Citation(2018) 30 SAcLJ 175
Published date01 December 2018
AuthorAmardeep SINGH s/o Gurcharan Singh LLB (Hons) (National University of Singapore), LLM (New York University), MSc Criminology and Criminal Justice (Oxon); Advocate and Solicitor (Singapore).
Date01 December 2018

Are the Guidelines in England and Wales a Useful Model?

At the Sentencing Conference of 2014, Singapore's Judge of Appeal Justice Chao Hick Tin announced that Singapore would adopt a system of guideline judgments to enhance consistency in sentencing. This article explores the model of guideline judgments and examines if it has achieved its objective. The article then evaluates the English system of sentencing guidelines and discusses whether Singapore would be better served in adopting the English model instead. The article concludes that Singapore should adopt the English system of guidelines because it produces greater consistency in sentencing and significantly enhances the public's confidence in Singapore's courts and its judges.

I. Introduction

1 Recent years have witnessed endeavours by legislatures and courts across various common law jurisdictions “to structure judicial discretion at sentencing”.1 These initiatives aim to foster greater consistency in sentencing and reduce unjustified disparities among

judges when sentencing offenders convicted of similar offences.2 In this regard, Singapore is no different. At the inaugural Sentencing Conference held in 2014, Chao Hick Tin JA announced that a sentencing council had been created in 2013.3 The Sentencing Council of Singapore (“SCS”) was established “to assist the State Courts in the exercise of their sentencing powers to achieve greater consistency and predictability in the sentences which they impose for similar offences by providing clearer guidance on sentencing and on sentencing methodologies”.4 After providing an assessment of the different models for structuring judicial discretion in sentencing, Chao JA stated that Singapore would adopt the system of guideline judgments issued by a special panel of three judges (“three-judge court”) to promote consistency in sentencing.5 However, Chao JA made it clear that SCS was not definitively opposed to reconsidering whether a system of sentencing guidelines might be better suited to promote consistency in sentencing in Singapore.6

2 This article takes up Chao JA's willingness to revisit the matter and explores whether a system of sentencing guidelines that exists in England and Wales (collectively referred to henceforth as “England” or “English” where appropriate) is better suited to promote consistency in sentencing in Singapore. This article focuses on the English model of sentencing guidelines for four reasons. First, the Singapore courts frequently refer to English cases and to the English sentencing guidelines in sentencing offenders.7 Through practice and the passage of

time, the Singapore judges are already familiar with the English style of and approach to sentencing. Second, SCS expressly considered the English sentencing guidelines in their deliberations about which model of structuring judicial sentencing discretion would be appropriate for Singapore. If SCS finds that the system of guideline judgments is inappropriate for Singapore, the alternative would be a system of sentencing guidelines. In this regard, SCS may prefer the English model of sentencing guidelines, as opposed to the American system of sentencing grids, due to Singapore's familiarity with the English sentencing jurisprudence which is increasingly premised on the English sentencing guidelines. Third, accompanying its 31 definitive guidelines, the Sentencing Council for England and Wales (“Sentencing Council”) has published many research reports assessing the impact of its definitive guidelines.8 There also exists substantial academic literature that assesses the impact of the English guidelines in promoting consistency in sentencing in England. The accumulated knowledge presented in the work of the Sentencing Council and in the academic literature would be extremely helpful in shaping the development of sentencing guidelines in Singapore based on the English model. The practical experience of the English judges would also be of significant assistance to SCS when it develops a system of sentencing guidelines for Singapore. Finally, it is also an opportune moment to examine this issue as the next Sentencing Conference is scheduled to be held in Singapore in October 2017, with consistency in sentencing featuring as one of the topics for discussion.9 It is hoped that this article serves as a meaningful contribution to the discussion of this important subject at the conference.
A. Overview of article

3 This article comprises four parts. The first part provides a brief overview of the sentencing approaches in Singapore and in England. This part also maps out the structure of the recently introduced system of guideline judgments and the progress of the Singapore High Court in promoting consistency in sentencing through this approach. The second part assesses the impact of the English sentencing guidelines in promoting consistency in sentencing. This part assesses the achievements of the English guidelines in promoting consistency in sentencing and highlights those areas where the impact of the guidelines remains limited or unassessed. Specifically, this part examines the English guidelines' limited impact in reducing the use of custodial sentences for female offenders and in reducing racial disparities in sentencing. The third part of the article then turns to the lessons which Singapore can draw from the English experience. In particular, it highlights the shortcomings of the English sentencing guidelines that SCS would need to address before emulating the English style of guidelines in Singapore. This part also analyses the possible reasons as to why SCS may be reluctant to adopt a system of guidelines in Singapore, beginning first with the reasons highlighted by Chao JA and followed by other reasons peculiar to Singapore.

4 This article concludes that SCS's proposal of using the three-judge court to issue guideline judgments is unlikely to enhance consistency in sentencing in Singapore. In contrast, the evidence demonstrates the positive impact of the English sentencing guidelines in promoting consistency in sentencing in England across the various categories of offences for which guidelines have been introduced.10 In light of the English experience, SCS should replace the system of guideline judgments with a system of sentencing guidelines if it is serious about its desire to enhance consistency in sentencing. At a principled level, such reform would strengthen Singapore's commitment towards ensuring open justice and upholding the rule of law,11 increasing “[the] public understanding of sentencing”12 and promoting the public's confidence in the Judiciary.

II. Overview of sentencing in Singapore and in England
A. Brief overview of criminal process in Singapore

5 In Singapore, the Criminal Procedure Code13 (“CPC”) is the main statutory instrument that governs the conduct of criminal proceedings. Column 7 in the First Schedule to the CPC determines whether a particular offence is triable in the Magistrate's, District or High Courts. The Magistrates' and District Courts collectively constitute the State Courts of Singapore.14 As most criminal offences in Singapore are triable in the State Courts, most criminal offenders are resultantly tried and sentenced in the State Courts. Due to the large volume of cases that are processed by the State Courts, SCS principally aims to provide guidance to the district judges and magistrates in the State Courts to improve the sentencing practices there.15

6 An offender who is tried in the State Courts can either elect to plead guilty or claim trial to the charges. When an offender elects to plead guilty, ss 227(1) and 227(2) of the CPC govern the conduct of the plead-guilty (“PG”) hearing. If an offender elects to claim trial, s 230(1) of the CPC governs the trial procedure. After the court finds the offender guilty and convicts him of the offence, the case proceeds to the sentencing phase of the proceedings.

(1) Sentencing approach in Singapore

7 Section 228 of the CPC specifies the procedure for sentencing an offender in both the PG and trial situations. It states:

Address on sentence, mitigation and sentence

228.—(1) On the conviction of the accused, the prosecution may where it thinks fit address the court on sentence.

(2) The address on sentence may include —

(a) the criminal records of the accused;

(b) any victim impact statement; and

(c) any relevant factors which may affect the sentence.

(3) The court must then hear any plea in mitigation of sentence by the accused and the prosecution has a right of reply.

(4) Where the court is satisfied that any matter raised in the plea in mitigation materially affects any legal condition required by law to constitute the offence charged, the court must reject the plea of guilty.

(5) After the court has heard the plea in mitigation, it may —

(a) at its discretion or on the application of the prosecution or the accused hear any evidence to determine the truth or otherwise of the matters raised before the court which may materially affect the sentence; and

(b) attach such weight to the matter raised as it considers appropriate after hearing the evidence.

(6) The court must then pass sentence according to law immediately or on such day as it thinks fit.

8 Section 228(6) directs the court to impose a “sentence according to law”. Here, “law” refers to the relevant statutory laws and any binding case precedents.16 The first of these statutory laws are the offence-creating statutes which prescribe the penalties for the offence in question.17 In Singapore, judges generally retain broad discretion to pass any sentence from a range of penalties that include fines, probation, imprisonment and community-based sentences except in those cases where the sentences are fixed by law, such as mandatory minimum sentences. The second of these statutory laws are those that stipulate the courts' sentencing powers.18 Here...

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