Public Prosecutor v Vikneswaren Ramu and another [2018] SGHC 138

Introduction

The Accused, Vikneswaren Ramu, pleaded guilty to a single charge, as follows:

The charge carried a minimum sentence of 20 years’ imprisonment and 15 strokes, and a maximum sentence of 30 years’ imprisonment or life imprisonment, with 15 strokes.

Parthiban was similarly charged, and pleaded guilty. He was sentenced to imprisonment of 22 years and 15 strokes. Shahriman was convicted separately on his plea of guilt to a similar charge, but with a higher amount of drugs, ie, not less than 14.99 grams, and was sentenced to 25 years’ imprisonment and 15 strokes of the cane.

Facts

The statement of facts reads in material parts:

The SOF recounted the examination of drugs that were found; it suffices to note that the two packets were found to contain not less than 904.8 grams of a granular or powdery substance in total, which on analysis was found to contain not less than 15.02 grams of diamorphine, a Class ‘A’ controlled drug listed in the First Schedule of the Misuse of Drugs Act (Cap 185, 2008 Rev Ed) (“MDA”). The SOF then continued:

Having found that both Accused understood the charge, and the consequences of pleading guilty to the charge, and on his admission to the statement of facts, I convicted both of them.

Mitigation

In joint mitigation with Parthiban, counsel for both Accused argued for the minimum sentence of 20 years and 15 strokes of the cane to be imposed on the Accused, as he was not the one who had lent money to Shahriman in the first place, and neither was he the one who had proposed that Shahriman deliver drugs.

Counsel also sought to distinguish Shahriman’s sentence of 25 years’ imprisonment as Shahriman pleaded guilty to a charge of importation of not less than 14.99 grams of diamorphine.

As to the mitigating factors, it was noted that the Accused had no prior convictions. He had been working as a lorry driver since 2011, before he was arrested. The Accused was about to go through customary rites of marriage when he was arrested; he had married his wife in a civil ceremony. They had adopted a child who was 3 years old at the time of the hearing. He had lost his father when he was just 15 years old, and has an aged mother, who the Accused hoped to spend time with after serving his sentence.

Counsel relied on the decision in Suventher Shunmugam v Public Prosecutor [2017] 2 SLR 115 (“Suventher Shanmugam”). He also sought a backdating of the start of imprisonment to 7 May 2016, the date of his first remand.

Prosecution Submissions

The Prosecution sought a sentence of between 20 to 22 years’ imprisonment for the Accused and Parthiban. Applying the sentencing benchmark, in respect of offences of importing not less than 10 grams of diamorphine, the appropriate sentencing range was between 20 to 22 years’ imprisonment, with a minimum of 15 strokes of the cane.

The Prosecution referred to the Court of Appeal’s guidance in Suventher Shunmugam, which laid down guidelines for the offence of importing cannabis, and indicated that the sentencing ranges could be adapted for use for other types of drugs, with the same sentencing ranges. As the importation of 10 to 14.99 grams of diamorphine attracts a similar sentencing range as the importation of between 330 to 499.99 grams of cannabis, a similar range can be derived for diamorphine. Thus the Court of Appeal held, in Amin bin Abdullah v Public Prosecutor [2017] 5 SLR 904 (“Amin bin Abdullah”) at [100] that the sentencing range for importing between 10 to 11.5 grams of diamorphine was between 20 to 22 years’ imprisonment.

The Prosecution submitted, applying Vasentha d/o Joseph v Public Prosecutor [2015] 5 SLR 122, that the indicative starting sentence within the range was to be adjusted in line with the culpability of the accused persons, taking into account various factors such as involving others, being motivated by financial advantages, or directing or organising the drug trade on a commercial scale. Thereafter, the sentence would be adjusted to take into account aggravating and mitigating factors. On the facts here, the drug operations were submitted to be wide, involving at least two other persons beyond Shahriman, the Accused and Parthiban. Shahriman was also brought into the net because of his inability to pay money back to Parthiban, which meant that the accused had abused his position of influence over him.

Shahriman, the Prosecution noted, who was the actual courier bringing in the bundles, was sentenced to 25 years’ imprisonment. The Prosecution submitted that the culpability of Parthiban and the Accused was at least equal, if it did not exceed that of Shahriman. The two of them had played indispensable roles in the coordination of the delivery. Shahriman was also said to be dependent on the Accused and Parthiban as Shahriman updated them at each stage of the delivery.

The court’s decision

Taking into account the facts of the charge against each accused person, particularly the quantity of drugs specified in the charge, I imposed a sentence of 20 years and 6 months’ imprisonment, and 15 strokes of the cane on the Accused. Parthiban was sentenced to 22 years’ imprisonment and 15 strokes of the cane.

The Accused has filed an appeal against my decision on sentence. As Parthiban has not filed any appeal against my decision in respect of his case, I shall only deal with the analysis pertaining to the Accused’s sentence below.

Analysis

I accepted that the applicable sentencing approach for diamorphine was the guidance laid down by the Court of Appeal in Suventher Shanmugam and adapted in Amin bin Abdullah. The first step is to determine the indicative range based on the quantity of the drug as contained in the charge, and then to consider adjustments to take into account culpability, and the presence of aggravating or mitigating factors: Suventher Shanmugam at [28]. I noted further the guidance of the Court of Appeal in Suventher Shanmugam at [36]-[37] that the fact that the actual quantity seized was higher than the quantity stated in the charge would not, in itself, justify the imposition of a higher than minimum sentence.

Sentencing range

Both the Prosecution and the Defence were of the same mind as to the relevant range applicable to the Accused, as well as to Parthiban. The starting range was constrained by the amount of drugs specified to be involved, ie, not less than 10 grams, which put the Accused and Parthiban at the lower end of the spectrum. This meant that the Accused was placed at a lower starting point as compared to Shahriman, who pleaded guilty to a charge involving not less than 14.99 grams of diamorphine.

Starting point

The starting point of the sentencing range is determined by the quantity of drugs as specified in the charge, ie, not less than 10 grams. While it was apparent that larger quantities were involved, and that the charge against Shahriman involved a larger amount, it is largely the Prosecution’s prerogative to prefer the charge that it considers appropriate in the circumstances, and the court would not impose a higher sentence simply for this, as has been noted above. As submitted by the parties, this case thus fell within the lower band laid down by the Court of Appeal in Amin bin Abdullah at [100].

As the quantity involved was at the floor of the range, the starting point would be 20 years’ imprisonment and 15 strokes of the cane

Culpability, aggravating and mitigating factors

While Counsel for the Accused argued that his role was minimal and less than that of Parthiban, it was apparent from the statement of facts that the Accused played a critical role in the commission of the offence as he was clearly the primary communications conduit with Shahriman. It may be that Parthiban has greater culpability ultimately as he was the one who drew in Shahriman into trafficking in the first place, the Accused’s role was not negligible and could not be ignored.

As against that, there were minimal mitigating factors present in respect of the Accused. His family situation, whether the old age of his mother, or the fact that he had a young child, could not assist him. These were matters irrelevant to the question of culpability, or harm caused by the offence. Neither were they so out of the ordinary that judicial mercy was to be extended.

In light of his role, and in the absence of any substantive mitigating favour, I was of the view that a sentence of imprisonment above the minimum of 20 years was justified. Nonetheless, the Accused’ role was ultimately less than that of Parthiban who drew Shahriman in. Weighing all of these factors, a sentence of 20 years and 6 months’ imprisonment, and 15 strokes of the cane was commensurate with his culpability and the relevant factors present in this case.

Sentence imposed

A sentence of 20 years and 6 months’ imprisonment, and 15 strokes of the cane was thus imposed on the Accused. It is to run from the date of his first remand, that is 7 May 2016.