Regardless of the criminal justice model predominant in any particular criminal
justice system, arguably the fundamental aims of the ideal criminal justice
system include freedom from crime, protection of human rights and
maintenance of the rule of law.
There appears to be a fundamental tension between freedom from crime
(crime control) and protection of human rights and maintenance of the rule of
law (due process) as summarised by Professor Herbert Packer
Due process model
The primary objective of this model is to prevent any innocent accused person
from being wrongly subjected to the criminal process or being convicted.
The rationale is that humans have failings through genuine errors, abuse and
bias. Eg. police extracting confessions by illegitimate means shows and
abuse of power.
Characteristics of the due process model are as follows
1) Emphasis on individual rights, civil liberties
2) “primarily concerned with procedural and evidentiary rules that are
designed to prevent miscarriages of justice to an accused”; rules
designed to impede carrying along of the accused through the criminal
process
3) Protection of the integrity of the legal system is accorded high priority.
Thus any breach of procedural rules is an abuse of process which
should terminate prosecution
4) A conviction can be reversed if the appellate court feels that it is not
safe to convict him
5) Conviction demands proof beyond all doubt
6) Presumption of innocence of the accused prioritised.
Crime control model
The primary objective of this model is the repression of criminal conduct and
is arguably the most important function to be performed by the criminal
process.
The rationale is to avoid the breakdown of public-order, leading to law-abiding
citizens being victimised by law-breakers due to the failure of enforcement
agencies and the prosecution to control crime.
Characteristics of the crime control model are as follows
1) demands a high rate of conviction
2) places considerable trust in the efficiency and reliability of
administrative procedures in discovering the facts of the crime.
Eg.enforcement agencies such as the police should have extensive
powers.
3) Cases must be processed quickly and with finality
4) Application of the presumption of factual guilt which raises efficiency of
“application of administrative and prosecutorial expertise, primarily
those of state investigators and prosecutors”
The sentencing procedure in Singapore is set out in s 230(x) of the Criminal
Procedure Code which states that if the court finds the accused guilty, it must
record a conviction and comply with procedure in s 228. S 228 relates to
hearing of addresses on sentence and mitigation plea. Thereafter, the court
shall pass sentence “according to the law” In PP v Tan Fook Sum, Chief
Justice (CJ) Yong Pung How held that sentence according to law means that
the sentence must not only be within the ambit of the punishable section but it
must also be assessed and passed in accordance with established judicial
principles. In Chua Tiong Tiong, CJ Yong clarified that the aforementioned
judicial principles include retribution, deterrence, prevention and rehabiliation.
In PP v Kwong Kok Hin, it was held that sentencing overall must protect
society by defending communitarian values including preservation of morality,
protection of the person, preservation of public peace and order, respect for
institutions and preservation of the state’s wider interests. However, that did
not mean that public interest is a separate sentencing consideration. Rather
public interest is satisfied through applying various sentencing principles.
Therefore, it appears that court’s decision on which sentencing principles to
apply is subject to public considerations on the whole.
Retribution
The retributive principle denotes that punishment must reflect and befit the
seriousness of the crime committed by the offender.
In Tan Fook Sum, CJ Yong held that there are two aspects of retribution,
namely, punishment of just deserts and denunciation of the criminal conduct
as social signifier. With regards to the latter, the courts appear to dismissed
“denunciation” per se as a distinct sentencing principle, or as a component of
the retributive principle. This was enunciated by V K Rajah JA in PP v Kwong
Kok Hing. In relation to the former, he mentioned that crime should be
punished to achieve justice for the victim in relation to the accused.
Furthermore, for punishments to be effective, the public and the victim must
also perceive justice to have been achieved. Under the retributive principle
such “justice” has been defined as “proportionality” CJ Yong held that
proportionality had to be assesed based on intuition on the facts of each case.
Deterrence
The deterrence principle requires that punishment must be sufficiently severe
to scare off rational people from breaking the law. There are two aspects of
deterrence, namely, general deterrence and specific deterrence. In relation to
the former, in Law Aik Meng, it was held that general deterrence is aimed at
educating and deterring other like-minded members of the general public by
making an example of a particular offender. With regards to specific
deterrence, PP v Loqmanul Hakin bin Buang held that such deterrence is
aimed at reduction of the possibility of recidivism in a particular offender. In
Loqmanul Hakin bin Buang, it was held that the test for specific deterrence to
arise as a sentencing consideration to increase sentence would be whether a
more severe sanction would discourage the accused from partaking again in
any similar act, if not any future offending behaviour. Another consideration is
whether the severe sanction would reduce the propensity of the accused to
risk further punisment through the commission of another crime. This test in
Loqmanuel was held to be subjective.
General and specific deterrence considerations are relevant when that are
premeditated crimes (Law Aik Meng), crimes are hard to detect (PP v Lee
Cheow Loong Charles) and crimes are difficult to apprehend (Law Aik Meng).
Deterrence is generally not relevant where the crime is irrational, where the
crime is one of impulse and where the crime is committed by a mentally
disordered offender.
It is arguable as to whether deterrence is the most dominant choice of
setencing principle in Singapore. In Law Aik Meng, it was opined that the
present crime control model premised on a judicious and focused application
of deterrence coupled with the effective apprehension of offenders has
worked well for Singapore. While deterrence has seemingly emerged as the
dominant choice of sentencing principle, it is submitted that the choice made
is subject to the circumstances of each case.
Prevention
The preventive principle requires that punishment must incapacitate the
offender to the extent that the public are sufficiently protected from the harm
inflicted by him. Furthermore, putting the offender away for a longer duration
of time is only way to keep the public safe.
Custodial options which give effect to the preventive principle include
corrective training, reformative training and preventive detention.
The test for whether prevention should arise as a a sentencing principle
consideration to increase sentence is whether the accused is likely to
reoffend.
Rehabilitative principle
In PP v Mok Ping Wuen Maurice, in applying the rehabilitative principle, CJ
Yong held that punishment should be on the lower end of the sentencing
range to limit the corruptng influence of a prison environment over the young
offender. Furthermore, it should avoid or ameliorate the negative effects of
labelling and stigmatisation of young offenders and dispense compassion to
young offenders.
The test for rehabilitiation to arise as a sentencing consideration to reduce
sentence is whether the offender is a youth aged 21 or below (Mok Ping
Wuen Maurice)
However, in PP v Goh Lee Yin, it was held the offender need not necessarily
be aged 21 or below, particularly if he or she demonstrates an extremely
strong propensity for reform and/or there are exceptional circumstances
warranting the grant of probation.
In PP v Muhammad Nuzaihan bin Kamal Luddin, it was held that there is no
prima facie presumption that rehabilitation must be applicable as a sentencing
consideration when accused is a young offender
In Mok Ping Wuen Maurice, it was that it is ultimately an issue of a balance
between public interest and the interest of the offender.
The rehabilitative principle has been criticised as sentencing that are too short
may have no rehabilitive value. Moreover, rehabiliation through probation
sentence ineffective for computer related offences since public interest
requires that these offenders must be put away in a place where they have no
access to computers; i.e. prison (Muhammad Nuraizan)