Public Prosecutor v Raveen Balakrishnan

JurisdictionSingapore
JudgeSundaresh Menon CJ
Judgment Date26 June 2018
CourtHigh Court (Singapore)
Docket NumberMagistrate's Appeal No 9330 of 2017/01
Date26 June 2018
Public Prosecutor
and
Raveen Balakrishnan

[2018] SGHC 148

Sundaresh Menon CJ

Magistrate's Appeal No 9330 of 2017/01

High Court

Criminal Procedure and Sentencing — Sentencing — Rule against double counting — Aggravating factors used in calibration of individual sentences — Whether factors should be counted again in deciding how individual sentences should be ordered to run — Circumstances constituting double counting of sentencing factors — Scope of applicability of rule against double counting

Criminal Procedure and Sentencing — Sentencing — Totality principle — Justification — Whether principle applied with greater force in cases involving longer aggregate sentences

Criminal Procedure and Sentencing — Sentencing — Unrelated offences — Offences took place on different occasions about six months apart, at different locations, involved different victims, and did not share any unity of purpose or design — Second offence committed while offender was on bail for having committed first offence — Whether individual sentences should be ordered to run consecutively

Held, allowing the appeal:

(1) As a general rule, a multiple offender who had committed unrelated offences should be separately punished for each offence, and this should be achieved by an order that the individual sentences run consecutively. This general but displaceable rule would better balance the need for consistency and flexibility, and would also be preferred as a matter of principle and policy: at [41] and [48].

(2) Section 307(1) of the Criminal Procedure Code (Cap 68, 2012 Rev Ed) (“CPC”), the one-transaction rule, and the general rule of consecutive sentences for unrelated offences should be regarded as complementary principles that collectively help a court decide how sentences should be ordered to run in relation to a multiple offender. Generally, sentences for unrelated offences should run consecutively, while sentences for related offences forming part of a single transaction should run concurrently, subject to s 307(1) of the CPC. Where there was a mix of related and unrelated offences, the sentences for those offences that were unrelated should generally run consecutively with one of the sentences for the related offences: at [52] and [54].

(3) The operation of the general rule of consecutive sentences for unrelated offences was subject to three qualifications: the totality principle, the fact that the rule was neither invariable nor mandatory and may be departed from, and the need to give effect to any statutory provision that abridged the operation of the general rule: at [65] to [67].

(4) The question of whether the offences were “unrelated” was not novel and in any event had to be answered in the application of the one-transaction rule. To say that two offences were “unrelated” meant that they were not “part of a single transaction”; conversely, to describe them as “part of a single transaction” meant they were not “unrelated”. The two inquiries were two sides of the same coin: at [69].

(5) Any mitigation of the aggregate sentence by virtue of the totality principle should be justified not as a bulk discount on account of multiple offending, but rather as a recognition of the fact that an aggregation resulting in a longer sentence was going to carry a compounding effect that bore more than a linear relation to the cumulative and overall criminality of the case. A further rationale was that an extremely long aggregate sentence could induce a feeling of hopelessness that destroyed all prospects of the offender's rehabilitation and reintegration: at [77] and [78].

(6) The totality principle should ordinarily apply with greater force in cases that involved longer aggregate sentences. This would include situations, for instance, where the offender was to be sentenced for numerous offences in a single sitting of the court, or where the individual sentences were themselves relatively lengthy: at [79].

(7) The central concern of the rule against double counting was that a sentencing factor should be given only its due weight in the sentencing analysis and nothing more. The rule applied to both aggravating and mitigating factors, and it could arise in cases involving single offences as it did in cases involving multiple offending. However, it did not necessarily violate the rule if a mitigating factor was again taken into account in the application of the totality principle even though it had been given effect to elsewhere in the sentencing analysis: at [91] to [93].

(8) On the facts, there was no reason to suggest that the DJ had erred in imposing the individual sentences that he arrived at: at [101].

(9) The first and second offences were plainly separate and unrelated: they took place on different occasions about six months apart, at different locations, and involved different victims. There was no unity of purpose or design between the offences. In such circumstances, the sentences should presumptively have been ordered to run consecutively: at [102].

(10) The DJ's reasons for not ordering the sentences to run consecutively did not stand up to scrutiny. Amongst other things, the accused's attempts at self-improvement during his RT stint preceded the commission of the present offences and thus lost much of their probative value as indicators of future potential. Further, the DJ's observation about the accused's purported “decrease in rate of offending” was wrong in law. Reoffending must, in principle and as a matter of policy, be considered aggravating, whatever the number of charges brought: at [103] to [105].

(11) There was no double counting of the aggravating factors because the true basis for running the sentences consecutively was the fact that the offences were separate and unrelated: at [107].

(12) A strict addition of the two individual sentences would derive an aggregate sentence of five and a half years' imprisonment and nine strokes of the cane. Having regard to the totality principle, an aggregate custodial sentence of four and a half years' imprisonment would be appropriate in light of the overall criminality presented: at [108].

[Observation: The fact that a “co-offender” (in the loose sense of the term) had been issued a warning was not an indicator of the co-offender's guilt or degree of culpability, and therefore could not be used as the basis to calibrate the severity of the offender's judicially determined sentence on account of the principle of parity: at [115].]

Case(s) referred to

ADF v PP [2010] 1 SLR 874 (refd)

Chang Kar Meng v PP [2017] 2 SLR 68 (refd)

Chong Han Rui v PP [2016] SGHC 25 (refd)

Chua Whye Woon v PP [2016] SGHC 189 (distd)

Goh Lee Yin v PP [2006] 1 SLR(R) 530; [2008] 1 SLR 530 (distd)

Guay Seng Tiong Nickson v PP [2016] 3 SLR 1079 (refd)

Loo Pei Xiang Alan v PP [2015] 5 SLR 500 (refd)

Mill v R (1988) 166 CLR 59 (refd)

Mohamed Shouffee bin Adam v PP [2014] 2 SLR 998 (folld)

Omar Zreika v R [2016] NSWCCA 177 (refd)

Poh Boon Kiat v PP [2014] 4 SLR 892 (refd)

PP v AUB [2015] SGHC 166 (refd)

PP v Chua Whye Woon [2016] SGDC 83 (distd)

PP v Goh Lee Yin [2005] SGDC 179 (refd)

PP v Law Aik Meng [2007] 2 SLR(R) 814; [2007] 2 SLR 814 (refd)

PP v Nelson Jeyaraj s/o Chandran [2011] 2 SLR 1130 (refd)

PP v Sakthikanesh s/o Chidambaram [2017] 5 SLR 707 (refd)

R v Clinch (1994) 72 A Crim R 301 (refd)

R v Clinton John Colson (1999) 73 SASR 407 (refd)

R v MAK [2006] NSWCCA 381 (folld)

R v Smith (1983) 32 SASR 219 (refd)

Seng Foo Building Construction Pte Ltd v PP [2017] 3 SLR 201 (refd)

Wham Kwok Han Jolovan v AG [2016] 1 SLR 1370 (folld)

Facts

The accused pleaded guilty to two charges in the District Court. The first offence was for voluntarily causing hurt by dangerous weapons or means under s 324 of the Penal Code (Cap 224, 2008 Rev Ed) (“PC”). The accused assaulted the victim with a knife and cut him on the right cheek. The injury left a permanent scar on the victim's face. The second offence was for rioting under s 147 of the PC. The accused, while on bail for having committed the first offence, relied on his status as the older friend of his companions and actively encouraged them to confront and assault a different victim. During the assault, the accused was the most aggressive of the assailants and continued to attack the victim even after he had fallen onto the ground.

The accused was traced for violence-related offences and had committed the first offence under s 324 of the PC within four months of his release from reformative training (“RT”).

The district judge below (“DJ”) agreed with the Prosecution's position as regards the appropriate individual sentences, but, contrary to the Prosecution's submission, ordered the sentences to run concurrently yielding an aggregate sentence of three and a half years' imprisonment and nine strokes of the cane. Amongst other things, the DJ reasoned that concurrent sentences were justified because the accused had sought to improve himself while he was undergoing RT, and had seen a “decrease in rate of offending” from his antecedents.

The Prosecution appealed, arguing primarily that the DJ should have ordered the individual sentences to run consecutively as the offences were unrelated. The Defence submitted that the sentence imposed should not be disturbed because, amongst other reasons, there was no requirement at law for consecutive sentences to be imposed, and to order the sentences to run consecutively would contravene the rule against double counting of aggravating factors.

Legislation referred to

Children and Young Person's Act (Cap 38, 2001 Rev Ed) s 7(a)

Criminal Procedure Code (Cap 68, 2012 Rev Ed) ss 307(1), 307(2), 318, 322, 322(1)

Enlistment Act (Cap 93, 2001 Rev Ed)

Misuse of Drugs Act (Cap 185, 2008 Rev Ed)

Moneylenders Act (Cap 188, 2010 Rev Ed) ss 28(2)(a), 28(3)(b)(i)

Penal Code (Cap 224, 2008 Rev Ed) ss 147, 304A(b), 324, 376(2)(a), 380

Women's Charter (Cap 353, 2009 Rev Ed) Pt XI

Sarah Shi and Tan Wen Hsien...

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