“No one is Above The Law- Probation Sentencing Guidelines in the Case of PP v Terence Siow Kai Yuan”

Article by Emelia Kwa, an associate of OTP Law Corporation.

When the initial judgment of PP v Terence Siow Kai Yuan [2019] SGMC 69 was released, the case took Singapore’s social media by storm.

In case you needed an introduction, the case involved a 22-year-old undergraduate who outraged the modesty of his victim while on the MRT. He was sentenced to 21 months of supervised probation, subject to a number of conditions: 1) remaining indoors from 11pm to 6am, 2) performing 150 hours of community service, 3) attending an offence-specific treatment programme and 4) his parents were to execute a $5,000 bond to ensure his good behaviour during probation.

Singaporeans were up in arms, because of how the accused was regarded as having a strong potential for reform. Many felt that this was unjustified, as his “strong potential” seemed to be primarily based on his good academic results.

The case has since gone on appeal (Public Prosecutor v Siow Kai Yuan Terence [2020] SGHC 82). This article gives a brief summary of what constitutes a “strong propensity for reform”, as explained by the High Court.

 Why was a “strong propensity for reform” important?

 There are 4 different principles underlying each sentence given: deterrence, rehabilitation, retribution and prevention. The type of sentence given is affected by which of these principles is given primacy.

In many instances, deterrence serves as the main sentencing consideration. However, whether this plays out in every case very much depends on the facts.

For probation to be given, rehabilitation had to be the main sentencing consideration.

Naturally, for deterrence to be displaced, there needs to be an extremely strong propensity for reform. To evaluate this, the High Court gave a three-limbed framework that may be used:

1.   The Court should consider whether the offender has demonstrated a positive desire to change since the commission of the offence(s); 

2.   The Court should consider whether there are conditions in the offender’s life that are conducive to helping him turn over a new leaf;

3.   If, after considering the first 2 limb, the court comes to a provisional view that the offender has displayed an extremely strong propensity for reform, the court should then consider, in light of the risk factors presented whether there are reasons to revisit the finding of such a high capacity for reform.

A positive desire to change

The following non-exhaustive factors indicate a positive desire to change:

a)   Evidence of genuine remorse.

This basically shows the offender’s self-awareness and recognition of the wrongfulness of his actions. Such remorse may take different forms, such as pleading guilty at the earliest available opportunity, or an acknowledgment of the seriousness of the offence(s) by co-operating fully with the police and admitting their guilt; or by disclosing criminal activities that go beyond what he was presently charged for.

b)   Taking active steps post-offence to leave errant ways behind.

For example, the offender may have stopped associating with their negative peers, take the initiative to seek counselling, or if they are schooling, improve their attendance and work in school.

c)   Compliance with and amenability to rehabilitative measure(s).

Basically, whether the offender has co-operated and committed to conditions of probation, counselling programmes, or urine tests, etc. (if applicable).

d)   Offender has not re-offended since his offence.

The significance of this factor depends on the length of period between the time of offence and the time the offender is eventually sentenced. The Court cited a case where the offender had committed the offences in 2012 but was only charged more than 5 years later in 2017. During that period, the offender in question had found meaningful employment, obtained glowing reviews while in National Service and remained crime-free. The Court there felt that this showed his commitment to changing his ways.

e)   The index offence(s) were out of character.

The genuineness and potential efficacy of an offender’s desire to change can also be evaluated against his past conduct. Here, the offender’s lack of antecedents is helpful but the significance of this also varies from case to case. Importantly, the lack of previous offences should not be regarded as a factor for reform as a matter of course.

Conditions conducive to turning a new leaf

The following non-exhaustive factors are helpful:

a)   Strong familial support.

The Court cited several previous cases where the offender’s family was very supportive of the offender’s rehabilitative efforts and took initiative to supervise him. Where the offender has strong familial bonds, this suggested that they would provide a significant degree of supervision. It also helps where family members, especially parents, were prepared to take responsibility to guide their children onto the right path.

b)   Availability of external support.

This could take the form of romantic partners, medical professionals, a religious community or the probation offence.

c)   External sources of motivation for reform

For example, one case involved an offender with a family of 4 children. This propelled him to want to reform himself; the offender there had post-offence, found a stable job with better pay and a rental flat for his family.

d)   Availability of positive avenues to channel energy

This was relevant as it would decrease the chances of a young offender associating with negative peers, and give him a structured environment. This would help instil discipline and give him positive guidance.

Risk factors

This would include the offender’s association with negative peers, or the presence of bad habits e.g. drug use or dependence.  

Ultimately, it is obvious that having an “extremely strong propensity for reform” is very fact-sensitive. In the final step in the analysis, the Court must always consider the gravity of the offence as well, as despite the offender’s extremely strong propensity for reform, it could remain the case that deterrence should remain the main drive behind sentencing.  

Conclusion

In giving a detailed look at the many factors involved in determining suitability for reform, the High Court case clarifies the public’s perception of how such a sentence is given. It also assures the public that no, undergraduates or good students are not immune from the law. In fact, unless a link can be drawn between an offender’s great academic achievements and his rehabilitative capacity, his academic excellence in and of itself would be irrelevant