Public Prosecutor v Natarajan Baskaran and Venkatachalam Thirumurugan

• Jurisdiction: Singapore
• Court: District Court (Singapore)
• Judge: Shawn Ho
• Judgment Date: 09 October 2019
• Neutral Citation: [2019] SGDC 210
• Citation: [2019] SGDC 210
• Hearing Date: 27 September 2019
• Year: 2019
• Published date: 16 October 2019
• Docket Number: DAC 912419-20 of 2019
• Plaintiff Counsel: Deputy Public Prosecutor Cheng Yuxi
• Defendant Counsel: Mr Siraj Shaik Aziz (Criminal Legal Aid Scheme)

District Judge Shawn Ho: INTRODUCTION

At its heart, the analytical framework of harm, culpability, aggravating and mitigating factors lends itself well to sentencing.

For the offence of voluntarily causing grievous hurt under s 325 of the Penal Code, harm is the pillar on which we place the cross-beams of culpability, aggravating factors, and mitigating factors.¹ Facts are the cornerstone of a case. The highly fact-specific nature of such offences means that the highest level of attention must be afforded to the facts and circumstances of each case.

In the present case, each Accused pleaded guilty to one count of s 325 read with s 34 of the Penal Code. They were intoxicated and voluntarily caused grievous hurt to the victim, Dutta Litton, by kicking his left elbow and punching him multiple times, causing him to suffer a dislocation of the left elbow. The victim was given hospitalisation leave for 14 days. The attack was unprovoked.

All things considered, each Accused was sentenced to 8 months’ imprisonment. The Statement of Facts can be found at Annex A.

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

ANALYTICAL FRAMEWORK

The interplay of harm,² culpability,³ aggravating and mitigating factors (“Analytical Framework”) lends itself well to sentencing.

The Analytical Framework for offences under s 325 of the Penal Code may be curated as follows:⁴

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.

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)].⁵

At the first step, the court should have regard to the offence-specific factors in deciding which band the offence in question falls under. Offence-specific factors comprise factors going towards: (a) the harm caused by the offence; and (b) the offender’s culpability.⁶

These categories may not always be watertight.⁷ For instance, the degree of planning and premeditation and the level of sophistication, were categorised as offence-specific factors going towards the offender’s culpability in Logachev Vladislav. Yet, the High Court observed that they may also relate to the harm caused by the offence in so far as they affect the likelihood of harm: Logachev Vladislav v Public Prosecutor [2018] SGHC 12 at [38]. The court should also evaluate the appropriate amount of weight to be given to each offence-specific factor: Lim Teck Kim v Public Prosecutor [2019] SGHC 99 at [26]-[27].⁸

Once the sentencing band, which defines the range of sentences which may usually be imposed for an offence with those features, is identified, the court has to go on to identify precisely where within that range the present offence falls in order to derive an “indicative starting point”.

At the second step, the court should have regard to the aggravating and mitigating factors which are personal to the offender to calibrate the sentence. These offender-specific factors comprise other aggravating and mitigating factors which do not directly relate to the commission of the offence.⁹ Sentencing is ultimately an exercise in evaluative ethical judgment; there might well be cases which will eventually be assessed to straddle the border between the bands: Ng Kean Meng Terence v Public Prosecutor [2017] SGCA 37 at [48].¹⁰

I pause here to note that a variant of the 2-step sentencing bands framework finds expression in drug trafficking and importation cases where the quantity of the drugs indicates the potential harm to society.¹¹ In this regard, the indicative starting sentence – based on the quantity of the drugs (viz. potential harm) – may be adjusted upward or downward to take into account the offenders’ culpability and the presence of aggravating or mitigating factors. Essentially, harm is the fulcrum for such cases.

In similar vein, for voluntarily causing grievous hurt under s 325 of the Penal Code, the seriousness of the injury caused (viz. harm) is a primary indicator of the gravity of the offence and can guide the court in determining the indicative starting point for sentencing. The indicative starting sentence may then be adjusted upward or downward based on the offenders’ culpability and other aggravating and mitigating factors: Public Prosecutor v BDB [2017] SGCA 69 at [42] and [55].¹²

Another model of the 2-step sentencing bands framework can be found in fatal accident cases under s 304A(a) of the Penal Code. For such cases, as the harm is the death of the victim, the harm is generally uniform. Accordingly, what sets such cases apart is, in the vast majority of cases, determined primarily by the accused’s culpability.¹³ After considering the accused’s culpability, a sentencing court takes into account other aggravating and mitigating factors: Public Prosecutor v Ganesan Sivasankar [2017] SGHC 176 at [54].¹⁴

Finally, in Public Prosecutor v Yeo Ek Boon Jeffrey [2017] SGHC 306 at [52], [57] and [60],¹⁵ the 3-Judge Panel noted that the:

“offence-specific and offender-specific aggravating and mitigating factors are necessarily factored into the analysis within the harm and culpability considerations themselves”.

An example of this approach may be found in Public Prosecutor v Sakthikanesh s/o Chidambaram & Ors [2017] SGHC 178 at [50]-[56], where the 3-Judge Panel held that exceptional performance during National Service was not a mitigating factor, as it reduces neither the defaulter’s culpability nor the harm he had caused by his offence.

In sum, the above discussion can be condensed as follows:

S/No	1st Step	2nd Step	Cases
1	Harm + Culpability	Aggravating/ Mitigating Factors	Ng Kean Meng Terence v PP [2017] SGCA 37
2	Harm	Culpability + Aggravating/ Mitigating Factors	Vasentha d/o Joseph v PP [2015] SGHC 197 Suventher Shanmugam v PP [2017] SGCA 25 PP v BDB [2017] SGCA 69
3	Culpability (Primary Factor) + Harm (Exceptional Cases)	Aggravating/ Mitigating Factors	PP v Ganesan Sivasankar [2017] SGHC 176
4	“Offence-specific and offender-specific aggravating and mitigating factors are necessarily factored into the analysis within the harm and culpability considerations themselves”	PP v Yeo Ek Boon Jeffrey [2017] SGHC 306 PP v Sakthikanesh s/o Chidambaram & Ors [2017] SGHC 178

The second observation is that the eclectic ensemble of cases adopting the Analytical Framework is testament to its versatility:¹⁶ Aggravated outrage of modesty under s 354(2) of the Penal Code: Public Prosecutor v BMF [2019] SGHC 227 and GBR v Public Prosecutor [2017] SGHC 296.¹⁷ Criminal intimidation by anonymous communication under section 507 of the Penal Code: Ye Lin Myint v Public Prosecutor [2019] SGHC 221. Section 22 of the Employment of Foreign Manpower Act: Chiew Kok Chai v Public Prosecutor [2019] SGHC 169. Section 409 of the Penal Code: Public Prosecutor v Ewe Pang Kooi [2019] SGHC 166. Section 331(3A) read with s 240(1) of the Securities and Futures Act: Public Prosecutor v Tan Seo Whatt Albert and another appeal [2019] SGHC 156 at [50]-[56].¹⁸ Section 23(1) of the Infectious Diseases Act: GCP v Public Prosecutor and another matter [2019] SGHC 153.¹⁹ Voluntarily causing hurt under s 323 of the Penal Code: Low Song Chye v Public Prosecutor and another appeal [2019] SGHC 140.²⁰ Stalking under s 7 of the Protection from Harassment Act: Lim Teck Kim v Public Prosecutor [2019] SGHC 99.²¹ Section 44(1)(a) of the Corruption, Drug Trafficking and Other Serious Crimes (Confiscation of Benefits) Act: Huang Ying-Chun v Public Prosecutor [2018] SGHC 269. Professional misconduct under s 53(1)(d) of the Medical Registration Act: Wong Meng Hang v Singapore Medical Council and other matters [2018] SGHC 253.²² Cheating at play under s 172A(2) of the Casino Control Act: Logachev Vladislav v Public Prosecutor [2018] SGHC 12. Causing grievous hurt by negligent act which endangered human life under s 338(b) of the Penal Code: Tang Ling Lee v Public Prosecutor [2018] SGHC 18. Voluntarily causing grievous hurt under s 325 of the Penal Code: Public Prosecutor v BDB [2017] SGCA 69.²³ Digital-penetration under s 376(2)(a) of the Penal Code: Pram Nair v Public Prosecutor [2017] SGCA 56, and Public Prosecutor v BUT [2019] SGHC 37.²⁴ Section 28(b) read with s 29(a) of the Prevention of Corruption Act: Seng Hwee Kwang v Public Prosecutor.²⁵ Offences under the Workplace Safety and Health Act: Public Prosecutor v GS Engineering & Construction Corp [2016] SGHC 276, Nurun Novi Saydur Rahman v Public Prosecutor [2018] SGHC 236, and MW Group Pte Ltd v Public Prosecutor [2019] SGHC 5. Section 182 of the Penal Code: Koh Yong Chiah v Public Prosecutor [2017] 3 SLR 447. Drug trafficking under s 5 of the Misuse of Drugs Act: Vasentha d/o Joseph v Public Prosecutor [2015] SGHC 197, Public Prosecutor v Lai Teck Guan [2018] SGHC 151, and Soh Qiu Xia Katty v Public Prosecutor [2018] SGHC 260. Sections 140, 146, and 148 of the Women’s Charter: Poh Boon Kiat v Public Prosecutor [2014] SGHC 186.²⁶

I am mindful that in assessing the level of harm or potential harm, the sentencing court should be careful not to double-count any factors which may already have been taken into account in assessing the level of culpability: Neo Ah Luan v Public Prosecutor [2018] SGHC 188 at [70].²⁷ (See also Andrew Ashworth, Sentencing and Criminal Justice (6th Edition, 2015, Cambridge University Press) at [4.3] and [4.5])

APPROPRIATE SENTENCE

Prescribed Punishment . The prescribed punishment...