Specifically, in the present case, should the fact that the young offender was engaged in a particular form of social mischief (ie harassment of debtors by runners of illegal moneylenders) which Parliament has clearly evinced an intention to stamp out mean that the court is precluded from appraising rehabilitation as the predominant consideration? At the very heart of this appeal, this court had to decide whether the rehabilitation of the young offender should still remain the pre-dominant sentencing consideration for youths who commit offences that have been woven in the tapestry of unlicensed moneylending activities.

On the facts of this case, while I agreed with the court below that probation would be inappropriate given the offender’s home environment and the nature of the offence, I was of the view that the court below should not have ruled out reformative training for the offender. While I recognised that Parliament had taken a serious view of the activities of unlicensed moneylenders and their related acts of harassment of debtors when Parliament enhanced the sentences for such offences (although the enhanced sentences were not applicable to the offender in the present case as the offences were committed before Parliament enhanced the sentences), I did not think that Parliament had wholly ruled out rehabilitation as a sentencing consideration when dealing with young offenders. I accordingly substituted the sentence of 48 months’ imprisonment with an order that the offender be sent for reformative training. I now set out my detailed reasons.

Facts

The offender in this case was Nur Azilah Binte Ithnin (the “Appellant”). At all material times of the offences she was charged with, she was 16 years of age. She came from a family of five and was the youngest amongst them. The Appellant did not come from a privileged background and her circumstances were quite unfortunate. She was physically abused by her father when she was young and her family’s financial position was a constant struggle. Her parents were unemployed. Only her siblings held stable jobs and supported the family. The Appellant received a daily allowance of $2.00. During her school holidays, she had to take on various jobs to support both her family and her herself.

The Appellant’s involvement with unlicensed moneylenders began in around April 2009 when she was forced to leave home after her parents discovered that she was suspended from school for poor attendance. Thereafter, the Appellant supported herself by working as a runner for two unlicensed moneylenders. After some time, she was allowed to return home. However, because of her family’s precarious financial position and of her desire to contribute to the family, she decided to continue working for the unlicensed moneylenders. The two unlicensed moneylenders with whom the Appellant was in contact with were known as “Storm” and “Steven”. On their instructions, the Appellant would commit acts of annoyance or harassment on designated debtors. In return, she was usually paid $40–$50 (depending on the unlicensed moneylender) for harassing each debtor, and would be paid much more (about $200) if the harassment included the setting of fire. Altogether, seven such acts were committed by the Appellant.

On three separate occasions in the month of June 2009, the Appellant committed acts of harassment on three housing units located in Ang Mo Kio, Compassvale Crescent and Yishun Ring Road. On each occasion, the Appellant and/or other accomplices would receive instructions from the unlicensed moneylenders to write statements on the staircase landings leading up to the targeted housing unit asking for money to be repaid and to splash paint on the doors of those units. These acts formed the basis of DACs 36173/2009, 36176/2009 and 36181/2009, where the Appellant was charged with harassing debtors on behalf of unlicensed moneylenders by defacing and causing damage to properties, offences punishable under section 28(2)(a) read with section 28(1)(b) and section 28(3)(a)(i) of the Moneylenders Act (Cap 188, 2010 Rev Ed)) (“Moneylenders Act”), read (where relevant) with either sections 34 or 109 of the Penal Code (Cap 224, 2008 Rev Ed) (“Penal Code”) .

In the same month of June 2009, the Appellant also committed acts of harassment on another group of housing units where she, together with other accomplices, set fire to those units. On three such occasions, the Appellant and the accomplices splashed thinner on the doors of targeted units and set it alight. In one of those instances, the shoe rack beside the unit was also set on fire. These acts formed the basis of DACs 41437/2009, 41438/2009 and 41439/2009, where the Appellant was charged for committing mischief by fire with the intention to cause damage to properties, an offence punishable under section 435, read with section 34 (where relevant) of the Penal Code.

The seventh charge related to an act which occurred on 22 June 2009, where the Appellant and an accomplice splashed thinner at the clothing hung along the corridor and the shoe rack placed outside the targeted unit in Ang Mo Kio. It would appear that they were spotted before they could light those objects on fire. This act formed the basis of DAC 41436/2009, where the Appellant was charged for attempting to commit mischief by fire, intending to cause damage to property, punishable under section 435 and read with sections 511 and 34 of the Penal Code.

District Court Proceedings

Before the District Court below, the Appellant (unrepresented at that time) pleaded guilty to all seven charges. In addition, the Appellant consented to having six additional charges of harassing debtors on behalf of unlicensed moneylenders by defacing and causing damage to properties taken into consideration (DACs 36171/2009, 36172/2009, 36178/2009, 36179/2009, 36180/2009 and 36182/2009). The acts which were the bases for the six charges taken into consideration involved the same modus operandi of writing declaratory statements of money owed on the walls of the staircase landings leading up to the targeted housing unit and splashing paint on the doors of those units.

After considering the mitigation plea of the Appellant and the submissions on sentence by the Prosecution, the District Judge (“DJ”) sentenced the Appellant to a total of 48 months’ imprisonment. For each of the three charges of harassment of debtors, the Appellant was sentenced to 9 months’ imprisonment, and for each of the three charges of committing mischief by fire, the Appellant was sentenced to 26 months’ imprisonment. As for the charge of attempted mischief by fire, the Appellant was sentenced to 13 months’ imprisonment. The DJ ordered the sentences for every charge under each category of charge to run consecutively and the rest to run concurrently. The effective sentence was therefore 48 months’ imprisonment.

The DJ took into account several considerations in determining the appropriate sentence Firstly, as the offences committed by the Appellant were sufficiently heinous to warrant a tough stance by the courts, the court’s general approach of rehabilitating young offenders must be superseded by deterrence. Secondly, the DJ found that the Appellant had minimal rehabilitative prospects. The Appellant lacked familial support, had a history of physical abuse by her father and had also taken to substance abuse. Thirdly, the DJ found that the option of sending the Appellant to a Reformative Training Centre was inappropriate since the Appellant had a history of an inability to get along with her peers. Fourthly, the DJ placed significant emphasis on the determination by the Government to reduce incidents of unlicensed moneylending and the related harassment, see the DJ’s Grounds of Decision reported at [2009] SGDC 404 at [12], [19] and [20]. In view of this public interest, the DJ inferred that deterrence must therefore be the dominant and primary consideration for such offences notwithstanding the relatively young age of the offender.

The Present Appeal

In her submissions before this Court, the Appellant’s broad substantive grounds of appeal were that the sentence meted out by the DJ was manifestly excessive and that the DJ had erred in appreciating the materials before him. In reply, the Prosecution substantively repeated their arguments which were raised in their submissions on sentence to the court below, ie the need for a deterrent sentence in view of...