MELANIE HONG
First Year NUS Law, Deputy Juris Editor, SLR

Some light has finally been shed on the otherwise murky arena of prosecutorial discretion- we now know what the Attorney-General Professor Walter Woon regards as crucial to meting out sentences.

As Professor Woon highlighted, the concept of justice is a fluid one. Between geographical boundaries and with the passing of time, it morphs to take on different appearances and what was considered just fifty years ago may no longer be considered as such in the modern context. With the notion of justice kept in the forefront of our minds, ensuring that the punishment meted out is befitting of the crime committed is a problem as old as justice itself – a problem that Professor Woon addressed at the 22^nd Singapore Law Review Lecture held on 19^th September 2008 at the Supreme Court Viewing Gallery attended by a 200-strong crowd of judges, legal practitioners and students.

Governing the passing of sentences in Singapore, according to him, are the four principles of retribution, deterrence, protection and rehabilitation.

There are two aspects to retribution: punishment and denunciation. Punishment, simply put, is when someone who has broken the law pays for his misconduct while denunciation is the signal sent to the society that this sort of behaviour is unacceptable. Thus, the more unacceptable the behaviour is, the harsher the sentence. Strict sentencing, if as harsh as the Japanese when it came to looters were during World War II, would also serve as a strong deterrent. Yet, the effectiveness of this, as Professor Woon noted, is limited when it comes to impulse crimes unless punishment is so harsh that potential offenders are induced to hold their baser instincts in check. The principle of protection is that if the offender is likely to commit another offence and pose as a threat to society, he should be put away. For this, preventive detention is one of the alternatives to a prison term and it usually applies to an incorrigible offender who shows no remorse and re-offends within a short time of his release.

Nonetheless, harsh punishments are not the only way to reduce crime and tThe alternative presents itself in the form of rehabilitation, which is meant to ensure that the offender does not commit such a crime again by making him more responsible. This is usually the main consideration when dealing with young offenders and probation sentences ensure that they are kept off the streets and prevented from mixing with wrong company and engaging in unlawful activities.

Even normal terms of imprisonment now have an element of rehabilitation, as highlighted by Professor Woon. Ironically, this militates against short sentences. During one particular Yellow Ribbon Project concert, a senior prison officer remarked that the minimum period for effective rehabilitation was 6 months and a jail term shorter than that had practically no rehabilitative value. Professor Woon thus commented in his address that one should not automatically assume that a lighter sentence is necessarily better if the accused is capable of reform.

When applying these principles in sentencing, one has to consider which one is paramount. If the primary consideration is deterrence, a sentence will usually be more severe and if protection is important, the charge will usually carry a custodial sentence.

One also has to distinguish between facts that affect the culpability of the accused and those that do not. In the case of a gang robbery involving hurt, factors that affect the culpability of the accused may be that he was not the ringleader and merely took orders or that he did not actually hit the victim. Factors involving the remorse of the accused or the fact that he is the sole breadwinner of the family do not affect culpability and are a plea for judicial mercy.  One of the most common factors affecting culpability is mental impairment but as Professor Won noted, it is often difficult to determine how much the impairment should reduce the subject’s culpability. Opinion differs from psychiatrist to psychiatrist and there is also the problem of how much one can rely on their reports. All these considerations allow the formulation of a sentence that is appropriate and at the end of the trial the prosecution will make a submission sentence highlighting to the judge the principles that apply, as well as any aggravating or mitigating factors. After the judgement is delivered, the prosecution will not appeal as a matter of course even if they feel that the sentence is too lenient. An appeal is only made if the prosecution felt that the wrong principles were taken into account or the principles were wrongly applied.

After all, the aim of sentencing is not to mete out the harshest punishment but to ensure that justice is served as best as possible.