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.

"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.

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