Sentencing an offender is the last stage of the judicial process in a criminal case; it is the final part of the judicial opinion as to what should be done about the offender. The decision in each case as to what the sentence ought to be is often a difficult one to make because the court, in determining what is appropriate, has to take into account two principles, each equally valid, each equally important, yet often pulling the court in opposite directions. The first is that the punishment must fit the crime, and the second lies in the law’s affinity for consistency. The problem with the first lies in the conflicts between rival theories of punishment. Generally, crime precedes punishment (deterrent sentences are designed to impose punishment against crime in future). The problem with the desirability of consistency in sentencing is that the court is required to take into account all the circumstances of the case.
Enter Sentencing Principles in Singapore. This is an encyclopaedic reference book which is a repository of an impressive collection of case law on sentencing, all in 37 chapters. Although one might think that all this would be too much in any one book, the handiness of the volume alone makes this book an invaluable reference book. The form adopted by the author seemed to be the most practical one in view of the wide coverage of topics. The form is applied consistently through the book. The author stated the broadest rule on each point by selecting a quotation from a case that applied or referred to it. He then proceeded to set out various other cases that followed, expanded or deviated from that rule. The discerning reader may, however, feel uncomfortable with the liberal use of the word “principles”. Some statements, sensible and obvious have been elevated to the status of “principle”, for example, on the topic of “Sentencing Accomplices” in chapter 13, the author described the following statement as a “General Principle”: “Where two or more offenders are to be sentenced for participation in the same offence, their sentences should be the same, unless there is a relevant difference in their responsibility for the offence or their personal circumstances” [emphasis in original]. That might be unavoidable because the author was obviously keeping strictly to his selected format so as to avoid confusion from too many distinctions.
It is a pity that the format, and probably space, did not permit the author to make commentaries of his own to enlarge or add on to some of the judicial statements which would have benefited from explanation. For instance, on “aggravating factor”, under “Deliberation, Premeditation and Planning” in chapter 16, the author set out the statement, “It is well established that where an act is done after deliberation and with premeditation as opposed to the situation where it is done on the spur of the moment and ‘in hot blood’, that is an aggravating … circumstance”. This is an instance where it would be helpful to have a footnote on what distinguishes “deliberation and premeditation” from “intention”, and why a long period of deliberation amounts to an aggravating factor – that is, that the offender had the opportunity of cooling off, recanting, and regaining his senses, perhaps, and yet chose to commit the offence. Another point worthy of reflection is, why should deliberation be considered an aggravating factor, rather than to consider offences committed in “hot blood” as a mitigating factor. There are no straightforward answers but a footnote or two to indicate issues that could be taken up further would greatly enhance this book. The neutral stance taken by the author was essential to the overall function of the book as a reference and sourcebook. In this way, a questionable statement was able to attain the status of “principle” since the author probably felt that he was not at liberty to comment on it. In “Sentencing Objective”, under chapter 14 on “Sentencing Strict Liability Offences”, for example, the following passage was taken to be a general principle: “[T]he only objective for the most part that there could reasonably be behind sentencing for a strict liability offence is that the sentence be … retributive.” There appears to have been a mix up between “retributive” and “deterrent” in the decision cited. Retributive punishment is deserved punishment; hardly a reason for punishing strict liability offences where the offenders may sometimes not be deserving of punishment. Deterrence, which is utilitarian in nature, is a sentencing principle that finds its emphasis in a desired result, and is less concerned about desert or justification.
Some statements seem too broad and those too, would have benefitted from the author’s personal commentary. In “Offended Due to Ignorance of the Law” in chapter 18, the judicial statement selected, “[I]gnorance of the law can hardly be a mitigating factor”, required temperance. Ignorance of the law is no excuse for crime, but why could it not be a mitigating factor in some cases?
The comments above does not detract from the immense value that this book is to lawyers, judges, the academia, and anyone interested or involved in the criminal law. It has covered all the areas that one might need to know about the sentencing of an offender. It had provided the sources and pointed the way to further thinking on all the issues raised. The breadth and scope of the book are admirable, and it is likely that a place will be reserved for it on lawyers’ bookshelves. When the reader closes the book, he will find much to think about on the subject of sentencing an offender. Some will think of future crimes averted; some of the prisoner reformed; others of the victim’s cathartic release; and some, all of these things. As facts merge, blend, and disperse in the one case and the other, one learns that the ideal sentence is not easily identifiable. When facts interfere with hypothesis, judgment loses its certainty and accuracy; and we might feel compelled to reflect on John Garner’s questions: “What good comes out of criminal punishment? How does it help to make the world a better place?” (From his introduction to Hart’s Punishment and Responsibility (Oxford University Press, 2nd Ed, 2008)
THE HONOURABLE JUSTICE CHOO HAN TECK
SUPREME COURT OF SINGAPORE