Public Prosecutor v Geevanathan s/o Thirunavakarusu

• Jurisdiction: Singapore
• Judge: Christopher Goh Eng Chiang
• Judgment Date: 23 May 2022
• Neutral Citation: [2022] SGDC 103
• Court: District Court (Singapore)
• Docket Number: District Arrest Case No. 911174 of 2020, Magistrate’s Appeal No. 9060-2022-01
• Published date: 17 June 2022
• Year: 2022
• Hearing Date: 25 March 2022
• Plaintiff Counsel: Ong Xin Jie (Attorney-General's Chambers)
• Defendant Counsel: Suang Wijaya (Eugene Thuraisingam LLP)
• Subject Matter: Misuse of Drugs Act,Consumption of Drugs,Criminal Procedure and Sentencing,Whether an offender is eligible for a mandatory treatment order,Whether a mandatory treatment order suitability report should be called
• Citation: [2022] SGDC 103

District Judge Christopher Goh Eng Chiang: Introduction

On 19 May 2020, the accused, Geevanathan s/o Thirunavakarusu (“the accused”), was charged in court for one charge of committing mischief by fire, an offence under s 435 of the Penal Code, Cap 224 (“PC”). He was remanded at the Institute of Mental Health (“IMH”) for psychiatric observation under s 247(3) of the Criminal Procedure Code, Cap 68 (“CPC”).

On 20 June 2020, an addition charge for consuming methamphetamine, without authorization, an offence under s 8(b)(ii) of the Misuse of Drugs Act, Cap 185 (“MDA”) was preferred against him. As the accused had previously been convicted for an offence for the consumption of Monoacetylmorphine and punished under s.33A(1) of the MDA, he was now liable to be punished under s.33A(2) of the MDA ie. an LT2 offence.

On 25 March 2022, the accused pleaded guilty to the LT2 charge. The charge under s 435 of the PC was taken into consideration for the purpose of sentencing (“TIC”).

Summary of the facts

The accused admitted to the Statement of Facts (“SOF”) without qualification. The following is a summary of the facts. It is fairly straightforward.

On 18 May 2020 at about 0410 hours, the accused was arrested in connection with a large fire that occurred the previous day in a flat in Jurong. Upon his arrest, he was brought back to Woodlands Police Divisional Headquarters (“Woodlands PDHQ”).

At Woodlands PDHQ, the accused provided two bottles of his urine samples which were sealed and marked in his presence. These samples were sent to the Health Sciences Authority (“HSA”) for testing. Both the accused’s urine samples tested positive for methamphetamine, a Specified Drug listed in the Fourth Schedule to the MDA.

The accused admitted to smoking “ice” (a street name for methamphetamine) sometime in the early morning of 17 May 2020. He had been smoking “ice” for about 10 months prior to his arrest and would do so daily. His daily consumption of “ice” amounted to approximately 0.5 to 1 grams of the drug.

Prior to the commission of this offence, the accused had been convicted on 12 August 2013 on one count under s 8(b)(ii) and punishable under s 33A(1) of the MDA, (vide DAC 24486/2012) ie. an LT1 offence, for consuming a Specified Drug, to wit, monoacetylmorphine, for which he was sentenced to 5 years’ 4 months’ imprisonment and 3 strokes of cane. As this conviction has not been set aside, the accused is thus now liable to be punished under s 33A(2) of the MDA.

Antecedents

The accused has numerous court convictions. These are set out below:

Date of Conviction	Offence	Sentence
17/03/1998	s 5, Cap 356 Unauthorized entry into protected place	Fine $500
01/11/2000	s 8(a), Cap 185 Possession of diamorphine	Imprisonment 12 months
16/04/2007	s 380, Cap 224 Theft in dwelling s 8(b)(i), Cap 185 Consumption of methamphetamine	Imprisonment 3 weeks Imprisonment 12 months (consecutive) Total: 12 months and 3 weeks’ imprisonment
12/08/2013	1 x reg 15(3), MDR Failing to report for urine test 1 x LT1 Consumption of monoacetylmorphine TIC charges: 2 x reg 15(3), MDR & 1 x LTI (morphine)	Imprisonment 9 months Imprisonment 5 years and 4 months & Caning 3 strokes (Concurrent)
02/03/2017	s 420 r/w s 116, Cap 224 Abetment of cheating	Imprisonment 18 weeks’

The accused’s other drug related antecedents include the following:

Date of Order	Offence	Outcome
29/12/2007	s 8(b)(i), Cap 185	Placed on 24 months drug supervision
18/12/2008	s 8(b)(ii), Cap 185	6 months Drug Rehabilitation Centre Extended by 12 months
17/06/2010	s 8(b)(ii), Cap 185	Placed on 24 months drug supervision
17/06/2010	s 8(b)(ii), Cap 185	Placed on 24 months drug supervision

The accused admitted to his antecedents without qualification.

Prosecution’s & Defence’s sentencing submissions Prosecution’s sentencing submission

The Prosecution sought for the mandatory minimum sentence of seven years’ imprisonment and six strokes of the cane.

Defence’s sentencing submission / plea in mitigation

The Defence, in its plea in mitigation, urged the Court to call for a Mandatory Treatment Order (“MTO”) suitability report under s 339(2) of the Criminal Procedure Code (Cap 68) (“CPC”). The following factors were put forward to support this submission.

The court was not precluded from imposing an MTO

Although s 337(1) of the CPC sets out the types of offences and offenders for which the court would be unable to impose a community-based-sentence (“CBS”), which includes an MTO, it was nonetheless submitted that the court was not precluded from imposing an MTO on an offender who had been convicted for an LT2 offence by virtue of the MTO carve out at s 337(2) of the CPC. In particular, ss 337(2)(a) and 337(2)(b) provides that a court can impose an MTO even if an accused is: a person mentioned under s 337(1)(d) or (g) of the CPC;¹ convicted of an offence under the MDA 1973, the Misuse of Drugs Regulations or the Intoxicating Substances Act 1987, after having previously been admitted to an approved institution or an approved centre.²

The court should call for an MTO suitability report

Having submitted that the accused was eligible for an MTO, the Defence next submitted that the court should call for an MTO suitability report. The Defence cited the High Court decision in GCX v PP [2019] 3 SLR 1325 (“GCX”) which set out the factors that a court would have to consider when it determines whether or not an MTO suitability report should be called for, and when an MTO should eventually be ordered.

The High Court in GCX held that, at this stage, the court would only need to be satisfied that there was a real prospect of rehabilitation.³ In this regard, it was highlighted that the accused has made tremendous progress since his arrest in May 2020. He had remained drug free since and had been dutifully attending sessions at the National Addiction Management Service (“NAMS”). For the first time in a long time, the accused had also managed to obtain gainful employment. The court should therefore call for an MTO suitability report to be fully appraised of the accused’s true rehabilitative potential.

The Defence also referred to a psychiatric report dated 27 May 2020 prepared by Dr Lucas Lim⁴ (“Dr Lim”) from the Institute of Mental Health (“IMH”). The accused, when he was first charged in court for the offence of mischief by fire, had been ordered by the court to be remanded at IMH to undergo psychiatric observation pursuant to s 247(3) of the CPC.

The Defence submitted that the IMH report had found a causal link between the accused’s mental illness and the offences.⁵ In particular, at [16(a)] of the IMH report, Dr Lim had opined that the accused’s “ …. mental illness had contributed to the alleged offence, as he demonstrated clear disorganization of his behaviour and marked paranoid delusions around the time of the alleged offence.” This, submitted the Defence, was relevant as s 339(3)(c) of the CPC requires that a psychiatrist, “in the preparation of an MTO report, to be satisfied that the psychiatric condition of the offender [was] one of the contributing factors for his committing the offence.”⁶

Prosecution’s reply

The Prosecution agreed with the Defence that the option of calling for an MTO suitability report was open to the court. However, the Prosecution objected to the calling of the report. The following reasons were highlighted: The accused’s rehabilitative prospects were questionable. First, the accused had been convicted of an LT2 offence. An offender is only punishable under LT2 when he has numerous related or identical antecedents. The accused had also now started consuming methamphetamine, which is a different drug from his LT1 conviction, which was monoacetylmorphine. In addition, the accused had admitted that he was consuming methamphetamine daily about ten months prior to his arrest;⁷ There is no evidence at present to suggest that the accused was suffering from any mental condition that contributed to his drug consumption offence.⁸ Although the IMH report does refer to a contributory link between the accused’s drug induced psychosis and the offence, the offence being referred to in the IMH report is the offence of mischief by fire, namely the TIC charge, and not the LT2 drug consumption charge.

Further, the Prosecution objected to the imposition of an MTO on the accused. It was submitted that in the present case, it was not expedient having regard to the circumstances to be the nature of the offence as well as the character of the offender, that an MTO should be ordered.⁹

Decision on sentence

The issues before me were as follows: Whether the accused is eligible for an MTO; Whether an MTO suitability report should be called for; and If not, what was the appropriate sentence to be imposed.

Whether the accused is eligible for an MTO

The Defence had submitted that the court is not precluded from calling a MTO suitability report. The Prosecution agreed with the Defence’s submission.

Under s 337(1) of the CPC, the court would be unable to impose a CBS (which includes an MTO), for certain offenders and offences. As the accused had been convicted for an LT2 charge, which carries a mandatory minimum sentence of seven years’ imprisonment and mandatory minimum caning of six strokes, the court would, on the face of it, be excluded from imposing an MTO because: The LT2 offence has a mandatory minimum imprisonment term and caning and is an offence that is punishable with a term of imprisonment which exceeds 3 years;¹⁰ The accused has previously been sentenced to a term of imprisonment exceeding three months;¹¹ The LT2 offence is one under the MDA and the accused had previously been admitted to...