Public Prosecutor v Vilashini d/o Nallan Rajanderan

• Jurisdiction: Singapore
• Judge: Shawn Ho
• Judgment Date: 22 May 2018
• Neutral Citation: [2018] SGDC 142
• Court: District Court (Singapore)
• Docket Number: DAC 941950-17 & Ors
• Year: 2018
• Published date: 20 June 2018
• Hearing Date: 22 May 2018
• Plaintiff Counsel: DPP Selene Yap
• Defendant Counsel: Ms Nicole Lee (Allen & Gledhill LLP)
• Subject Matter: Criminal Law,Offences,Road Traffic Act,Drink Driving
• Citation: [2018] SGDC 142

District Judge Shawn Ho: INTRODUCTION

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

Harm and culpability are the pillars on which we place the cross-beams of aggravating and mitigating factors. Facts are the cornerstone of a case. The highly fact-specific nature of traffic offences means that the highest level of attention must be afforded to the facts and circumstances of each case.¹

When personal injury is visited upon a victim or damage wrought as a result of the offender’s drink driving under s 67(1)(b) of the Road Traffic Act (“RTA”), save in an exceptional category of cases,² the starting point for sentencing such a person is a custodial sentence. In other words, the prima facie position is that the custodial threshold has been crossed and an imprisonment term should be imposed unless the mitigating factors warrant a departure from this starting point.

In the present case, there were no cogent reasons to depart from the starting point of a custodial sentence. The Accused pleaded guilty to 2 charges: (i) drink driving under s 67(1)(b) of the RTA and (ii) giving false information to a public servant under s 182 of the Penal Code.

Failing her handheld breathalyser test, she was arrested and escorted to the Traffic Police Department for a Breath Evidential Analyser test, which revealed that she had 53 µg of alcohol in every 100 ml of breath. She consented to another three charges being taken into consideration for sentencing purposes.³

Simply put, after drinking about one bottle of ‘Jack Daniel’s’ liquor, the Accused went on a joyride. She lost control of the motor car – causing chain collisions involving seven vehicles in an open-air carpark – and wrought moderate damage on them.⁴ She also failed to comply with the conditions of her provisional driving licence. Thereafter, she lied to the police that she had not driven the motor car.

All things considered, I sentenced the Accused to 1 week’s imprisonment and 18 months’ driving disqualification for all vehicle classes for the drink driving offence.⁵ She was fined $4,000 for the offence under s 182 of the Penal Code.

In the final analysis, the safety of law-abiding road users is of first importance.⁶ No appeal has been lodged. I now set out my reasons.

THE LAW Analytical Framework

The analytical framework comprises (i) harm,⁷ (ii) culpability,⁸ (iii) aggravating factors and (iv) mitigating factors (“the Analytical Framework”).⁹

The Analytical Framework for traffic offences may be curated as follows:

At the outset, 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)].¹⁰

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. The categories may not always be watertight. 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].

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.¹¹

I pause here to note that a slight 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. 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.

Examples of these cases include Vasentha d/o Joseph v Public Prosecutor [2015] SGHC 197 at [43]-[48] (drug trafficking)¹² and Suventher Shanmugam v Public Prosecutor [2017] SGCA 25 at [29]-[30] (drug importation).¹³

For completeness, in Public Prosecutor v Yeo Ek Boon Jeffrey [2017] SGHC 306 at [52], [57] and [60],¹⁴ 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.

The second observation is that the eclectic ensemble of cases adopting the Analytical Framework is testament to its versatility: Maid Abuse 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. 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 69.¹⁵ Aggravated outrage of modesty under s 354(2) of the Penal Code: GBR v Public Prosecutor [2017] SGHC 296 at [28].¹⁶ Drug importation under s 7 of the Misuse of Drugs Act: Suventher Shanmugam v Public Prosecutor [2017] SGCA 25. Section 28(b) read with s 29(a) of the Prevention of Corruption Act: Seng Hwee Kwang v Public Prosecutor.¹⁷ Offences under the Workplace Safety and Health Act: Public Prosecutor v GS Engineering & Construction Corp [2016] SGHC 276.¹⁸ 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. Sections 140, 146, and 148 of the Women’s Charter: Poh Boon Kiat v Public Prosecutor [2014] SGHC 186.¹⁹

This is unsurprising as the two principal parameters which a sentencing court would generally have regard to in evaluating the seriousness of a crime are: (a) the harm caused by the offence, and (b) the offender’s culpability.²⁰ (See also Andrew Ashworth, Sentencing and Criminal Justice (6th Edition, 2015, Cambridge University Press) at [4.3] and [4.5])

The contours of the Analytical Framework were explored in Koh Thiam Huat, Aw Tai Hock, and Stansilas Fabian Kester for offences under ss. 64(1) and 67(1)(b) of the RTA.²¹

Interplay of Harm and Culpability

In Stansilas Fabian Kester, the High Court set out indicative sentencing ranges, calibrated according to the degree of harm caused and the offender’s culpability.²² For easy reference, these indicative sentencing ranges are summarised below:

The High Court in Stansilas Fabian Kester also helpfully stated the following points in relation to the degrees of harm (personal injury/ property damage)²³ and culpability (alcohol level/ dangerous driving behaviour):²⁴

Harm		Culpability
Slight	Slight or moderate property damage and/or slight physical injury characterised by no hospitalisation or medical leave	Low	Low alcohol level and no evidence of dangerous driving behaviour
Moderate	Serious property damage and/or moderate personal injury characterised by hospitalisation or medical leave but no fractures or permanent injuries	Medium	Moderate to high alcohol level or dangerous driving behaviour
Serious	Serious personal injury usually involving fractures, including injuries which are permanent in nature and/or which necessitate significant surgical procedures	High	High alcohol level and dangerous driving behaviour
Very Serious	Loss of limb, sight or hearing or life; or paralysis

As regards whether there is dangerous driving behaviour, the factors that affect culpability would generally include:²⁵ The Manner of Driving. This assesses how dangerous the driving was and the extent of danger to road users posed by the offender’s conduct.²⁶ The Circumstances of Driving. The circumstances surrounding the incident that may have increased the danger to road users during the incident.²⁷ The Offender’s Reasons for Driving. The offender’s reasons or motivations for driving.²⁸

Edwin Suse Nathen Overlaid with Stansilas Fabian Kester

In Stansilas Fabian Kester, an offender’s culpability is also categorised into Low (low alcohol level), Medium (moderate to high alcohol level), and High (high alcohol level).²⁹ While Stansilas Fabian Kester...