18 July 2006

On Deterrent Sentences

ST July 18, 2006
Deterrent sentence need not mean long jail term

By Crime Correspondent, K.C. Vijayan

A HIGH Court judge has made a case for shorter, rather than longer, deterrent jail terms for offenders who are unlikely to offend again.

Justice V.K. Rajah made the point when he explained the grounds for his decision to cut the jail term of businessman Tan Kay Beng, 41, from 33 months to three months plus a $1,000 fine for theft and criminal intimidation.

Tan, who has a small business in traditional Chinese religious paraphernalia, was convicted of theft and criminal intimidation last December.

District Judge Roy Neighbour dealt him 12 months for the theft and 21 months for criminal intimidation, with the two sentences to run concurrently.

[Mr Wang's note: Trust the Straits Times to mess this up. 12 + 21 = 33. The sentences run CONSECUTIVELY. not CONCURRENTLY]

The case gained added notice when it became the first criminal appeal from the district court since Chief Justice Chan Sek Keong took office in April. But it was inappropriate for CJ Chan to hear the appeal because he was the Attorney-General at the time the case was prosecuted in the district court.

Justice Rajah acknowledged that while a jail term was 'clearly and undeniably' justified, it had to be meted in such a way as to be fair to the man and to take public interest into account.

He said Tan was not likely to return to criminal activity, given that he was a happily married family man running a small business that depended on his physical presence and know-how.

The judge added: 'The public does not need to be protected from him. His conduct should be denounced without destroying his business and family life. He should be given an opportunity to pick up the pieces.'

Justice Rajah added that the courts should not use deterrence to justify long jail terms when dealing with those unlikely to become repeat offenders, unless there was a clear and compelling need.

He noted that even the public prosecutor had not defended or justified the one-year jail term for theft when it came up for appeal; he had in fact said the term would have been more apt for criminal intimidation.

Instead of a jail term for theft, Justice Rajah imposed a $1,000 fine, and the jail time for criminal intimidation was cut to three months.

The judge ruled that the district judge had 'paid little heed' to the sentencing guidelines in a 'misguided attempt to impose severely deterrent sentences on Tan'.

Association of Criminal Lawyers president Subhas Anandan, contacted yesterday, lauded the High Court's approach in the case. He said: 'They are saying deterrence is not the same or does not mean a longer jail term. You can achieve the same with a shorter term but it must be linked to the circumstances of the case, the background and character of the offender.'

We don't know what Kay Beng stole and how he stole it, but DJ Roy Neighbour seems to have gone really wrong here. VK Rajah describes Roy Neighbour's sentencing as "misguided", which is a very strong word for one judge to use on another judge. Normally an appellate judge would just say something vague and polite like "My dear Honorable Brother Seems to Have Erred Somewhat".

The DPP even refused to defend the appeal (in other words, he showed up in court, said "Hi" to everyone and then told the judge, "That's all I have to say"). This shows that the DPP thinks that Roy Neighbour's sentencing was very misguided too. The DPP felt that the accused really deserved a lighter sentence and so decided, in the appellate court, to do a "kelong" by shutting up and saying nothing.

WC2002-USA-POR-BAIA-GOAL
"Oh, it's okay. I don't mind."


The reduction in sentence speaks for itself - from 33 months in jail down to $1,000 fine and 3 months in jail. A huge reduction. It is probably fair to say that VK Rajah thinks that Roy Neighbour is, ummmm, not so very clever.

This case does seem to represent an interesting new development in the law, but it also seems to me that the Straits Times has done a very bad job at explaining. But first, let me explain what deterrent sentences are all about.

In criminal jurisprudence, there are two kinds of deterrence. One is called specific deterrence and the other is called general deterrence. To achieve either effect, you impose an extra-heavy sentence.

Specific deterrence is to deter a particular person from committing an offence again. This is relevant especially in cases where the person is a recalcitrant repeat offender - for example, he has already had several previous convictions for the same kind of offence.

General deterrence is to send a message to the general public that a particular kind of crime is viewed as very wrong and thereby deter would-be offenders from committing such crimes. This can be relevant where crime rates for a particular offence are on the rise, or if the public needs to be made aware of the seriousness of a "new" kind of crime (for example, computer hacking or collecting fees for sham marriages).

Now a judge can impose a deterrent sentence with specific deterrence in mind, or general deterrence in mind, or both in mind at the same time. It all depends on the facts of the case.

An example of the kind of case where specific deterrence might be relevant but general deterrence would be irrelevant is where the offender repeatedly commits a particular kind of fairly uncommon crime which others would not (for example, he repeatedly pees in inappropriate public places).

An example of the kind of case where general deterrence might be relevant but specific deterrence would be irrelevant is a case where a housewife leaves a flower pot on her high-rise balcony, the pot drops down due to strong wind, and it smashes someone's head down below. The housewife, duly traumatised, will probably avoid leaving things on her balcony for the rest of her life. But the judge might impose a general deterrent sentence anyway to educate the rest of Singapore about the dangers of such behaviour.

Now, back to the case. What's the new development? In the first sentence of the article, the Straits Times explains it as follows:

A HIGH Court judge has made a case for shorter, rather than longer, deterrent jail terms for offenders who are unlikely to offend again.
This is a poor, and wrong explanation. VK Rajah does not think that shorter, deterrent sentences are more appropriate under certain circumstances. That's because relative to the seriousness of the crime, a short sentence has no deterrent value (whether specific or general). So the Straits Times sentence does not even make any sense. In fact the title of the article is also misguided - "Deterrent sentence need not mean long jail term".

The really relevant part of VK Rajah's judgment is this:
The judge added: 'The public does not need to be protected from him. His conduct should be denounced without destroying his business and family life. He should be given an opportunity to pick up the pieces.'

Justice Rajah added that the courts should not use deterrence to justify long jail terms when dealing with those unlikely to become repeat offenders, unless there was a clear and compelling need.
What VK Rajah is really saying to Roy Neighbour is this:

"If for the sake of general deterrence you want to make an example out of somebody, please pick your somebody carefully. Be fair - don't impose a massively heavy sentence on a Relatively Okay Guy like Tan Kay Beng just for the sake of sending a message to the public.

Wait for another case, for a Really, Really Bad Guy to show up, before you impose a heavy sentence for the sake of general deterrence."

Or to put it another way, VK Rajah simply did not agree that Tan Kay Beng should get a general deterrent sentence.

+++++++++
Technorati: ; ; .

21 comments:

Anonymous said...

aiyah Mr Wang not everyone is as clever as you mah.

Straits Times reporter not lawyer. Roy Neighbour lawyer trained but cannot fine the right sentence. High Court judge got everything right but cannot get the reporter to report correctly.

Sigh such is the dilemma of living here.

It is also the general culture and attitudes of Singaporean mentality esp in civil service - "Mai Heim Air Sai lah", sukak sukak like rojak, no one spot it ok lah, someone spot it quick lay low lor, if not then act blur, got chance shine then quick sar-ka. No one see then big bully.

job is to report then write something, right or wrong also never mind, so long it is Not all wrong!

Well spotted Mr Wang!

Anonymous said...

Mr Wang u better watch your tongue. If Roy Neighbour knows who you are, he may use general deterrence and specific deterrence on you plus a life sentence which is "subjectively" the most appropriate. :PP

Mr Wang Says So said...

I know him actually. He was a DPP when I was a DPP. Now he is a judge and I have moved into the investment banking industry.

Anonymous said...

aiyoh what happened in the promotion process and the HR guidelines on promotion?

as screwed up as the newspaper report?

Anonymous said...

yr blog is cute! I am so in love with u. Can we meet for coffee?

Alan said...

General deterrence at least from my perspective is a nonsense, because you can never prove that it works. Partly because in my view the criminal doesn't consider the consequences of his/her actions, either because it's carried out at the spur of the moment or because there so spaced out they can't make a rational choice or because the're plain stupid.

Specific deterrence is another matter altogether. I won't bother with rehabilitiation - that doesn't seem to exisit in Sg esp with drug offences.

ivan said...

http://www.cambridge.org/catalogue/catalogue.asp?isbn=0511128312
very good book on punishment.

It's interesting that if what you say holds true, then the Singapore judiciary holds a deterrence based argument for punishment. Which then again is no surprise as most utilitarians hold the same view.

Question is, in the case of general deterrence, in order to achieve that, would it

1) treat a person as a mere means, not an individual and as an ends by himself.

2) assume that the wider public has the same disposition, circumstances and mentality as the offender, thus to impose a sentence on the offender would deter the wider public from committing the same offence.

Further questions, if the courts and indeed the gov views punishments as purely utilitarian ie. deterrence based. Wouldn't it justify actually not carrying out sentences, but merely informing the public that the sentence has been carried out. Or indeed the conviction of innocents, or fabrication of the conviction of one Mr Jone Doe, to keep the populace in check and toeing the line. whilst unsustainable in the long run, surely it holds true if practised in a infrequently.


I applaud VK Rajah's sentencing for it seems to me, it was done under retributionist considerations. Whilst at pre-violation (of offences) stages the threat of punishment has deterrence effect. Post violation is an entire ball game as the offence has been committed, any deterrence is aimed at the general public or preventing the individual from committing the same offence again (or as your say specific deterrence). I reject general deterrence as i find it unethical (see questions raised above). Thus if an offender is unlikely to commit an offence again, he only needs to set right his wrong, and not pay greatly so as the gov can make an example out of him.

porcorosso said...

Jurisprudence was not one of the subjects Porcorosso took as part of his degree but his take on this is that it was probably not a suitable case for a deterrent sentence at all - if the defendent is unlikely to offend again, then a specific deterrent is useless and if the public has no need to be warned off this kind of offence, then there is no need for a general deterrent either. My, was the preceding sentence not a long sentence? Final word - deterrence does not work. All is retribution.

Mappleice said...

It is not about specific deterrence or general deterrence. It is really all about justification for a sentence made.

Courts cannot act arbitrarily. If a criminal has to be punished, it must be based on the right reasons in accordance with the law.

The problem is in justifying the sentence correctly.

General deterrence and specific deterrence is just a means towards acheiving an end.

It is just like if you want to make sure you get paid $1.50 for an apple, you got to state good reasons why it is worth that amount.

Same with the 'excuses' which judges need to find for penalising someone - for e.g punishing someone base on public policy reasons.

Where the law affords a wider scope for a judge to maneouvre in delivering a sentence, that is one of the most convenient reasons to give - public policy reasons, general deterrence etc.

A good judge would make sure that his judgements are supported by good and fair reasons whilst, a judge who simply needs to execute its duty will give an apparent reason that would pull wool over the layman's eyes without requiring too much understanding of the law.

So dun bother to think about whether we should or should not have general deterrence ... haha.

If we want to make sure that specific deterrence is effective, simply just hang all third time offenders since the third attempt speaks for itself - that the punishments for the second time round (based on specific deterrence)does not work!

Heretic_Guy said...
This comment has been removed by a blog administrator.
Heretic_Guy said...

my initial grasp of the report was as as proclaimed in the heading. but ST have always had very misleading headlines on local news.

moomooman said...
This comment has been removed by a blog administrator.
moomooman said...

If I'm caught littering and they put me in jail for 3 days... it's enough to deter me from touching paper for the rest of my life.

AA said...

The case gained added notice when it became the first criminal appeal from the district court since Chief Justice Chan Sek Keong took office in April. But it was inappropriate for CJ Chan to hear the appeal because he was the Attorney-General at the time the case was prosecuted in the district court.

Wow, this would never have happened under the ex-CJ. I'm thinking of the final, last-ditch, eve-of-execution appeal of Vignes Mourthi case in particular.

Anonymous said...

My english not powerful, but i learn something from this story...may not be your lesson learn, but mine.

CJ, DJ, DPP, AG, SG..... all but human, not perfect, at the end still make mistakes. Imagine if the poor fellow did not appeal or somehow the "next" button is pressed, the poor fellow will go to jail for 33 months.

In this case is jail, imagine if the offence is death penalty type, then the fellow suay suay kana hang, then how???

I wonder how many people kana jail or hang for something they did not do, at wrong place at wrong time or becuase of human mistake?

John Riemann Soong said...

That is what juries are for.

Conveniently, the PAP banned juries following independence.

It's almost like Bolshevik power consolidation.

ivan said...

Porcorosso:

"Final word - deterrence does not work. All is retribution."

I'm inclined to agree, but before an offence is committed surely the fear of imposition of punishment would (to a certain extent) deter it's commission (though it might not be adequate).

Mappleice:

"It is not about specific deterrence or general deterrence. It is really all about justification for a sentence made."

Either you're placing the cart before the horse, or you're suggesting that punishment is a farce in Sg.

If it's the former, then i can only say, sentences are imposed (in both senses, by legislature and by the judiciary) based on the principles of either deterrence or retribution (or a combination of both). To suggest that only after picking a figure out of thin air, does a judge or legislator then seek to justify his conclusion (a teleological approach), would suggest that the exercise of 'reason' and hence the act of punishment itself is a farce; if so, i'd be wary of tarring the judiciary/legislature with such a broad brush.

"If we want to make sure that specific deterrence is effective, simply just hang all third time offenders since the third attempt speaks for itself - that the punishments for the second time round (based on specific deterrence)does not work!"

Deterrence based arguments are mainly utilitarian in nature, and hence it would be possible or justifiable to do as such, only if the net gain outweighs the possible losses (simplistically speaking); could you guarantee that there would be no public unrest or international backlash? One might look towards the Taliban rule in Afgan, where the punishment of theft was the amputation of a hand, there one could leave a gold bar on the streets and return to find it as all feared of being accused of being a thief. If you do think Sg is similar and thus could impose such measures, then perhaps consider Kant's categorical imperatives (2nd formulation esp).

Frankie said...

Chief Justice Chan Sek Keong taking office in April was the best news to be heard for quite a while. Finally, Singapore can look forward to something worthy of First World status - a better, fairer system of justice that does not need to correlate with the kind of breakfast the judge had on any on day.

Anonymous said...

ivan,

The 'backlash' against the Taleban government in Afghanistan was not a result of their harsh laws.

Anonymous said...

"If you do think Sg is similar and thus could impose such measures, then perhaps consider Kant's categorical imperatives (2nd formulation esp)."

My dear Ivan, don't get too excited and caught up with the technicalities of the law and have some humour .... sigh.

I think you did not understand the point that Mappleice was making in the para below:

"If we want to make sure that specific deterrence is effective, simply just hang all third time offenders since the third attempt speaks for itself - that the punishments for the second time round (based on specific deterrence)does not work!"

Mapple is just saying that where a judge were to be given wide discretion in giving its judgement, the consequences could be unthinkable including hanging a third time offender based on the silly reasoning of specific deterrence.

Basically Singaporeans trust in the high quality of the judiciary and so judges should also ensure that they live up to Singaporeans' expectations and not give us a scare.

I think, that is what Mapple is saying.

Mapple is not saying whether general or specific deterrence is a good reason to give nor that the retribution theory is wrong.

I think Mapple is saying, whatever the reasoning, if it is sound and produces a fair result then that is fine. However, it is unthinkable if in trying to reach a conclusion, strange illogical reasons are just plugged from the air to fill up the gap.

This has nothing to do with "tarring the judiciary/legislature with such a broad brush". The comments were fair comments made in relation to the specific facts of the case.

ivan said...

anon:

pardon my poor phrasing or paragraphing.

"The 'backlash' against the Taleban government in Afghanistan was not a result of their harsh laws."

i meant that one could look to the taliban (or taleban) as an example of a place tt employed harsh punishments, i further said "If you do think Sg is similar and thus could impose such measures", implying that it worked in Afgan, but i feel it's unlikely to work in sg.

i'm confused by your second posting. Firstly, i arrived at my conclusion from Mappleice's opening paragraph.

Even if taken in context with the subsequent paragraphs "General deterrence and specific deterrence is just a means towards acheiving an end.", "Same with the 'excuses' which judges need to find for penalising someone", "Where the law affords a wider scope for a judge to maneouvre in delivering a sentence, that is one of the most convenient reasons to give".

My issue (perhaps utopian) is this, often judges are thrown brickbats when they give undeserved sentences; in this rare instance when a Justice sentences fairly, backing his judgement with sound theory, instead of pouring cold water, we should applaud and encourage such justice.

"whatever the reasoning, if it is sound and produces a fair result then that is fine."

If you know not the reason, how would you know the result is a fair and defensible one? If it's by gut feeling, or the feel of the ground, would it seem like a dodgy way to conclude a sentence is fair? Surely innately we all have a conception of what punishment is, and why it exists, thus what might be fair to me might be unfair to you as we believe in different rationales for punishment.

by the way, i believe in a unified theory of punishment, i both reject and accept the retribution and utilitarian theory.