Criminal proceedings seek to answer 2 questions – is the accused guilty of the offence, and what sentence does he or she deserve? We have covered the criminal trial process in respect of the first question (up to the point an accused person is convicted of the charge/s he faces) in a separate article.
This article seeks to explain the process of sentencing in criminal proceedings (the second question) once the Court has ruled that the accused is indeed guilty of the offence and is convicted for it.
An accused person is convicted (found by the Court to be guilty of the offence in question) in 2 situations:
- The accused pleads guilty
- The charges are read out to the accused, and the accused pleads guilty. Thereafter the Statement of Facts are read out to him. The accused then admits to the facts and is convicted.
- If the accused disagrees with some of the facts, the Court may stand down the case to allow the Defence and the Prosecution to resolve the disagreement. If the disagreement is not resolved and the accused still does not admit to some facts, the plea of guilt is not accepted and the matter proceeds to trial. If the disagreement is resolved and all facts are admitted, the accused is convicted of the offence.
- The accused does not plead guilty. He is found guilty only after a full criminal trial.
What then follows the conviction is the sentencing process in criminal proceedings.
We shall cover the 7 steps common to the sentencing process in criminal courts in Singapore. We shall also cover the topic of Newton Hearings briefly. These 8 steps/topics covered in this article are as follows:
- Charges Taken into Consideration (TIC charges)
- Antecedents
- Prosecution’s Submissions on the Appropriate Sentence
- Plea in Mitigation
- Prosecution’s Reply
- Pronouncement of Sentence
- Serving/Postponement of Sentence
- Newton Hearings
1. Charges Taken into Consideration (TIC charges)
Once the accused has been convicted, the Prosecution informs the Court whether there are other charges which they wish the Court to take into consideration for the purpose of sentencing. These charges are known as ‘TIC charges’.
TIC charges are charges which the prosecution did not proceed upon formally with a view to shortening the criminal litigation process and reducing the caseload of the criminal courts. TIC charges also offer an opportunity for the accused person to show his submission to the law – he usually indicates to the prosecution that he intends to plead guilty to some or all of the charges he faces. The prosecution then proceeds only on one or some of the charges against him and have the rest of the charges put on hold. When the TIC charges are read out and explained to him in court, he will be asked whether he admits to the TIC charges and whether he consents to have the TIC charges taken into consideration for the purposes of sentencing. If he agrees, this will have the effect of increasing the sentence meted out to him. If he does not agree, the prosecution reserves the right to proceed on the TIC charges separately. Although agreeing to TIC charges means a higher sentence, it is still less than the sentence the accused may receive if he does not admit it and the prosecution proceeds on the TIC charges separately.
For example, Julian faces 10 counts of theft charges. When Julian indicated that he wanted to plead guilty to the charges, the Prosecution decided to proceed only on 2 charges, with the other 8 charges taken into consideration for the purpose of sentencing. This means that Julian will only be convicted and sentenced on 2 charges, instead of all 10 charges. However, when submitting on the appropriate sentence to be imposed, the Prosecution will ask the Court to consider the fact that Julian has 8 other charges which are being taken into consideration for the purpose of sentencing.
The TIC charges will be explained to the accused person by the interpreter, after which the accused will be asked to indicate whether he admits to the TIC charges and consents to have these charges taken into consideration for the purpose of sentencing. If he refuses to do so, the Judge will not be able to take these charges into consideration and the prosecution may proceed to trial against the accused for the remaining charges.
2. Antecedents
Antecedents refer to the accused person’s previous criminal records. After the TIC charges have been dealt with, the Prosecution informs the Court of the accused person’s antecedents. The antecedents are presented and explained to the accused person and he will be asked to confirm if the antecedents are correct and accurate as described. If the accused person agrees, the hearing will move on to the next step of the Prosecution’s submissions on sentencing. Otherwise, the Prosecution must prove the criminal records through a Newton Hearing.
3. The Prosecution’s Submissions on Sentence
Once the antecedents have been dealt with, the Prosecution will address the Court and submits its proposals and arguments on sentencing based on sentencing precedents, benchmarks and guidelines.
4. Plea in Mitigation
After the Prosecution’s submissions on sentencing, the Defence will be asked to present its mitigation plea to the Court. A mitigation plea is the accused person’s opportunity to tell the Court why he deserves a lighter sentence and why he disagrees with the Prosecution’s recommendations and proposals on the right sentence to be meted out. The plea may be made to the Judge orally or in writing. However, it is always preferable to prepare and submit a written mitigation plea to the Judge before the hearing (a copy should also be given to the Prosecution) This affords the Court (and the Prosecution) an opportunity to consider carefully the facts and arguments made in your plea, and would also give it more time to do so.
In a separate article, we covered the factors which are commonly used by Defences in Singapore in mitigation pleas.
However, do take note that in some cases, the Defence or the accused raises certain facts or allegations in the mitigation plea which effectively mean that the accused does not agree to one or more elements of the charge. If the accused person does so, the Court is under a duty to declare that the accused person has actually qualified his guilty plea, in which case a conviction cannot be recorded. A conviction can only be recorded if all the elements of the charge have been successfully proven or admitted. If the Court declares that the accused person has indeed qualified his plea of guilt because of certain allegations or disputed facts present in the mitigation plea, the Court will make directions and orders for the matter to proceed to trial.
5. Prosecution’s Reply
After you have submitted your mitigation plea, the Prosecution will have a chance to reply.
6. Pronouncement of Sentence
After hearing all arguments by both the Prosecution and the Defence, the Court will decide on the most appropriate the Judge has heard from you and the Prosecution, he will consider and pronounce the appropriate sentence to be imposed. The pronouncement of the sentence may take place immediately after the mitigation plea is heard, or during a separate hearing later on for the Court to consider matters more carefully.
If the accused person is not satisfied with the sentence, he may file an appeal within 14 calendar days from the pronouncement of the sentence. More information on the Criminal Appeals Process may be found in a separate article.
7. Serving/Postponement of the Sentence
If a sentence of imprisonment is imposed on the accused person, he or she will have to serve the sentence immediately.
However, it is still possible, in some circumstances, to obtain a postponement or deferment of the sentence. Once the sentence has been pronounced by the Court, the accused person should inform the Court immediately of its request for postponement, with valid reasons. If the accused person is on bail, the bailor should be present and consent to the request for postponement.
The Prosecution will then be asked to respond to the postponement request. They have the right to consent or object to the request. Although the Prosecution may very well agree to the request, do take note that it is highly likely that the Prosecution will apply for bail to be imposed (if the accused is not already on bail) or apply for the existing bail to be increased (if the accused is already on bail). If the Court agrees with the Prosecution on bail or increased bail amounts and the accused is not able to raise bail, the sentence will commence immediately.
If the request for postponement is approved by the Court, please be mindful that the Court may also impose other conditions which the accused has to comply with.
Once the postponement period is over, the accused person must surrender to the Court, afterwhich sentence is served immediately.
8. Newton Hearing
A Newton Hearing is a special hearing which may be convened by the Court at any stage of the sentencing process when there is a dispute as to facts which may materially affect the sentence to be imposed on a person following his conviction. These disputes may occur in respect of conflicting specialist reports which would increase or reduce the blameworthiness of the accused person, a fact raised by the accused person in his mitigation plea which directly contradicts an element of the charge/s, or even the past criminal records of the accused person.
The process of a Newton Hearing is similar to that of a trial – the Prosecution and the Defence will call witnesses before closing submissions. At the end of the Newton Hearing, the Court will pronounce its decision on the disputed issue of fact. Once the decision has been made, the rest of the sentencing process is resumed.
Conclusion
The sentencing process in criminal proceedings may be the most important part of the proceedings. It is important for people in trouble with the law to be fully informed of the sentencing process. It may be even more crucial for them to engage a lawyer as soon as possible.
Even if you or a loved one intends to plead guilty to charges, an experienced criminal lawyer can help you secure a lighter sentence, especially by raising relevant factors in your mitigation plea and conducting the defence in a professional manner throughout the sentencing process. Here at IRB Law, we have a panel of criminal defence lawyers who are able to do just that in order to secure a lighter sentence.
Give us a call as soon as possible if you are in any trouble with the law. We’d like to help.
