Public Prosecutor v Adith s/o Sarvotham

• Jurisdiction: Singapore
• Judge: Sundaresh Menon CJ
• Judgment Date: 27 May 2014
• Neutral Citation: [2014] SGHC 103
• Court: High Court (Singapore)
• Docket Number: Magistrate’s Appeal No 302 of 2013
• Year: 2014
• Published date: 03 June 2014
• Hearing Date: 17 April 2014
• Plaintiff Counsel: Ong Luan Tze and Low Chun Yee (Attorney-General's Chambers)
• Defendant Counsel: Randhawa Ravinderpal Singh s/o Savinder Singh Randhawa (Kalco Law LLC)
• Subject Matter: Criminal Procedure and Sentencing,Sentencing,Young offenders
• Citation: [2014] SGHC 103

Sundaresh Menon CJ: Introduction

This was an appeal brought by the Public Prosecutor against the decision of the District Judge in Public Prosecutor v Adith s/o Sarvotham [2013] SGDC 389. Adith s/o Sarvotham (“the Respondent”) pleaded guilty to three charges under the Misuse of Drugs Act (Cap 185, 2008 Rev Ed) (“the MDA”) and was sentenced to a term of probation. Four other charges under the MDA were taken into consideration. The Prosecution brought the present appeal on the ground that the sentence of probation was wrong in principle.

The Respondent was convicted of the following charges:

Charge (DAC No)	MDA Section	Offence	Punishment
DAC 15168/2013	Section 10	Cultivation of cannabis plants	Minimum: 3 years imprisonment or $5,000 fine or both Maximum: 20 years imprisonment or $40,000 fine or both
DAC 15171/2013	Section 8(b)(ii) punishable under s 33	Consumption of a cannabinol derivative	Maximum: 10 years imprisonment or $20,000 fine or both
DAC 24697/2013	Section 5(1)(a) punishable under s 5(2)	Trafficking of diamorphine	Minimum: 5 years and 5 strokes Maximum: 20 years and 15 strokes

The following charges were taken into consideration during sentencing:

Charge (DAC No)	MDA Section	Offence	Punishment
DAC 15169/2013	Section 8(a) punishable under s 33	Possession of cannabis	Maximum: 10 years imprisonment or $20,000 fine or both
DAC 15170/2013	Section 8(a) punishable under s 33	Possession of cannabis	Maximum: 10 years imprisonment or $20,000 fine or both
DAC 15172/2013	Section 9 punishable under s 33	Possession of utensils for drug taking	Maximum: 3 years imprisonment or $10,000 fine or both
DAC 19271/2013	Section 8(b)(ii) punishable under s 33	Consumption of a cannabinol derivative	Maximum: 10 years imprisonment or $20,000 fine or both

Background facts

The Respondent was 17 years of age when he was convicted of these offences.

On 15 January 2013 at about 11.20pm, the Respondent was arrested outside his flat by Central Narcotics Bureau officers. He was searched and various drug exhibits belonging to him were recovered. The flat at which he was residing was also searched. More drug exhibits were seized, including two potted plants which were later analysed and found to be cannabis plants. The Respondent admitted to owning the cannabis plants and consuming cannabis. He had started cultivating the plants in December 2012 and had watered them once every two days. The Respondent was subsequently released on bail.

On 26 April 2013 at about 7.55pm, whilst the Respondent was out on bail, police officers conducted a spot check on him at the Singapore Shopping Centre. The officers found in the Respondent’s possession four blue straws containing a powdery substance. This was subsequently analysed and found to contain 0.06g of diamorphine. The Respondent admitted to ownership and possession of the diamorphine. He stated that he had obtained it from one “Sha Boy” and was told by him to sell one straw at a price of $20. The Respondent was on the way to meet one “Jayin” for this purpose when he was arrested.

The proceedings below

At the hearing below on 10 September 2013, the District Judge called for both probation and reformative training pre-sentence reports. The matter was then adjourned for sentencing. On 4 October 2013, the probation and reformative training reports (“the PR” and “the RT Report” respectively) were furnished to the court. At the end of the hearing, the District Judge directed the probation officer to prepare a supplementary probation report (“the SPR”) in order to enable him to evaluate whether a period of hostel residence would be a more suitable option.

The PR initially recommended that the Respondent be placed on 27 months’ split probation with six months of electronic tagging, 200 hours of community service, regular urine tests and a bond for good behaviour. The SPR contained a revised recommendation of 30 months’ split probation (12 months of intensive probation and 18 months of supervised probation) with an additional period of voluntary residence at a residential facility for 12 months. The other recommended conditions were not altered. The RT Report found the Respondent physically and mentally fit for reformative training. It was also noted that in the course of the training, the Respondent would be exposed to courses that would address his attitudes and upgrade his educational level.

The decision below

The District Judge held that: the principal consideration when sentencing a young offender is rehabilitation although this must be balanced against the interests of both general and specific deterrence; the findings and recommendations of the PR and SPR were to be preferred over the RT report because the latter only took into account a limited range of information, whereas the recommendations of the PR and SPR were more closely targeted at the root causes of the Respondent’s offending behaviour and he could participate in specific programmes targeted at his reform and rehabilitation; it could not be in the public interest that every young drug offender be incarcerated and exposed to the negative influences of hardened criminals in the prison environment; the MDA did not specifically prohibit the court from placing a young drug trafficker on probation if the court found it appropriate to do so; the nature of the offence is only one of the many relevant factors which are taken into account in arriving at an appropriate sentence. The guiding principle in assessing the suitability of probation is the likelihood of success of the attempted rehabilitation; on balance, the Respondent had good prospects for rehabilitation and an intensive probation order together with the stringent conditions and rehabilitative programmes would not detract from the aim of both specific and general deterrence; the Respondent demonstrated genuine remorse by being co-operative during the social investigation process, abiding by time restrictions, ceasing to smoke, drink and consume drugs and acknowledging the severity of his offences; and there was no evidence that the Respondent had gone to the extent of trafficking drugs of substantial quantities; he had no intention of using the drugs from the cannabis plant for consumption or for sale and had intended to sell drugs only to one potential customer.

The District Judge therefore sentenced the Respondent to 36 months of probation with the following conditions: voluntary residence at a residential facility, The New Charis Mission (“TNCM”), for a period of 12 months; electronic tagging for six months upon discharge from TNCM; observance of a time restriction of 10pm to 6am unless otherwise varied by the Probation Services Branch, in accordance with the guidelines approved by the court; 240 hours of community service; and regular urine tests.

My decision The appropriate sentence

It is uncontroversial that an appellate court should interfere with a sentence meted out by the trial judge only in limited circumstances. Specifically, it must be satisfied that: the trial judge had made the wrong decision as to the proper factual matrix for the sentence; the trial judge had erred in appreciating the material before him; the sentence was wrong in principle; or the sentence imposed was manifestly excessive or manifestly inadequate. See PP v Kwong Kok Hing [2008] 2 SLR(R) 684 (“Kwong Kok Hing”) at [14].

The Prosecution’s essential argument was that the sentence of probation imposed by the District Judge was wrong in principle or manifestly inadequate and that a sentence of reformative training should have been imposed instead.

There are four generally accepted principles of sentencing, namely, deterrence, retribution, prevention and rehabilitation. In any given factual matrix, the court should assess which of these considerations has or have the greatest relevance (see Kwong Kok Hing at [33]). Where serious offences have been committed by the accused person, the sentencing principle of deterrence comes to the fore. General deterrence “aims to educate and deter other like-minded members of the general public by making an example of a particular offender” (PP v Law Aik Meng [2007] 2 SLR(R) 814 at [24]) while specific deterrence “relates to the effect that punishment might have in persuading an accused to refrain from further unlawful conduct by the fashioning of an appropriate sentence that takes into account the nature of the offence and his peculiar disposition ” [emphasis in original] (PP v Loqmanul Hakim bin Buang [2007] 4 SLR(R) 753 at [25]).

On the other hand, rehabilitation is generally the dominant sentencing consideration when deciding on an appropriate sentence for a young offender aged 21 years and below (see PP v Mok Ping Wuen Maurice [1998] 3 SLR(R) 439 at [21]). However, this consideration is usually outweighed by the need for punishment or deterrence where serious crimes such as drug trafficking have been committed (see PP v Justin Heng Zheng Hao [2012] SGDC 219 at [13] (“Justin Heng”). The District Court in Justin Heng took pains to emphasise that probation had been ordered in PP v Wong Jiayi [2003] SGDC 53 only because it was an exceptional case where the risk of re-offending was clearly low. Where the individual offender’s capacity for rehabilitation is “demonstrably high”, this could outweigh public policy concerns that are traditionally understood as militating against probation (Justin Heng at [15]).

Turning to the facts of the present case, the litany of serious offences that had been committed by the Respondent including trafficking, consumption, cultivation and possession of prohibited drugs would ordinarily have warranted a sentence of reformative training. Moreover, there were no unusual or...