Appeal against reformative training and application for further evidence failed

[1] The appellant, whose name has been redacted as JCY (the “Appellant”), pleaded guilty in the District Court to six charges, relating to: (a) three offences of rioting punishable under s 147 of the Penal Code 1871 (2020 Rev Ed) (the “Penal Code”); (b) two offences of sexually penetrating a minor under s 376A(1)(a) punishable under s 376A(3) of the Penal Code; and (c) one offence of theft-in-dwelling punishable under s 380 of the Penal Code. With the Appellant’s consent, ten further charges were taken into consideration for sentencing. These charges related to further offences of rioting, sexually penetrating a minor and voluntarily causing hurt, amongst others. The Appellant was found suitable for probation and reformative training and ultimately sentenced by the District Judge (the “DJ”) to undergo reformative training for a minimum of six months’ detention: see Public Prosecutor v JCY [2024] SGDC 183 (“GD”).

[2] HC/MA 9130/2024/01 (“MA 9130”) is the Appellant’s appeal against the sentence imposed on the ground that it is manifestly excessive. HC/CM 60/2024 (“CM 60”), meanwhile, is his application to admit further evidence in support of MA 9130.

[3] I begin with CM 60. This is the Appellant’s application under s 392(1) of the Criminal Procedure Code 2010 (2020 Rev Ed) to admit the following pieces of further evidence for the purposes of MA 9130:

(a) A payment transaction record showing that the Appellant made full restitution for his theft-in-dwelling offence (as well as another theft-in-dwelling offence against the same victim for which he was not charged) in the amount of $210 on 8 October 2024.

(b) A letter by the Appellant’s former secondary school principal dated 6 October 2024 “to support his appeal to the Court to [lessen] his sentence”.

(c) An exchange of emails between the Appellant’s counsel and his current school lecturer dated 4 and 7 October 2024. In response to the former’s queries, the latter stated that the Appellant’s attitude, attendance and academic performance had improved in the time since May 2024, when he last corresponded with the Appellant’s probation officer to assist in the preparation of the Probation Suitability Report dated 24 May 2024 (the “Probation Report”). He further stated that the Appellant’s attitude, conduct and attendance during his internship had been reviewed as good by his employer.

(d) A personal letter dated 9 October 2024 by the Appellant “[reflecting] on the latest developments in [his] life, as well as [his] future plans going forward”.

[4] The admission of fresh evidence in a criminal appeal by an accused person is governed by the three conditions articulated in the English Court of Appeal decision of Ladd v Marshall [1954] 1 WLR 1489 of non-availability, relevance and reliability, subject to the important qualification that the first condition of non-availability is less paramount than the other two conditions: Iskandar bin Rahmat v Public Prosecutor and other matters [2017] 1 SLR 505 at [72], citing Soh Meiyun v Public Prosecutor [2014] 3 SLR 299 (“Soh Meiyun”) at [16]. Further, if the application is made following a plea of guilt and the only issue before the court is that of sentencing and not conviction, the court may decide to accord greater latitude to the applicant, not least because if there is a dispute over the matter covered by the new evidence, the court may require the new evidence to be proved (for instance, by remitting the matter to the trial judge to convene a Newton hearing): Public Prosecutor v Mohd Ariffan bin Mohd Hassan [2018] 1 SLR 544 at [46].

[5] Applying the relevant principles, I disallow the application. I do so because the further evidence adduced by the Appellant does not satisfy the condition of relevance, which requires that the evidence would probably have an important influence, even if not a decisive effect, on the result of the case: Soh Meiyun at [14].

[6] Beginning with the payment transaction record (see [3(a)] above), I observe that limited mitigating weight should be placed on the act of restitution by the Appellant which it evidences. This was done belatedly and cannot therefore suggest significant remorse on the Appellant’s part, even if it nonetheless had the effect of reducing the harm suffered by the victim: Gan Chai Bee Anne v Public Prosecutor [2019] 4 SLR 838 at [62]–[63]. In oral arguments before me, counsel for the Appellant conceded that the mitigating weight to be given to his act of restitution was “next to nothing”. In any event, the fundamental point is that the theft-in-dwelling offence was only one, and among the least serious, of the Appellant’s many offences. Indeed, the DJ did not place significant reliance on this offence in explaining why deterrence and retribution were relevant sentencing considerations in the present case: GD at [53]–[55]. Accordingly, I am satisfied that the Appellant’s making of restitution cannot displace any need for deterrence and retribution arising from the totality of his offending conduct. In the premises, I do not consider that it is likely to have an important influence on the result of MA 9130.

[7] The various letters and emails adduced by the Appellant (see [3(b)]–[3(d)] above) similarly do not satisfy the condition of relevance. These letters and emails seek essentially to demonstrate the strength of the Appellant’s propensity for reform by referring to certain steps he has taken following his commission of the offences. However, in identifying deterrence and retribution as relevant sentencing considerations, the DJ was influenced by the nature of the offences that the Appellant had committed rather than by the strength or otherwise of his propensity for reform going forward: GD at [53]–[55]. It is therefore hard to appreciate the relevance of these letters and emails. I also observe that the alleged changes in the Appellant’s conduct on which they rely are largely very recent in nature, some even post-dating the filing of his Notice of Appeal, and are therefore of highly questionable probative value. Finally, the letter of support by the Appellant’s former secondary school principal, in particular, is entirely reliant on a single recent conversation with the Appellant. All it adds to the post-offence steps allegedly taken by the Appellant, which were self-reported by him during that conversation and are recounted in the letter, is his former principal’s opinion that he has undergone a ”significant change” since their last interaction, including “a big difference in the way he looked, as well as the way he engaged me in conversation”. With respect, this opinion falls well short of satisfying the condition of relevance.

[8] For the reasons above, I dismiss CM 60.

[10] The two-stage sentencing framework applicable to youthful offenders is well established: see, eg, Public Prosecutor v Mohammad Al-Ansari bin Basri [2008] 1 SLR(R) 449 (“Al-Ansari”) at [77]–[78] and Public Prosecutor v Koh Wen Jie Boaz [2016] 1 SLR 334 (“Boaz Koh”) at [28]. First, the court identifies and prioritises the primary sentencing considerations. Second, the court selects the appropriate sentence that would best meet those sentencing considerations.

[11] I begin with the first stage. There is no dispute that rehabilitation remains the primary sentencing consideration on account of the Appellant’s youth. In the DJ’s view, however, deterrence and retribution were also important sentencing considerations given the seriousness of the offences and the harm caused to their victims: GD at [52]–[55]. Having regard to the relevant factors (see Boaz Koh at [30] and Public Prosecutor v ASR [2019] 1 SLR 941 at [101]–[102]), I entirely agree with the DJ’s assessment. I do not accept the Appellant’s submission that the DJ placed undue weight on deterrence and retribution as sentencing considerations.

[12] First, the Appellant’s offences were serious. The offences of rioting and sexually penetrating a minor, in particular, are intrinsically very serious. This much is clear from their statutorily prescribed punishments. It is also relevant that the Appellant was no bystander in the rioting offences but actively participated in the infliction of violence. Further, on one occasion, he initiated the attack by asking the headman of his gang for permission to “whack” the victim. On another occasion, he suggested a suitable location for the commission of a further attack on a separate victim. As for the offences of sexually penetrating a minor, the Appellant had the advantage of several years over the victim, being 16 years old at the time while she was only 13. It is irrelevant that he was apparently unaware of the unlawfulness of his conduct because ignorance of the law is no excuse, whether to exculpate from criminal liability or to mitigate in sentencing: Public Prosecutor v Tan Seo Whatt Albert and another appeal [2019] 5 SLR 654 at [48].

[13] Second, the Appellant’s offences caused appreciable harm to their victims. The victims of his rioting offences all sustained varying degrees of physical injury. More significantly, the 13-year-old minor with whom he engaged in unprotected sex, ejaculating into her vagina on at least one occasion, was exposed to the risk of pregnancy.

[14] Third, I acknowledge that the Appellant has not reoffended since February 2023. I therefore hesitate to classify him as a hardened and recalcitrant offender. Nonetheless, I register my grave concern that the Appellant committed a large number of offences within a short span of time. Even more troubling, in my view, is that he committed most of these offences while on police bail following his arrest for a rioting offence. As noted in the Probation Report, this indicated his “anti-social attitude, blatant disregard for the law, minimization of the severity of the offences, and failure to internalize lessons learned”. I also observe that the rioting and hurt offences point to a worrying overall tendency on the Appellant’s part to resort to violence, especially in a group setting. In the circumstances, it is unsurprising that the Appellant’s risk of re-offending was assessed in the Probation Report as high compared to other male offenders.

[15] I address one further submission by the Appellant. He submits that the DJ placed insufficient weight on his young age at the time of offending and, consequently, placed undue weight on the need for specific deterrence. In support of this argument, he cites A Karthik v Public Prosecutor [2018] 5 SLR 1289 (“A Karthik”) at [37]–[42] for the proposition that the actions of a young offender may be more readily excused on the grounds of his youthful folly and inexperience. This submission betrays a misunderstanding of A Karthik. The court in A Karthik was explaining why “youthful offenders should ordinarily be sentenced on the basis of rehabilitation being the dominant sentencing consideration” [emphasis added]: A Karthik at [37]. However, there is no dispute in the present case that rehabilitation remains the dominant sentencing consideration on account of the Appellant’s youth. Equally, there is no dispute that the primacy of rehabilitation may be diminished by the circumstances of the case or even eclipsed by considerations such as deterrence or retribution. This was recognised in A Karthik itself at [65]. Indeed, the Appellant himself concedes that “both general and specific deterrence definitely feature herein (albeit a question of extent)”. Accordingly, A Karthik does not assist the Appellant. Notwithstanding his young age, I am satisfied that the DJ correctly identified and gave appropriate weight to specific deterrence as a sentencing consideration.

[16] I now turn to the second stage of the sentencing framework. I have concluded at the first stage that, although rehabilitation remains the dominant sentencing consideration, deterrence and retribution are also relevant in the present case. In my judgment, it follows as a matter of principle that reformative training would be a more appropriate sentencing option than probation. This is because the deterrent effect of probation is “relatively modest in nature”: Al-Ansari at [56]. Conversely, although reformative training is, like probation, a rehabilitative sentence, it also carries a significant deterrent effect: Al-Ansari at [47] and [57]–[58]; Boaz Koh at [36]–[38]. For this reason, the authorities are clear that reformative training will generally be the appropriate sentence where, although rehabilitation remains the dominant sentencing consideration, a degree of deterrence is also required: Boaz Koh at [39]; Public Prosecutor v Ong Jack Hong [2016] 5 SLR 166 (“Ong Jack Hong”) at [14].

(d) Fourth, the Appellant submits that the DJ erred in failing to acknowledge the observation in Praveen s/o Krishnan v Public Prosecutor [2018] 3 SLR 1300 (“Praveen s/o Krishnan”) at [34] that “probation with the additional condition of hostel residence of a specified duration strikes a good balance between rehabilitation and deterrence”.

[19] Contrary to the Appellant’s invitation, I also do not consider it necessary or helpful to provide specific guidance on the circumstances in which it will be appropriate to sentence a young offender to probation on conditions including a residential requirement in an approved institution. Given that there is no fundamental distinction in kind between such probation orders and other types of probation orders, the appropriateness of such probation orders falls to be determined by reference to the established legal principles. Any finer differences in degree between such probation orders and other kinds of probation orders in their deterrent effect have also already been recognised in the existing authorities cited by the Appellant himself: see Al-Ansari at [56] and Praveen s/o Krishnan at [34].

[21] For the reasons above, I dismiss MA 9130.

[22] In summary, I dismiss CM 60 and MA 9130.