Public Prosecutor v Ibrahim bin Bajuri

• Court: District Court (Singapore)
• Judge: Shawn Ho
• Judgment Date: 13 April 2020
• Neutral Citation: [2020] SGDC 89
• Citation: [2020] SGDC 89
• Docket Number: DAC 933843 of 2019 & Ors
• Hearing Date: 06 April 2020
• Published date: 21 April 2020
• Plaintiff Counsel: Deputy Public Prosecutor Amanda Sum Yun Qian
• Defendant Counsel: Mr Wee Hong Shern (Ong & Co LLC)

District Judge Shawn Ho: INTRODUCTION

The Accused’s chequered past has cast a long shadow over his life.

With a string of antecedents for property, drug-related and violent offences, his past assumed a certain salience in the present case. He pleaded guilty to 3 charges under ss 379, 323 and 380 of the Penal Code (Cap 224, 2008 Rev Ed) punishable under s 50T(2)(b) of the Prisons Act (Cap 247, 2000 Rev Ed).

The sentencing submissions pulled in different directions. The Defence sought an imprisonment term of 21 months and 72 days. As against this, the Prosecution pressed for 5 years’ Corrective Training. The formative arc of Corrective Training (“CT”) was traced in Sim Yeow Kee v Public Prosecutor [2016] SGHC 209, where the 3-Judge Panel laid out an analytical framework for CT.

At its heart, this framework balances a melange of sentencing principles – escalation, consecutive sentences, totality, crime prevention, proportionality, and the reformation and rehabilitation of offenders.

Where do the scales of justice lie on this broad canvas? All things considered, the Accused was imprisoned for 33 months and 72 days.

In my judgment, I considered that imposing the minimum term of five years of CT would be unduly disproportionate. I will explain briefly.

The Accused’s antecedents gave me pause. As he was a persistent habitual offender, I agreed with the Prosecution that the Escalation principle was engaged and to have all three of his custodial sentences run consecutively. The Accused would therefore have been sentenced to regular imprisonment for a period of about 33 months.

Both parties accepted that the Accused would qualify for the Mandatory Aftercare Scheme (MAS). On the basis that he is released after serving two-thirds of a 33-month imprisonment term (i.e. after serving 22 months), the Accused would thereafter be eligible for around 11 months of mandatory aftercare under the MAS. He could then be placed in a “step-down” programme as contemplated under the MAS, such that he might have the opportunity to be rehabilitated and reintegrated into society.

In the final analysis, a sentence of regular imprisonment (which takes into account the Escalation principle and the consecutive sentence exception) twinned with the MAS would adequately fulfil the dual aims of specifically deterring and rehabilitating the Accused. In the present case, imposing the minimum term of five years of CT would be unduly disproportionate.

The Statement of Facts can be found at Annex A. My grounds of decision are summarised below at [112].¹

No appeal has been lodged. I now set out my detailed reasons.

ANALYTICAL FRAMEWORK

The two-stage framework in Sim Yeow Kee is as follows: First Stage: Whether the offender qualifies for the CT regime under s 304(1) of the Criminal Procedure Code (Cap 68, 2012 Rev Ed). Second Stage: Whether it is expedient to sentence the offender to CT with a view to his reformation and the prevention of crime.²

For the second stage, there is a 3-step process:

Briefly, my answers are: ‘Yes’ to the First Stage, and ‘No’ to the Second Stage.

First Stage: Does the Offender Qualify for Corrective Training?

Yes, the Accused qualified for Corrective Training under s 304(1) of the CPC.³ This is a threshold question.

Second Stage: Is it Expedient to Sentence the Offender to Corrective Training with a view to his Reformation and the Prevention of Crime? Step 1: What are the Likely Imprisonment Sentences? Prescribed Punishment

Section 379 Cap 224. The prescribed punishment for s 379 Cap 224 is imprisonment for a term which may extend to 3 years, or with fine, or with both.

Section 323 Cap 224. The prescribed punishment for s 323 Cap 224 is imprisonment for a term which may extend to 2 years, or with fine which may extend to $5,000, or with both.

Section 380 Cap 224. The prescribed punishment for s 380 Cap 224 is imprisonment for a term which may extend to 7 years, and shall also be liable to a fine.

An offence’s statutory maximum sentence signals the gravity in which Parliament views such offences. A sentencing judge ought therefore to take this into account when determining precisely where the offender’s conduct falls within the entire range of punishment devised by Parliament.⁴ Put another way, the court should ensure that the full spectrum of sentences enacted by Parliament is carefully explored in determining the appropriate sentence.⁵

For completeness, if it is not possible to determine the “normal level of sentences” for the Totality Principle, the midpoint of the maximum prescribed sentence might be a useful proxy: Ye Lin Myint v Public Prosecutor [2019] SGHC 221 at [94].

We turn next to the Escalation principle.

Escalation Principle

The Escalation principle is no more than a reformulation of the longstanding principle that specific deterrence may justify a longer term of imprisonment being imposed on a persistent offender in light of his antecedents, if these reflected a tendency for repeat offending or a marked proclivity toward criminal offending.⁶

The appropriateness of escalation requires a scrupulous assessment of the particular factual matrix.⁷ This is by no means a mechanical exercise. The court is required to assess whether the objective of preventing re-offending is in fact met by the use of escalation.⁸

Applying the Escalation principle incorporates the safeguard of proportionality. Hence, before a court imposes an uplift on an accused person’s previous sentences, there must be a careful comparison with the accused person’s previous offending.⁹

In order to have the correct factual basis for applying the Escalation principle, in addition to the Criminal Records Office record, it might sometimes be helpful or necessary to refer to, among other things, the charges, statement of facts, psychiatric reports, and grounds of decision (where available). It is not every case where this will be called for – but certainly where the Escalation principle is in play, a court should endeavour to have as complete a picture as practicable.¹⁰

In this connection, I asked for and considered the charges, statement of facts, and mitigation plea pertaining to the Accused’s antecedents in 2015 and 2018.

Ultimately, the assessment for the Escalation principle is necessarily a fact-specific and contextual one, requiring a judgment of experience and discernment.¹¹

I agreed with both the Prosecution and Defence that the Escalation principle was engaged in the present case.¹² The Defence pointed out that for the Accused’s theft and violence-related antecedents, the heftiest sentence awarded did not exceed 2 years,¹³ and there was ample room for escalation as s 380 Cap 224 provides for a maximum term of 7 years.¹⁴

For my analysis of the harm, culpability, mitigating and aggravating factors in the present case, please see below at [73]-[90].

All things considered, the Accused’s likely sentence would be imprisonment for a period of about 33 months, as detailed in the table below.

We segue to the issue of consecutive sentences.

Consecutive Sentences

There is a general rule of consecutive sentences for unrelated offences: Court of Appeal in Muhammad Sutarno bin Nasir v Public Prosecutor [2018] SGCA 43 at [22] endorsing Public Prosecutor v Raveen Balakrishnan [2018] SGHC 148 at [41]-[46].¹⁵

In the present case, all three of the proceeded charges arose from separate incidents and were committed on different dates.¹⁶ In particular, the voluntarily causing hurt offence under s 323 Cap 224¹⁷ violated a completely different legally-protected interest from the theft offences.¹⁸ The theft offences involved different victims, and there was no unity of purpose or design in the commission of the theft offences.¹⁹

Accordingly, I agreed with the Prosecution to have all three of his custodial sentences run consecutively.²⁰

Interplay of Harm, Culpability & Mitigating/ Aggravating Factors

At its heart, the interplay of Harm, Culpability, and Mitigating/ Aggravating factors (“Analytical Framework”) lends itself well to sentencing.

Harm is a measure of the injury that has been caused to society by the commission of the offence.²¹ Harm may: Cleave into “physical harm” and “psychological harm” for maid abuse cases under s 323 read with s 73(2) of the Penal Code: Tay Wee Kiat and another v Public Prosecutor and another appeal [2018] SGHC 42 at [70]-[72]; and Include serious economic loss to the victim under s 17(1) of the Medical Registration Act: Neo Ah Luan v Public Prosecutor [2018] SGHC 188 at [69].

As an aside, the nature of harm (i.e. whether the harm is physical or intangible) is considered by Singapore’s Model Artificial Intelligence Governance Framework (Second Edition, 21 January 2020),²² which also harnesses a severity/ probability of harm matrix.

Culpability is a measure of the degree of relative blameworthiness disclosed by an offender’s actions and is measured chiefly in relation to the extent and manner of the offender’s involvement in the criminal act.²³

The Analytical Framework for offences under ss 379, 323 and 380 of the Penal Code may be curated as follows:

Two observations can be made in relation to the Analytical Framework: The synergistic interplay between harm, culpability, aggravating and mitigating factors enhances sentencing. The eclectic ensemble of cases adopting the Analytical Framework is testament to its versatility.

First, the synergistic interplay of harm, culpability, aggravating and mitigating factors enhances sentencing. While facts are the cornerstone, harm and culpability are the pillars on which we place the cross-beams of aggravating and mitigating factors.

The typical framework consists of a 2-step sentencing bands framework as found in Ng Kean Meng Terence v Public Prosecutor [2017] SGCA 37 at [73(a), (c) and (d)].²⁴

At the first step, the...