Sentencing of Young Adult Offenders

Introduction

One of the most common questions I come across in my practice whenever I meet a young adult offender (someone 21 or above, but below ~30) is “Am I eligible for probation?”

The answer is always “It depends. First, we’ve got to see whether your specific offence(s) allow you to qualify for probation. But even if you qualify, it usually is truly exceptional rather than the norm.” I then usually describe the multitude of considerations a sentencing Court will have to deal with in dealing with a young adult offender. At the outset, while age is an important consideration, it never is the be-all and end all in such cases.

This is not just lawyerspeak or spiel to win a client over. Dealing with young adult offenders is a complex exercise, whether for the Prosecution, the Defence, or even, a judge. This article attempts to unpack the myriad of factors in sentencing young adult offenders.

At what age can someone be liable for a criminal offence?

Before we even go into the thorny issue of what it means to be an “adult” under the law, it should be made clear that pursuant to a 2020 amendment of the Penal Code (Cap 224, 2008 Rev Ed0 (“PC”), “nothing is [a criminal] offence which is done by a child under 10 years of age” (s 82 of the PC) Similarly, under s 83 of the PC, “nothing is an offence which is done by a child of or above 10 years and below 12, who has not attained maturity of understanding to judge the nature and consequence of his conduct on that occasions.”

The following hypotheticals illustrate the preceding paragraph:

• If, say, a 9-year-old helps himself to sweets from a supermarket, even if he knows it is wrong, no criminal liability attaches to this conduct – even if it would be regarded as theft under the PC.
• However, if he was 11-years-old and understands that helping himself to these sweets is wrong and that he should be paying for them, criminal liability does attach to his conduct.
• But what if he was 11-years-old but suffers from a mental condition and/or general lack of understanding taking sweets from the supermarket is wrong? In such a situation, what he did is arguably not an offence for the purposes of the PC.
• Curiously, what happens then if our sweet pilferer is 16-years-old but has been established to have a mental age of 9? Our Court of Appeal answered this question, pre-2020 amendment, that the relevant age we should be looking at is chronological age in establishing whether he would be criminally liable (Public Prosecutor v ASR [2019] 1 SLR 941).

So anyone 10 or above then. What about teenagers?

Briefly, under s 2(1) of the Children and Young Persons Act (Cap 38, 2001 Rev Ed) (“CYPA”), a “child” is a person below the age of 14 years. A “young person” is someone aged 14 years of age or older but below 16 years of age. Collectively, they are regarded as “juveniles” under the CYPA.

This is relevant insofar as under s 323 of the Criminal Procedure Code (Cap 68, 2012 Rev Ed) (“CPC”), even where juveniles are convicted of offences which attracts fine or imprisonment or both, they can be dealt with instead under the CYPA. For example, under s 37(2) of the CYPA, such offenders may be detained in a place of detention or a juvenile rehabilitation centre. There are also other sentencing options under the CYPA and possibly, for the matter to be dealt with by a Youth Court – but that is a topic for another day.

However, do note that the relevant age is not the age where the offence was committed but when the offender is finally sentenced. So for example, if an offender commits rape at 14, but is only sentenced when he is 16, he will not be treated as a juvenile.

What then is the “age of majority”?

The preceding discussion makes clear that the law will not regard a person as a juvenile, the moment he turns 16. However, this is where it gets a little hairy.

While the “age of majority” is made clear at common law to be 21 (Rai Bahadur Singh and another v Bank of India [1992] 3 SLR(R) 127], the position is not so straightforward under the criminal law, depending on the conduct in question and the relevant statutory provisions.

Some offences may not even be offences until a person reaches a certain age or falls below a certain age. For example, the Customs (Liquor Licensing) Regulations makes it an offence for anyone below the age of 18 to buy to attempt to buy liquor. However, pursuant to amendments to the Tobacco (Control of Advertisements and Sales Act), the minimum legal age for purchase, use, possession, sale and supply of tobacco products is now 20 as of 1 January 2020.

Also, do note that under s 314 of the CPC, no sentence of death can be passed against a person who committed the relevant offence below the age of 18. A court must instead sentence him to life imprisonment.

However, the general position is that a distinction is usually drawn between individuals who are 16 and over vis-à-vis those under 16. For those above 16, a further distinction is drawn between “young offenders” and “adult offenders.”

At what age then is someone considered an “adult offender” and what are the implications of this?

From a criminal law perspective, the starting point is that a “young offender” is a person aged 21 or under. Those above 21 are by default, therefore regarded as adults or individuals who have passed the “age of majority.”

The significance of this is that the law takes a “presumptive view that with young offenders… the primary sentencing consideration is rehabilitation” (Public Prosecutor v Lim Cheng Ji Alvin [2017] 5 SLR 671 (“Alvin Lim”). The view is that such young offenders are more likely to be effectively rehabilitated, as opposed to adult offenders (Sim Wen Yi Ernest v PP [2016] 5 SLR 207).

The Court in Alvin Lim (a 2017 case) went so far as to say that for adult offenders, especially in the context of serious offences (such as drug offences), “deterrence is the dominant consideration.” In the context of drug consumption, a custodial term is almost always warranted. This position has become even more entrenched as a result of amendments to the Misuse of Drugs Act (Cap 185, 2008 Rev Ed) (“Drugs Act”) on 1 April 2019. An individual who consumes drugs shall on a first conviction, unless offered Drug Rehabilitation, be sentenced to imprisonment for a term of not less than one year, pursuant to s 8 read with s 33A(3A) of the Drugs Act.

So does this mean that when the Court sentences adult offenders, regardless of how young they are, the focus will be on deterrence or retribution?

The key takeaway from the above section is that the stance taken by a Court is “presumptive” or only a starting point. Rehabilitation of a young adult offender can be the operative concern if “the particular offender concerned happens to demonstrate an extremely strong propensity for reform or there exist other exceptional circumstances” (A Karthik v Public Prosecutor [2018] 5 SLR 1289 (“Karthik”).

In Karthik’s case, the High Court, on appeal, sentenced a 22-year-old offender found guilty of two counts of abetting the cheating of two motor insurance companies to 24 months’ supervised probation. Similarly, in Praveen s/o Krishnan v Public Prosecutor [2018] 3 SLR 1300 (“Praveen”), the offender succeeded on appeal in obtaining a sentence of probation. However, do note that in both cases, the offences were committed when the offenders were 17-years-old, even if they were sentenced much later.

The latest word on the matter is the now (in)famous case of Public Prosecutor v Siow Kai Yuan Terence [2020] SGHC 82 (“Terence Siow”), involving a 22-year-old student from a tertiary institution who molested a lady on a train. At first instance, the offender who was by then over 23-years-old was sentenced to probation. This caused much furor among Singapore society, with (unfounded) allegations of elitism and heavy focus on the offender’s educational background being thrown about. On appeal by the prosecution, the sentence of probation was overturned, with the offender sentenced to two weeks’ imprisonment instead.

The Honourable High Court in Terence Siow was clear that both the High Court and the learned judge at first instance had focused on legal considerations only. While the outcomes arrived at were different, this was “influenced in part by the additional evidence that was before [the High Court] but not before [the first instance judge]; in part, by the different in which specific points had been put by the Prosecution… and in part by the analytical process that was applied.”

The major takeaway from Terence Siow, however, is how a Court ascertains whether a young adult offender has demonstrated an extremely strong propensity for reform:

• Step 1: Has the offender demonstrated a positive desire to change since the commission of the offences?
• Step 2: Are there conditions in the offender’s life that are conducive to helping her turn over a new leaf?
• Step 3: If after considering Step 1 and 2, the Court comes to the provisional view that an offender has strong propensity for reform, the Court will consider risk factors in respect of the offender.

Some factors a Court will consider are the offender’s own resolve to change, remorse, non-reoffending, whether he has taken active steps to leave his errant ways behind, strong familial support, positive avenues to channel energy etc.

So are you saying Terence Siow’s first instance case was not only decided because of the offender’s academic qualifications?

The short answer to that, as recognised by the High Court, is “yes.”

As stated by the High Court, “[The first instance judge] was certainly not suggesting that undergraduates were a privileged class immune from the usual consequences visited upon those who break the law. Unfortunately, that is how some have interpreted her decision. This is regrettable, to say the least, because there are few things more corrosive of the legitimacy of the judiciary, upon which the justice system is founded, than the perception that it is stacked in favour of any individual or class. And, that is especially regrettable, where, as is the case here, it is wholly without basis.”

Academic qualifications are just one indicator of rehabilitative capacity, and all in the justice system should do well to remember this.

As noted by the Honourable Justice of Appeal Steven Chong in Praveen:

“… [S]cholastic mediocrity or the fact that the offender is no longer in school should not be reasons by themselves to conclude that the offender is incapable of rehabilitation. Other avenues, such as vocational training or employment, would also be pertinent in assessing the offender’s prospect for reform.”

So how does this all matter for sentencing?

Whether a Court deems that rehabilitation (versus other considerations such as deterrence and/or retribution) is the dominant consideration will have a significant impact on both the type of sentence and length/severity of such a sentence.

For example, if rehabilitation is the dominant consideration, this may increase the likelihood of probation or reformative training being available to an offender. That goes towards type of sentence.

Similarly, even if jail cannot be ruled out, a shorter jail term may be warranted. That goes towards the length and/or severity of the sentence.

The key is always therefore whether the need to rehabilitate can be established and whether this need can displace considerations of deterrence and/or retribution. As stated apropos in Terence Siow, a Court must consider “whether, despite the offender’s extremely strong propensity for reform, it nonetheless remains appropriate in all the circumstances to retain the emphasis on deterrence” – taking into account the gravity of the offence in question.

Practically, when then is a young adult offender eligible for probation and/or reformative training, and not jail?

Reformative training is only available to individuals below 21-years-old, per s 305 of the CPC. Therefore, for adult offenders, reformative training is definitely out.

In respect to probation, the position under the law in respect of legal (statutory) requirements is as follows:

• Technically, if a person of any age is convicted of an offence (not being an offence the sentence for which is fixed by law), he can still be liable for probation under s 5(1) of the Probation of Offenders Act (Cap 252, 1985 Rev Ed) (“Probation Act”).
• However, the above position is further circumscribed by the provison in the 2nd half of s 5(1) of the Probation Act which states that where a person is convicted of an offence for which a specified minimum sentence or mandatory minimum sentence of imprisonment or fine or caning is prescribed by law, a Court can only make an order for probation if:

1. The offender has attained the age of 16 but has not attained the age of 21 at the time of his conviction; and
2. Has not been previously convicted of any such offence referred to in this proviso…

** Do note that probation is exceptional for adult offenders and the law is clear that a Court will only generally call for a probation pre-sentencing report for non-adult offenders (Karthik). **

I am really confused. What is a sentence “fixed by law”? What is a “specified minimum sentence”? What is a “mandatory minimum sentence?” What does this all mean?

Do not worry. Even lawyers are very confused by this and s 5(1) of the Probation Act has been the subject of much litigation (Court battles).

Mandatory Minimum Sentence

A “mandatory minimum sentence” is a sentence where a minimum quantum for a particular type of sentence is prescribed and the imposition of that type of sentence is mandatory.

For example, anyone who commits extortion under s 384 of the Penal Code “shall be punished with imprisonment of not less than 2 years… and with caning.” Therefore, jail and caning are prescribed here and both must be imposed on an offender, making this a mandatory minimum sentence.

Specified Minimum Sentence

A “specified minimum sentence” is one where the Court has discretion on the type of punishment but not over the minimum quantum (amount or length), should it decide to impose that type of offence.

For example, if a person convicted “shall be liable on conviction to a fine of not less than $2,000 but not exceeding twenty thousand dollars or to imprisonment for a term not exceeding three years or to both”, this is a “specified minimum sentence.” A Court has the discretion to sentence an offender to jail, a fine, or to both – but should it choose to impose a fine, it has to impose a fine of $2,000 at least.

Sentences Fixed by Law

A sentence “fixed by law” is one where a Court has absolutely no discretion as to the type of sentence (which is mandatory) and quantum.

The classic example would be the offence of murder under s 300(a) read with s 302(1) of the PC where “whoever commits murder within the meaning of section 300(a) shall be punished with death.” In this case, a judge has no discretion as to the type of punishment (death) and since one only has a single life, no discretion as to quantum either.

Similarly, if an offence is punishable with “a fine of $1,000”, a judge has no choice but to sentence an offender to a fine and the fine amount is always fixed at $1,000.

Case Study

As mentioned above, the Drugs Act was amended on 1 April 2019. In particular, s 33(3A) which punishes first-time drug consumption under s 8(b) states:

“Any person convicted… on or after the date of commencement of section 16 of the Misuse of Drugs (Amendment) Act 2019 shall on conviction be punished with imprisonment for a term of not less than one year but not more than 10 years and shall also be liable to a fine not exceeding $20,000…”

In this case, the writer’s interpretation is that (a) an offender must be punished with jail of at least one year and (b) can also possibly be fined up to $20,000 (with no minimum fine component). This is therefore a mandatory minimum sentence because a type of sentence (jail) must be imposed and there is a minimum length of jail (one year).

Permutations

Eligible for Probation

• Offender is under 21. Sentence is not “fixed by law.” She is eligible for probation.
• Offender is 21 or above. Sentence is not “fixed by law”, and is not punishable with a “mandatory minimum sentence” or “specified minimum sentence.” Offender has not been convicted of such offences before. She is technically eligible for probation.

Not Eligible for Probation

• Offender is 21 or above. While sentence is not “fixed by law”, it is punishable with a “mandatory minimum sentence” or “specified minimum sentence.” She is not eligible for probation.
• Offender is 21 or above. Sentence is not “fixed by law.” Neither is it punishable with a “mandatory minimum sentence” or “specified minimum sentence.” However, offender has previous convictions for such offences. She is not eligible for probation

I’m a young adult offender who neither qualifies for Reformative Training nor Probation. So this means I’m guaranteed to be sentenced to imprisonment, right?

While each case turns on its own facts, there are other sentencing options available to young adult offenders, even where probation and reformative training are unavailable.

Such options come in the form of community based sentencing and may even remain available for serious offences.

Under s 348 of the CPC, offenders above sixteen-years-old may be sentenced to a Short Detention Order (“SDO”) of up to fourteen (14) days. For avoidance of doubt, SDOs are served in jail and act as a restriction of liberty of any offender. They can be imposed together with a palette of other community based sentencing options. The High Court has held they carry a punitive element and are able capable of serving to deter (Public Prosecutor v Teo Chang Heng [2018] 3 SLR 1163.

In short, where probation may not be suitable but imprisonment too harsh, SDOs allow offenders to experience the ‘short, sharp, shock’ of prison life.

Public Prosecutor v Abdul Qayyum bin Abdul Razak and another appeal [2020] SGHC 57

On the same day Terence Siow’s sentence of probation was overturned and he was sentenced to two weeks’ jail, another appeal was heard before the Honourable Chief Justice Sundaresh Menon (“CJ Menon”).

In this case, the offender was 21 at the time of sentencing. He had joined a group of friends to attack a victim and was charged with being part of an unlawful assembly, a serious offence under s 143 of the PC.

At first instance, the offender was sentenced to one-month imprisonment. On appeal, this sentence was overturned and he was instead sentenced to a Day Reporting Order for 12 months and a Community Service Order of 120 hours, to be served at a Mosque. On top of this, to express the need for deterrence, a Short Detention Order of seven (7) days was imposed – despite the learned prosecutor seeking a sentence of not less than three months’ imprisonment.

The Honourable CJ Menon’s reasoning, in the writer’s view, was just, as it was merciful. The judgment serves as a good example, again in the writer’s view, where a Court has chosen to sentence an offender, but not to condemn him.

The Honourable CJ Menon focused on the fact (a) the offender had kept regular employment and endeavoured to improve his employment status, (b) that he had a supportive wife, and (c) that he had secured a rental flat to provide a stable home for his young family. As noted by the Honourable Chief Justice, the offender “was not beyond hope.” He further noted there was a “real chance for [the offender] to break out of the cycle of bad behaviour.”

At the same time, the Short Detention Order recognised the seriousness of the offence and ensured the offender “experience[d] a taste of the loss of liberty that would be the consequence if he fails to change his life.”

As noted in Terence Siow by the same Honourable CJ Menon, the offender in this case “was not a graduate, but a young offender raising four children and struggling to turn his life around.”

Similarly, in more recent times, a university student who strangled his ex-girlfriend when she declined to revive their relationship was sentenced to a Short Detention Order for 12 days, a Day Reporting Order for five months with counseling, and ordered to complete 80 hours of community service.

Whilst there was much public furore over the decision, the writer is of the view that the sentence arrived at in this case should not be judged only on the basis that the offender was a university student, but should be measured against the general principles expounded upon in this article.

Conclusion

Young adult offenders are in the unenviable position of not being juveniles under the law. They may also not be treated as young offenders, depending on their age. The transition to adult life may be made more difficult by a criminal conviction, a jail term, and the permanent scar of a criminal record. At the same time, justice requires that those who do wrong be punished and for retribution to be obtained for the victims of offences. In the words of Oscar Wilde, “… [E]very saint has a past and every sinner has a future.”

Judges, too, are therefore in an unenviable position of having to balance many competing considerations in sentencing young adult offenders. Said judges themselves are tried daily in the Courts of public scrutiny – especially in an age where social media is prevalent and judgment is passed almost instantaneously. It is therefore heartening that our judiciary takes a principled approach where rehabilitation is balanced against countervailing considerations in such cases – regardless of what the public thinks or says.