Public Prosecutor v Mohammad Al-Ansari bin Basri

JurisdictionSingapore
JudgeV K Rajah JA
Judgment Date31 October 2007
Neutral Citation[2007] SGHC 187
Date31 October 2007
Subject MatterWhether rehabilitation dominant consideration,Criminal Procedure and Sentencing,Section 13 Criminal Procedure Code (Cap 68, 1985 Rev Ed),Principles,Section 5(1) Probation of Offenders Act (Cap 252, 1985 Rev Ed),Young offender committing serious offences,Whether probation must be ordered,Sentencing
Docket NumberMagistrate's Appeal No 81 of 2007
Published date01 November 2007
Defendant CounselJames Bahadur Masih (Tang & Tan)
CourtHigh Court (Singapore)
Plaintiff CounselJanet Wang (Attorney-General's Chambers)

31 October 2007

V K Rajah JA:

Introduction

1 The courts generally lean in favour of rehabilitating young offenders between 16 and 21 years of age whenever they consider it beneficial to both the offender and society. This, however, does not mean that probation will always be ordered as a matter of course. Indeed, the courts should not abandon the broad overriding consideration of protecting the community’s interests in deterring crime, both on a general and specific level. The courts should always try to strike the right balance between the two sentencing principles of rehabilitation and deterrence whenever a young offender is sentenced.

2 Young offenders and their legal advisors should not and cannot expect the courts to invariably place on probation all first-time young offenders simply because they are likely to respond positively to rehabilitation through community-based programmes which commonly find expression in probation orders. The courts would plainly be remiss in discharging their judicial duty to protect the community if they fashion a sentencing policy that may signal to all prospective young offenders that probation will be prescribed as a matter of course, regardless of the nature and circumstances of the offending conduct. This would simply invite, and perhaps even encourage, potential young offenders to engage in criminal behaviour. The ability of a young offender to respond positively to rehabilitative efforts is an important but not necessarily an overriding consideration in all cases.

3 This was an appeal by the Public Prosecutor (“the Prosecution”) against the sentence imposed on the respondent by the district judge. The respondent was charged with robbery under s 392 read with s 34 of the Penal Code (Cap 224, 1985 Rev Ed) (“Penal Code”), together with two others. Another charge was taken into consideration for the purposes of sentencing, viz, s 352 of the Penal Code for intentionally using criminal force on the victim. The appeal brings into sharp focus the tension between the competing imperatives of the rehabilitation of young offenders on the one hand and the need to protect the community’s interests in deterring crime on the other hand. On one view, these two imperatives are but two sides of the same coin, intertwined as they are on the premise that the young offender should be rehabilitated to become a good citizen, such that he (or embryonic young offenders) will not adversely affect the community at large at a later stage, by engaging in even more serious crimes. Indeed, as the English Court of Appeal in R v Smith [1964] Crim LR 70 sagely noted:

In the case of a young offender there can hardly ever be any conflict between the public interest and that of the offender. The public have no greater interest that he should become a good citizen. The difficult task of the court is to determine what treatment gives the best chance of realizing that object. That realization is the first and by far the most important consideration. [emphasis added]

4 In my view, this statement correctly and accurately states the overriding approach which the courts should take when considering the appropriate sentence to be meted out to young offenders. It is plain that the rehabilitation of the young offender should constitute the foremost consideration of the sentencing process, but that should not be the end of the enquiry. There is concurrently the need to ensure that the appropriate message is sent out such that the specific young offender and other prospective young offenders are adequately deterred from committing offences. In balancing these two general imperatives, a myriad of factors is inevitably involved, the most relevant of which in the instant appeal was the seriousness of the offence.

5 At the end of the hearing, I allowed the Prosecution’s appeal and sentenced the respondent to reformative training with immediate effect. In these grounds of decision, apart from providing detailed reasons as to why the appeal was allowed, I shall elucidate the relevant factors which the courts should consider as a matter of course in determining the sentencing “treatment” which best reconciles both the young offender’s rehabilitative prospects and the interests of the community at large.

The facts

6 The facts are fairly straightforward and can be stated within a brief compass. Part of the reason for this is because the respondent had admitted unreservedly to the Statement of Facts dated 28 February 2007. From this Statement of Facts, it appears that the unhappy episode commenced at about 6.15pm on 11 August 2006, while the respondent was playing sepak takraw with one Mohamed Fadzli bin Abdul Rahim (“Fadzli”) at the court near Blk 419 Tampines Street 41. They finished the game at about 9.45pm and after that, Fadzli told the respondent that he would be taking a “joyride” with his cousin, one Norhazri bin Mohd Faudzi (“Norhazri”). The respondent expressed his desire to accompany them.

7 Sometime in the early hours of 12 August 2006 (after 12.00am), the respondent joined Norhazri and Fadzli for the joyride in Norhazri’s Malaysian-registered car (“the car”). The trio proceeded to Tampines Street 21 for supper at a coffee shop. Shortly thereafter, Fadzli revealed to the respondent and Norhazri his desire to have sex with a sex worker for free. At that juncture, the respondent realised that both his accomplices, in his own words, “were planning to do something bad to a prostitute”.

8 The respondent and his accomplices then proceeded to Geylang where they prowled for sex workers but were unable to persuade any to enter the car. It appears that the number of passengers in the car deterred the sex workers approached from accepting the invitations from the respondent’s accomplices. The respondent then alighted somewhere in Geylang so as to enhance the prospects of persuading a sex worker to enter the car. However, when this proved to be equally futile, the respondent was picked up again by his accomplices.

9 As they continued cruising, the respondent and his accomplices chanced upon the victim, a foreign sex worker, at around 3.00am. The victim was walking alone along Lorong 34 Geylang near Geylang Road. Norhazri stopped the car near the victim and asked her whether she was interested in providing sexual services to Fadzli. The victim agreed and informed Fadzli that she would charge a sum of $80. Thereafter, she boarded the car and sat in the rear passenger seat of the vehicle beside the respondent.

10 The victim was transported to an unknown road before Norhazri stopped the vehicle. He and the respondent then alighted and topped up the radiator with water to prevent overheating of the vehicle. As they were doing so, Fadzli moved to the rear passenger seat in the car and sat beside the victim. Subsequently, after they drove off, Fadzli, who was then seated next to the victim in the rear passenger seat, started to grope her breasts. The victim struggled with Fadzli, but he managed to forcefully remove all her clothes save for her panties. During the struggle, the victim’s handbag was wrenched from her.

11 The group subsequently stopped the vehicle along Jalan Sam Kongsi. The respondent alighted from the vehicle. Fadzli tried to push the victim out of the car but when the victim struggled, Norhazri and Fadzli started to assault the victim. After the assault, the respondent assisted Fadzli to push the victim out of the vehicle. The victim was then raped by Fadzli. The victim sustained multiple injuries as a result of the robbery and sexual assault.

12 Subsequently, the respondent handed the victim’s handbag to Norhazri and threw one of her shoes out of the vehicle. This was done to remove any physical evidence that might later link the respondent and his accomplices to the victim. The respondent and his accomplices then drove off, leaving the undressed and battered victim behind. Then, the respondent helped his accomplices to count the money taken from the victim’s handbag. He was later given a packet of cigarettes and some food by Fadzli. These had been purchased with the stolen money. The respondent was 16 years of age at the time of the offence.

13 The respondent was arrested on 24 August 2006. He has since pleaded guilty to one charge under s 392 read with s 34 of the Penal Code for having committed robbery with Norhazri and Fadzli. As I mentioned above (at [3]), another charge was taken into consideration for the purposes of sentencing. This was a charge under s 352 of the Penal Code for intentionally using criminal force on the victim. For completeness, I should state that the punishment prescribed for an offence of robbery committed in furtherance of the common intention of others after 7.00pm and before 7.00am under s 392 read with s 34 of the Penal Code is a mandatory minimum imprisonment term of three years and 12 strokes of the cane. On the other hand, an offence of using criminal force under s 352 of the Penal Code is punishable with a maximum imprisonment term of three months, and a maximum fine of $500 may also be imposed.

The district judge’s decision

The hearing before the district judge

14 The hearing before the district judge took place over five days in the period between February and May 2007, with the district judge issuing her grounds of decision in PP v Mohammad Al-Ansari bin Basri [2007] SGDC 145 (“GD”). In the course of the hearing, the district judge called for probation and reformative training reports. The Prosecution vigorously objected to probation, arguing that in view of the seriousness of the offence and the relevant circumstances, it was not warranted. The Prosecution in turn submitted that the respondent should be sent for reformative training at the Reformative Training Centre (“RTC”) if the district judge was not minded to impose the sentence prescribed by s 392 of the Penal Code.

15 In deciding whether probation could and should be granted, the district judge...

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