Why tie our judges' hands with mandatory sentences?

Mandatory sentences limit their ability to fit punishment to the crime

IN HIS maiden speech after being appointed, Chief Justice Chan Sek Keong said: "The strict enforcement of the criminal law has made Singapore a paradigm for law and order. There will be no let-up by the courts in this aspect of criminal justice."

So, those who surmise that the courts now use a lighter touch in sentencing criminals are off the mark.

Rather, the change is better traced to the Chief Justice's statement that "no litigant should be allowed to leave the courtroom with the conviction or feeling that he has not been given a fair or full hearing because it was done hurriedly".

With the efficiency of the criminal process in place, the judiciary "should now be confident enough to give greater emphasis to the basics of judicial decision-making without the recurrent fear of a resurgent backlog".

It is the translation of these words into practice that marks the new approach of the bench.

The balance has shifted from the imposition of standard sentences toward taking more time to consider what is appropriate in each particular case. Sometimes this considered approach will result in a lighter sentence, and sometimes not.

Indeed, just last week, a sex offender who had appealed against his conviction and sentence had the sentence of corrective training enhanced from six years to nine years.

With this more considered approach, an old bugbear has resurfaced to trouble the courts: Mandatory sentences. The prescription of mandatory sentences by the law ties the hands of judges, limiting their ability to fit the punishment to the crime.

In sentencing Constance Chee for culpable homicide recently, the Court had only two options: Ten years or life imprisonment. The law allowed no in-between options.

Said Justice V K Rajah: "Judges often have to choose between a rock and a hard place when resolving their colliding instincts in determining the appropriate sentence."

He went on to express his hope that Parliament would review the present position and endow the courts with more comprehensive and pragmatic sentencing powers.

With a judiciary much strengthened over the years, are mandatory sentences anachronistic?

Consider the case of Ridzuan Mohamad Hanafi. He stood before the court last week to be sentenced for drug trafficking — an offence with a five-year minimum mandatory imprisonment term. In a somewhat unprecedented move, the court sentenced him to probation instead.

Should the court have to choose between probation and a minimum five-year imprisonment term, with no in-between options?

Ridzuan's case shows that ironically, it is perfectly possible for the prescription of a mandatory minimum imprisonment term to lead to a lighter sentence (of probation) being imposed, because the court simply does not have the option of a short imprisonment term.

There is another reason for 20-year-old Ridzuan to count himself lucky — had he been a few months older, the court would have had no choice but to throw him in jail for five years. By law, only those under the age of 21 when convicted are eligible for probation, despite the prescribed mandatory minimum sentence.

Should a few months make such a big difference?

The judiciary has shown itself only too well able to achieve consistency in sentencing by adhering to internal guidelines. Is there still a need to tie judges' hands with mandatory sentences prescribed by law?

Achieving consistency by internal sentencing guidelines has the advantage of retaining flexibility for that exceptional case where the norm is not appropriate. As for the guidelines on sentencing themselves, the Chief Justice announced the appointment of a panel to review how current sentencing and bail guidelines can be further rationalised and improved.

In a society that is constantly evolving, the appropriate sentences for crimes also cannot be cast in stone. For example, a rampant crime may call for more stern punishment — but maybe not so once its frequency has abated.

I have always had doubts about the severity of the punishment dished out to those convicted of molest. Does a first offender really deserve the standard punishment of nine months' imprisonment and three strokes of the cane just because private parts are involved?

In a case last year, a 41-year-old man with a practically clean record was sentenced to 10 months' imprisonment for stroking the breast of the victim twice. After a night out drinking, he helped a friend home — where he molested the friend's wife.

He was rewarded with "two tight slaps" from the victim, after which he promptly apologised.

The Court found that the offence was not premeditated and probably only arose due to the confluence of circumstances which led to a spur-of-the-moment act by the offender.

I wonder how many women think he deserved a 10-month jail term, and all its consequences, for that moment of folly.

Sources and Relevant Links:

Today Online Why tie our judges' hands with the law? 20 october 2006

Today Online Free, yet faced with a mountain of debt 26 June 2006

Think Centre Think Centre: Reaffirms Call for Moratorium on executions 20 April 2005

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