Which of the following would not be a factor for the judge to consider during sentencing?

The goal of the criminal justice system is to enable justice to be served in every case. In sentencing an offender, the Courts pay close attention to the facts and circumstances of each case, as sentencing is a fact-sensitive exercise. At the same time, the Courts are guided by the sentencing range and options specified by the law, as well as sentencing principles, such as the principle that all offenders are equal before the law, regardless of their social status and academic qualifications.

The Government takes a tough stance against sexual and hurt offences. Significant amendments have been made over the years to enhance protection for victims of sexual and hurt offences.

Sentencing Framework for Sexual and Hurt Offences

In deciding on the appropriate sentence, the Court will usually take into account four key sentencing principles and decide how much weight to place on each principle in the context of each case:

1. Deterrence
2. Rehabilitation
3. Proportion Punishment
4. Prevention

All persons are equal before the law. Offenders with higher educational qualifications will not be automatically assessed as having greater rehabilitative potential. The Courts also do not consider one’s social status in sentencing. The Courts ultimately seek to do justice in each case.

Download Sentencing in Singapore Guide (.pdf, 624kb)

For more information on the sentencing framework for sexual and hurt offences, refer to:

1. Ministerial Statement on the Review of Sentencing Framework for Sexual and Hurt Offences – Speech by Mr K Shanmugam, Minister for Home Affairs and Minister for Law
2. Minister K Shanmugam's Ministerial Statement Speech on the Review of Sentencing Framework for Sexual and Hurt Offences (Video)
3. Ministerial Statement on the Review of Sentencing Framework for Sexual and Hurt Offences (Infographic)
4. Taking a Tough Approach Against Those who Commit Sexual and Hurt Offences (Article)
5. How Does Singapore's Criminal Justice System Work? [Part 1] [Part 2] (Video)

Assume you have undergone criminal proceedings in a Singapore court. The court has found you guilty of the crime that you have been accused of (either because you have pleaded guilty, or the court finds that there is sufficient evidence to convict you). The court will now need to decide what type of sentence it should impose on you.

However, before the court decides on the sentence, you will have a chance to make a mitigation plea to ask for a more lenient punishment. A mitigation plea, in short, is a submission of facts or law as to persuade the court that you should be given a lighter sentence.

This article will discuss:

At which Stage of the Criminal Proceedings Will You Make a Mitigation Plea? 

The following flowchart illustrates the stages of criminal proceedings including when a mitigation plea will be made:

You will thus make your mitigation plea after the prosecution has made its submissions on sentence. The main purpose of the mitigation plea is for you to inform the court of any mitigating factors that the court should consider so that it may impose a more lenient punishment on you. Examples of mitigating factors are stated below.

You can also use this opportunity to advise the court on whether you disagree with any of the sentencing precedents that the prosecution has raised. A sentencing precedent refers to sentences that have been imposed in cases similar to yours.

You may, for example, show that a certain sentencing precedent is inapplicable because the facts of that case are not similar to those of your case.

How to Proceed with a Mitigation Plea in Singapore    

You can orally submit a mitigation plea to the court, though you are strongly encouraged to supplement your oral submissions with a written mitigation plea as well.

This is because written submissions can help you come out with a clear structure and provide clarity on the points you may want to focus on. You can also use your written submissions as a reference point when you are making the submissions to the court.

Including mitigating factors in your mitigation plea

Your plea should contain mitigating factors – facts and circumstances of the current case to persuade the court why you should be given a more lenient sentence. Some commonly used mitigating factors include:

• Age – If you are a young offender (an offender who is below 21 years old), the courts may choose to be more sympathetic and consider sentences which focus on your rehabilitation instead of punishing you for the offence
• Factors relating to the circumstances of the crime. For example:
  • Did you play a minor role in the commission of the crime?
  • Are you a first-time offender?
  • Was the crime committed in the spur of the moment? Was no premeditation involved?
  • Were you commissioned or provoked into committing the crime?
  • What were the consequences of the crime being committed? Did you deprive someone of their property, or cause some injury to a person?
• Restitution – did you take efforts to compensate the victim? For example, if you stole monies from the victim, did you return the monies to the victim afterwards?
• Whether you have potential for rehabilitation – how can you show the court that you will not commit a crime again in the future? In this regard, the court may look into your personal circumstances, such as:
  • Your family background, education and employment track records; and
  • Evidence that pertains to your character.
• Degree of co-operation – this would include for example, the following factors:
  • Whether you had pleaded guilty the offence early because you were remorseful for committing it;
  • Whether you have cooperated sufficiently with the police to mitigate the effects of the crime that you have committed;
• Psychiatric illness – whether you are able to show that you were suffering from a mental illness that contributed to you committing the offence. A psychiatric export report would be required to show this.

At the end of the day, how much weight the court will place on these mitigating factors will depend on the particular facts of each case and the severity of the offence.

To illustrate, imagine that there are two 20-year old males, A and B. A commits theft of a mobile device, whereas B has engaged in the act of rioting with a dangerous weapon and caused grievous injury to a victim. Compared to A, the court in the case of B may not place much weight on his age as a mitigating factor owing to the serious consequences of the crime that he has committed.

As a result, it is more likely that B may face imprisonment while A might be able to convince the court to impose a more lenient sentence on him.

What are not accepted mitigating factors for including in your mitigation plea?

Conversely, the courts have declared that certain types of factors do not constitute mitigating factors.

For example, committing a crime because of financial hardship will generally not be considered a mitigating factor unless there are exceptional circumstances to justify the commission of the crime.

Financial hardships caused to the offender’s family when he/she is imprisoned also carries little weight as a mitigating factor, especially where the imprisonment sentence is short.

Thus, even in a case where an offender had to sell her passport to support her two children, the courts found that there was no exceptional circumstance which would justify her receiving a shorter jail term for making a false statement that she had lost her passport.

Similarly, the educational background of a person, in and of itself, is not a valid mitigating factor. The court will only consider your educational record together with other factors, such as family support or a display of remorse, to determine whether you will have a suitable prospect of rehabilitation.

The mere fact that you are a university student with a good academic record will therefore, on its own, not be a mitigating factor, for example.

Do not “qualify” your mitigating plea

At this point, it is also important to take note that in cases where you have pleaded guilty to the offence committed, you cannot “qualify” your plea in mitigation.

Normally, where you have pleaded guilty, the prosecution will prepare a Statement of Facts (SOF) and read out the SOF to the court. You will then be asked whether you agree with the set of facts that the prosecution has set out. If you agree, you will make your mitigation plea.

However, a “qualification” occurs when the contents of your mitigation plea are materially inconsistent with the SOF that the prosecution has presented in court.

For example, assume that you have been charged with voluntarily causing hurt for slapping someone, and you plead guilty to it. The SOF then states that you intentionally went to slap the other person.

However, in your mitigation plea, you go on to assert that the slap was merely accidental and that you never intended to assault anyone. In such a situation, the court will reject your guilty plea and send the matter back to trial.

Similarly, if you disagree with any of the statements in the SOF while it is being read out, you are required to raise the matter to the court before you plead guilty.

What Format Should Your Mitigation Plea be in?

There is no specified format in which your mitigation plea should be in. Thus, you can proceed to make a handwritten mitigation plea and read it out to the court. You can even choose not to prepare written submissions and simply make oral submissions on the day of the sentencing itself.

However, it is strongly recommended that you make written copies of your mitigation pleas. The availability of such written copies lets the court read your submissions beforehand and gain an understanding of your points even before you make your oral submissions.

The court may also ask you questions based on your written submissions to further understand your arguments and decide whether to impose a more lenient sentence on you.

Finally, preparing a written mitigation plea also gives the impression that you are more adequately prepared to handle your sentencing.

Please do note that if you have prepared a written copy of your mitigation plea, you will be required to pass a copy of your plea to both the prosecution and the judge.

What If You are Not Confident of Making Your Mitigation Plea in English?

If you are not fluent in the English language and wish to make your submissions on your mitigation plea in a different language, the court will ask for a translator to be present so that you can make the necessary submissions to the court in your preferred language.

Can You Retract Your Guilty Plea During Mitigation?

If you had initially pleaded guilty but later want to change your plea (i.e. from pleading guilty to pleading not guilty) during mitigation, please be aware that the courts will not allow such a course of action easily.

The courts have made it clear that an accused person will not be allowed to retract his guilty plea merely at a whim. Instead, the accused has to show that there are valid and sufficient grounds which satisfy the court that it is in the interests of justice to allow the accused to retract the plea.

In such a situation, you will need to adduce evidence to show that your earlier plea was invalid. For example, you may be allowed to retract your guilty plea where the court finds that you did not voluntarily plead guilty, or had misunderstood the nature of your plea.

If you are able to successfully retract your guilty plea, then the court will send the matter back for trial.

What Happens After You have Made Your Mitigation Plea? 

After you made your mitigation, the prosecution has a right to reply. The court will then decide on the appropriate sentence to impose on you. The sentencing by the court can either take place immediately after the mitigation plea, or after an adjourned hearing if the court has to take some time to deliberate.

When the sentence is passed, you will normally be required to serve your sentence immediately. There are certain exceptional circumstances in which you can ask the court to postpone the commencement of sentence (for example, if you have to arrange your family affairs before you can serve the sentence).

If your request to defer your commencement of the sentence is approved by the court, it may likely impose additional conditions which you may be required to comply with. For example, such additional conditions may require you to surrender your passport to the police.

The court may also increase the bond amount imposed on your bailor to make sure that you surrender yourself to the court on the start date of your sentence.

What Can You Do If You are Dissatisfied with the Sentence?

You can choose to appeal a sentence if you are dissatisfied with it. You must lodge a Notice of Appeal within 14 calendar days from the time the sentence or order was made. This includes weekends, but not the day the order was made.

For more information, refer to our article on filing a criminal appeal in Singapore.

Must You Engage a Lawyer to Help Write Your Mitigation Plea?

Engaging a criminal lawyer to help with your mitigation plea is not compulsory. However, a lawyer will be able to provide you information on the sentencing benchmarks and precedents that the court has imposed for the particular kind of offence that you have been charged with.

You will be able to use these sentencing precedents to show that you should be sentenced in accordance with these benchmarks, or argue that a certain sentencing precedent is inapplicable for your case (if the prosecution brings it up).

A lawyer can also draft a mitigation plea by highlighting the key factors that may show that you deserve a more lenient sentence.

Bearing these considerations in mind, you are strongly encouraged to consider engaging a criminal lawyer in Singapore to help you draft your mitigation plea.

You can get in touch with experienced criminal lawyers here.