FEATURE

Plea in Mitigation 

 

This guide aims to provide some helpful pointers to defence counsel on the preparation and presentation of a plea in mitigation and to underscore some pitfalls to avoid. It is not intended to be a substitute for more detailed treatises on the subjects of advocacy, criminal procedure or sentencing practice. To facilitate further research, a reference list of resource materials has been included at the end of this guide.

 

Introduction

The role of the defence counsel in mitigation

Whether an accused pleads guilty or is found guilty after a trial, he is entitled to make, or have made on his behalf, a plea in mitigation before sentence is passed. A plea in mitigation is made in the majority of criminal cases. A well-crafted plea in mitigation, eloquently delivered, may make all the difference between prison and a non-custodial sentence.

 

As defence counsel, your role in the delivery of a plea in mitigation, like in all other matters, is to safeguard and advance your client’s interest. Your duty is to see that all relevant factors on the question of sentence arebrought to the attention of the court.1

As an officer of the court, you have an obligation to ensure that you do not mislead the court2 or squander the court’s time.3 Having said that, where a client has previous convictions and the prosecution omits to put the record before the court, you are under no duty to make disclosure of the same, save that you must not assert that the client has no antecedents or direct questions to the prosecution in the hope of receiving an answer to that effect.4

The plea in mitigation and its objectives

A mitigating factor is something which an accused should be given credit for in determining the sentence.5 The aims in making a plea in mitigation are to:

1   obtain for your client the least punishment reasonably available in all the circumstances, consistent with justice; and

 

2   persuade and assist the court to find the most appropriate form of sentence for your client.

The effective plea in mitigation

In achieving the above aims, both the preparation and delivery of the plea in mitigation are important. A good plea in mitigation is not simply a presentation to the court of the factual background surrounding the offence, some mitigating factors about the accused and the offence, followed by a request for compassion and leniency. Although these would naturally form the basic framework of a plea in mitigation, a lot more thinking has to go into it. An effective plea in mitigation must be meticulously prepared, as well as logically and boldly delivered as a reasoned argument directed to achieve a specific result.

 

When to make a plea in mitigation

The foregoing assumes that a plea in mitigation should be made in its fullest measure, which is the norm. There may, however, be instances where a plea in mitigation should be made only in a limited fashion (eg where an appeal is contemplated pursuant to a conviction after trial), or in some rare occasions, should not go beyond a rudimentary plea for leniency. Needless to say, one should scrupulously consider the facts and circumstances before settling on such courses of action. Where an accused is represented, the court need only invite the defence counsel to make a plea in mitigation, although it is not duty-bound to do so.6 If you decline, the court is not obliged to seek out any circumstance of mitigation.7 The court has no duty to defend the accused, and thus it is not obliged to assist the accused in presenting his case.

 

Preparation

Preliminary

As in all forms of advocacy, good preparation is the foundation of success. The pre-mitigation plea preparation is considerably more important than the form the plea takes.

 

To prepare an effective mitigation plea, you should begin with the end in mind. That is to say, you only begin to craft the plea when the outcome you are endeavouring to achieve is plain to you, whether it is probation for a youthful accused or a non-custodial sentence for a first-time offender. In this regard, consider:

1   What is the most appropriate sentence based on a realistic assessment of the sentencing options and principles?

 

2   What facts have to be established (or negated) to achieve such a result?

 

A complete knowledge of the court’s sentencing powers, the likely penalties for the offence (sentencing precedents), the facts of the case, and your client’s background are essential for a purposeful and effective mitigation plea.

 

Upon accepting a brief to mitigate and being apprised of the charge(s) against your client, you need to take full instructions from your client in respect of each charge so as to be able to advise your client appropriately.

 

It is always important to bear in mind that the objective of a mitigation plea is to seek leniency and instructions that qualify the plea should be explained to the offender. In the event that he maintains his instructions, the appropriate course of action would be to claim trial.

 

The five steps in preparation

A mitigation plea requires thorough preparation and attention to details. The following five steps should be considered when preparing a plea.

 

Step one: Ascertain the sentencing options

To begin with, ascertain the court’s possible sentencing powers and options. For example:

1   Whether a minimum sentence is prescribed for the offence?

 

2   Whether a custodial sentence is mandatory?

 

3 Whether driving disqualification, caning, probation, reformative training, preventive detention or corrective training are applicable?

 

Step two: Consider the relevant factors

You should then critically assess the information you have gleaned from the prosecution (such as the Charge, the First Information Report, the Cautioned Statement, Statement of Facts, if available); and instructions taken from your client so as to ascertain the relevant aggravating and mitigating factors.

 

When preparing the mitigation plea, you should seek to: (i) highlight the salient mitigating factors; and (ii) soften the adverse impact of the aggravating factors.

 

Mitigating factors can generally be divided into two broad categories:

1   specific mitigating factors; and

 

2   personal mitigating factors.

 

Specific mitigating factors would be those which would reduce the seriousness of the particular offence committed. These include factors like minor loss or detriment suffered by victim, subordinate role of the accused, provocation received from the victim etc. Obviously, the list of specific mitigating factors is wide-ranging. A more comprehensive treatment of such mitigating factors can be found in Sentencing Practice in the Subordinate Courts where the factors are considered alongside the specific offences they relate to.

 

Personal mitigating factors would be those peculiar to the accused which would merit leniency. The following list of mitigating factors is non-exhaustive and would depend on the particular idiosyncrasies of the accused and the particular circumstances of each case:

1   The accused’s background and attitude. Here, you are looking for circumstances which might: (i) explain your client’s offence (eg childhood, family, upbringing, lack of education etc); or (ii) demonstrate his past good character to prove that the present offence is an aberration of conduct. The court is interested to know whether your client is genuinely contrite, whether he is willing to make amends, and whether he is likely to re-offend.

 

2   The accused’s previous good character.

a   First-time offender. Note that generally, more credit is given to positive evidence of an accused’s good character as opposed to the absence of prior convictions.8

 

b   Worthy social contributions or distinguished public service. Courts have been known to give credit to accused persons for distinguished public service or services to the community.9

 

3   The accused’s behaviour subsequent to offence.

a   Plea of guilt. A timeous plea of guilt suggests genuine remorse and is a mitigating factor.10

 

b   Co-operation with authorities. Voluntary surrender, co-operation with the police or prosecution may afford a reason for mitigation of sentence.11

 

c   Restitution. Voluntary restitution may be suggestive of remorse, good character or reformation.12

 

d   Generosity. The fact that the accused had been generous with the proceeds of his crime is irrelevant and not a legitimate mitigating factor.13

 

4   The accused’s age.

a   Young offenders. Accused persons below the age of 21 with no antecedents are usually dealt with sympathetically bearing in mind the potential for rehabilitation. Imprisonment is usually a sentencing option of last recourse, and is generally reserved for cases where the offence is serious, or where the offender has shown himself to be unresponsive to earlier efforts at rehabilitation.14

 

b   Elderly accused. There is no general rule mandating the giving of discounts for offenders of mature years, save in exceptional cases.15

 

5   The accused’s physiological condition.

a   Ill-health. Ill-health of the accused may in exceptional circumstances be a ground for reducing sentence.16

 

b   Mental condition. The fact that the accused is suffering from a mental disorder is relevant but its bearing would depend on the circumstances of each case.17 In the context of intellectually disabled offenders, it should be noted that these persons are not treated differently for the purposes of sentencing, but are instead punished in like manner as other offenders. Similarly, the appropriate sentence to be passed would necessarily turn on the factual matrix of each case.18

 

c   Pregnancy. Pregnancy typically would not justify a reduction in sentence.19 However, in exceptional cases where the offence is not very serious, you may attempt to persuade the court why it should do so as an act of mercy.

 

6   The circumstances that led to the accused committing the offence.

a   Financial hardship. Save for very exceptional or extreme circumstances, financial hardship cannot be relied upon as a mitigating factor.20

 

b   Intoxication. Voluntary ingestion is not a mitigating factor.21 For violent or serious offences, voluntarily intoxication may even be considered an aggravating factor. However, exceptionally, if it can be demonstrated that the intoxication was involuntary or out of character, you may attempt to persuade the court why it should be treated as a mitigating factor.

c   Drug or alcohol addiction. The fact that the accused committed the offence to feed an addiction is of no 
mitigation value.22

 

d   Entrapment. Entrapment is relevant where the conduct of the agent provocateur induced the commission of the offence, which the accused would not have committed or would have been unlikely to commit.23

 

e   Ignorance of the law. Ignorance of the law is not a mitigating factor.24 An argument could perhaps be made that in an offence that contains little or no moral blame, if the accused commits the offence unwittingly, ignorance of the law should be treated as mitigatory.25

 

f    Other circumstances. It goes without saying that the possible circumstances that could lead an accused to commit an offence are limitless and it is pointless to generalise, save to say that you should ascertain if there was any immediate crisis or extraordinary circumstances in your client’s life that caused him to commit the 
particular offence.

 

7   The likely effect of the sentence on the accused or his family.

a   The accused’s work record and work prospects. In exceptional circumstances, loss of employment or a career are part of the circumstances the courts take into account in assessing sentence.26 The weight attached would depend on the circumstances.

 

b   Hardship to the accused’s family. Hardship to the accused’s family is not normally a legitimate mitigating factor.27 However, in exceptional or extreme circumstances, such hardship may be taken into account.28

 

8   Time the accused spent in custody. The court may take into account any period the accused has been in remand when determining the length of an imprisonment term.29 The court’s discretion extends to considering the period of time that the accused has been in custody overseas, pending extradition.30

9   Delay in prosecution. Delay in prosecution in itself is not a mitigating factor but in appropriate cases, where the delay has been significant and where the accused did not add to the delay, the court may exercise its discretion in giving a reduced sentence.31

 

You should face up to the aggravating factors and weaknesses in your client’s case. It will be unwise to pass them by as though they did not exist because they will not disappear. You must be prepared to deal with them as best as you can, as they are likely to be weighing on the mind of the court. To achieve this, you should be familiar with the sentencing principles of deterrence, prevention and retribution,32 and be able to address the public policy considerations relating to your client’s offence. Additionally, if you give your client’s case due consideration, aggravating factors often can be balanced off or negated when weighed against other mitigating factors. It is your task to see that the balance achieved is the most favourable that your client can reasonably expect in the circumstances. A distinction should be drawn between ‘aggravating factors’ and features which are part and parcel of an ‘aggravated offence’ eg use of weapons, hurt caused etc.33

 

The following is a checklist of some matters you should consider when taking your client’s instructions and in your preparation of the mitigation plea:

 

Charge

The offender may face one or several charges and it is relevant to know if there has been reduction in the charge or if any charges are withdrawn or being taken into consideration for the purposes of sentencing.

 

Circumstances

The particulars in each case will vary and there is no set recipe for what is mitigating but attention should generally be given to the level of pre-meditation, type of mens rea, degree of culpability involved.

 

Consequences

The offence will often be regarded in the context of the consequences of the offender’s criminal act and it is useful to highlight facts that can mitigate the result or impact of the offence eg minor injury, low value, small quantity.

 

Remorse

There is no meter to measure the regret of an offender and any act that can be used to gauge genuine repentance will be of assistance eg co-operation with police, admission of guilt, full restitution.

 

Psychiatric

The presence of any psychiatric condition is always relevant because an offender suffering from any genuine illness that would compromise or impair judgment should not be held accountable to the same standard as another offender.

 

Medical

While the medical condition of an offender does not excuse any criminal act, the fact that your client already suffers from a physical or physiological illness is relevant in so far as it adds to the personal background of the offender.

Profile

This is your opportunity to present the personality and character of your client so that he/she is not regarded as a mere charge number or NRIC number and this is done by outlining the age, family, educational and professional background of the offender.

 

Antecedents

The presence of previous convictions must be determined since you do not get a copy of your client’s record from the CRO and conversely, the absence of any antecedent must be confirmed so as to be highlighted.

 

Sentence

The offender may not know the possible sentencing options and so, part of your duty is to explain these options (eg probation, reformative training, corrective training, preventive detention etc) and elicit a position to present to the court.

 

Miscellaneous

Details (eg time spent in custody/remand, the sentence imposed on an accomplice, whether the accomplice has any antecedents, and the position on exhibits seized) should be clarified so as to present your client’s instructionsto the court.

 

Step three: Contemplate the desirability of additional materials or witnesses

You should also address your mind to the desirability of: (i) obtaining additional or supporting materials (eg testimonials, awards, school report cards, medical reports, psychiatric assessments etc); (ii) calling character witnesses; and/or (iii) inviting the court to call for a pre-sentence report for your client during mitigation to corroborate the mitigating factors that you intend to raise. You should obtain the additional materials expeditiously, well in advance of the date on which the plea in mitigation is to be made.

 

Generally, character evidence in the form of relevant written testimonials will suffice. A really good character witness can sometimes do more for your client than your eloquence and argument. However, a character witness should never be called before you have had the opportunity to size up his usefulness and reliability. You should interview the witness to: (i) ensure that he supports the argument you intend to make; and (ii) assess the impression he is likely to make to the court.

 

Step four: Assess the likely penalties

After attending to the above, you should then consider the sentencing precedents and make a realistic assessment of the likely penalties that the court might impose for the offence in question, bearing in mind the aggravating and mitigating factors peculiar to your client’s case. Veteran counsel often rely on their familiarity with sentencing ‘benchmarks’ or trends, and past experiences with the sentencing judge. Less experienced counsel are advised to draw upon such experience of their brethren. Additionally, ready and invaluable sources of such information are Sentencing Practice in the Subordinate Courts, jointly published by the Subordinate Courts and LexisNexis, and ‘Results of Magistrate’s Appeals Database’ which is part of the ‘Legal Workbench’, the online research database accessible via www.lawnet.org.sg.

 

Having ascertained the likely penalty, you should then discuss this with your client candidly and obtain his approval to submit on the ideal penalty (or range) for the court’s consideration.

 

Step five: Conceptualise and structure a compelling argument

Once you have realistically appraised the sentencing options, are conversant with the factual circumstances of the case, and have determined the ideal penalty (or range) in the light of sentencing precedents, your final task is to cast the information gathered into a reasoned and coherent argument for the court’s consideration.

 

As in any other forms of advocacy, you should seek to advance a compelling argument in your mitigation plea, one that would make the court feel intellectually uneasy in rejecting.

 

In crafting the argument, you should bear in mind to the following Do’s and Don’ts.

 

DO be:

1   Selective. Be discerning in deciding whether a point is worth making or whether its downside outweighs its potential benefit. Advance only those points which:

a   are cogent and persuasive;

 

b   can be demonstrated as actually bearing upon the offence your client has committed; and

 

c   support the plea that he should be dealt with in a certain way.

 

     Whilst it is your responsibility to highlight to the court the relevant guideline judgments and sentencing precedents, you should be selective when citing sentencing authorities as most cases turn on their own facts.34

 

2   Reasoned. Any points made must be dictated by logic. Avoid the irrelevant, the sentimental and the absurd.

 

3   Accurate. Ensure that the facts are accurate and deductions from them trustworthy. Never make an assertion that cannot be supported by reference to evidentiary material.

 

4 Original. Be mindful that the court would have previously heard countless mitigation pleas. Avoid clichés. Search for an original, attractive and interesting approach.

 

5   Clear. Suggest to the court the desired outcome. There is no reason why this cannot be done. In fact, the court welcomes such submissions, provided that it is done tactfully and rationally. If you are able to suggest a realistic sentence that the court eventually accepts, you would have discharged your duty to your client and would have been of assistance to the court.

 

6   Realistic. For instance, it is probably quite pointless asking for probation if your client had re-offended whilst on probation or had previously served a jail term.

 

DON’T be:

1   Equivocal. Be careful not to qualify the accused’s plea of guilt by disputing the mens rea and actus reus of the offence. Do not appear to be implying that the accused is not responsible for the offence.35

 

2   Scandalous. Desist from making allegations that are scandalous or calculated to vilify or insult any person.36

 

Preparing written submissions

You should prepare your mitigation plea in writing. This is because written submissions will:

1   save the court’s time in recording the plea in mitigation in long hand;

 

2   afford the court ample opportunity to evaluate the arguments; and

 

3   put the arguments on record.

 

You can structure your arguments under topical headings. A possible arrangement could be as follows:

1   Your client’s family and background. Here, your client is presented as a human being and not just another criminal.

 

2   Background facts to the offence. You should focus on highlighting additional facts that give the court a better understanding of the circumstances surrounding the offence while taking care not to make claims that are inconsistent with the Statement of Facts (for example, in a case of rioting, claiming that your client did not assault the victim when the Facts state that he did). This also should not be a repetition of the Statement of Facts. You may introduce the related specific mitigating factors under this heading.

 

3   The mitigating factors. This is where the personal mitigating factors relevant to your client are introduced.

 

4   The prayer. This is where you can conclude by showing the court ‘the way home’.

 

The importance of making a reasoned argument cannot be over-emphasised. The crucial point to note, in preparing written submissions, is that the facts should always be subordinate to a cogent argument. The written submissions should never be a pigeon-holing exercise, where facts are simply arranged under topical headings as a series of assertions unsupported by reasons.

 

If you have taken pains to base your written submissions on a realistic appraisal of the facts, as well as sentencing principles and precedents, the court will have to give due consideration to the cogency of your arguments.

 

Procedure

This section will deal with the actual process and procedure of entering a plea-in-mitigation. Two scenarios: (i) mitigation upon a plea of guilt; as well as (ii) upon conviction after a trial, will be discussed.

 

Preliminary

If your client wishes to admit to the charges (ie plead guilty), his case will be fixed for mention. Otherwise, trial dates will be fixed after a pre-trial conference. Irrespective of whether your client is convicted on a guilty plea or after a trial, the mitigation and sentencing will be conducted in open court.

 

If your client wishes to plead guilty, you should -– before the commencement of mentions: (i) obtain a copy of the Charge(s) as well as Statement of Facts from the prosecution; and (ii) ascertain from them your client’s antecedent records (if any) and whether they intend to address the court on sentencing matters. You should then go through the Charge(s), Statement of Facts (‘SOF’), and antecedent records with the client prior to the mentions, and confirm whether: (i) they are correct; and (ii) he is prepared to admit to them. Any doubts or objections regarding such information should be raised with the prosecution before the guilty plea is taken.

 

Commencement of proceedings

When your client’s case is mentioned, parties will: (i) introduce themselves; (ii) inform the court of the charge(s) to be proceeded with; and (iii) apply for the remaining charges (if any) to be stood down.

 

In some circumstances, your client may want to plead guilty but have the sentence passed on another day. Bearing in mind that sentence is usually passed and executed on the day of the guilty plea, you should inform the court of your client’s request before the plea is taken. You may consider making any of the following applications:

1   to adjourn the proceedings entirely;

 

2   to take the plea but adjourn mitigation and sentence; or

 

3   to defer the commencement of any custodial sentence.

 

These applications should not be made without cogent reasons and may be granted subject to consequential orders in relation to bail or conditions of bail, particularly in scenarios (2) and (3).

 

Charge (proceeded)

Only the charge(s) proceeded with will be read to your client. Thereafter, your client will have to either admit or deny the charge(s). If your client disputes the charge(s), the hearing of evidence would begin.

 

Facts (‘SOF’)

Where your client is convicted after a trial, findings of facts would have been made by the court.

 

On the other hand, if your client pleads guilty to the charge(s) at the mentions, the SOF will be read out by the prosecution. Should your client admit to the SOF, the court will convict him if an offence is made out on the facts. If he disputes the SOF, then the plea may be rejected if the disputed facts are relevant or material to the ingredients of the offence37 as he would then have qualified his plea of guilt.

 

If the disputed facts are irrelevant or immaterial to the offence but are nevertheless relevant to sentencing, the court will conduct a post-conviction hearing (otherwise known as a Newton hearing).38

 

Charge (‘TIC’)

After the court has convicted your client on the charges proceeded with, either after trial or at mentions, the prosecution may apply for any remaining charges to be taken into consideration (‘TIC’) for the purposes of sentencing, with your client’s consent.39

 

Antecedents

The prosecution will then inform the court whether your client has any previous convictions, and if so, what these are.

 

Mitigation

Thereafter, you will present the plea in mitigation. This is usually prepared as a written submission and tendered to the court prior to the proceedings. There are different approaches to presenting mitigation. You may either take the court through the written mitigation and exhibits, or confirm with the court whether it may be taken as read. In mitigation upon conviction after trial, you should take care not to: (i) raise matters that contradict the findings of fact by the court; and (ii) make any submission that would compromise an appeal against conviction.

 

Submissions

Before the court passes sentence, the prosecution may address the court on sentence – usually to highlight: (i) the sentence imposed on your client’s accomplices or other similar cases; or (ii) the reasons why a particular type of sentence or a deterrent sentence should be imposed. You will be given an opportunity to respond to these submissions.

 

Sentence

Having heard information relating to the circumstances of the offence and your client’s background, as well as the submissions on sentence, the court will then sentence your client.

 

Ancillary matters

After sentence has been passed, there are other orders that may be necessary and these are discussed in the later part of this article.

Delivery

The finale

Having crafted the mitigation plea as a reasoned and compelling argument, preferably in the form of a written submission upon which you intend to convince the court to act, what remains to be done is for you to get on your feet and present your arguments.

 

Preparing the bench

It makes good sense for you to forward your written submissions to the court ahead of the time, if not a few days in advance, at least before the hearing commences in open court. This allows the judge some opportunity to consider and weigh the arguments in the written submissions and helps prepare him for your arguments.

 

The good performance

In delivering your mitigation plea, you should strive to be:

1   Persuasive. A mitigation plea is an exercise in persuasion rather than a defence or statement of a position. This involves:

a   Knowing the purpose – Being clear on the desired outcome, keeping your mind squarely on it and marshalling your presentation in court in that direction.

 

b   Knowing the argument – A complete mastery of the argument to support the outcome. Be able to demonstrate that the desired outcome is in accordance with sentencing principles. Preparation breeds confidence.

 

c   Knowing the court – Endeavour to know the court in order to anticipate how it will react to your arguments. Judges and magistrates are human too. You should try to understand the background, personality and previous decisions of the judge. Appreciate that the sentencing process involves emotions as well as the intellect of the judge. The key to persuasion is to create a belief in the decision-maker that the desired outcome is something the decision-maker thought of himself.

d   Communicating with the court – Effective communication is essential to persuasion.

i    Be brief. You should not fall into the temptation of prolonging a performance for the sake of making your client feel that his counsel is doing his utmost.

 

ii   Use short sentences over convoluted ones and plain words over legalese. Be descriptive and expressive, make use of metaphors and create mental images for the court.

 

iii   Engage the court in conversation. Do not give a speech or lecture. If written submissions were tendered earlier, the judge will have read them. Summarise the key points and avoid reading from the written submissions.

 

iv   Make a reasoned appeal to emotions. Humanise rather than de-personalise. Refer to your client by his name as opposed to ‘the accused’. Speak of your client as a human being, with dreams, hopes and aspirations, not just another criminal. Paint a picture, tell a story, to aid the court in identifying and sympathising with your client.

 

v    Welcome questions from the court as they indicate the court’s concerns. Anticipate such questions and be prepared to address them.

 

2   Balanced. Be prepared to acknowledge and deal with the weaknesses of your case. These may need to be stated and dealt with in a positive way. Do not leave weaknesses for the prosecution or the court to undermine your arguments. If sufficient thought had been applied, conflicting arguments can be anticipated and some consideration could be given to neutralising or diminishing the damage.

 

3   Bold. If your client’s case contains special mitigating factors, you need to show the court why these merit a departure from the established sentencing benchmarks, if appropriate. Changes can be achieved with creative and courageous advocacy. In appropriate cases, it may well be your responsibility to:

a   augment the court’s understanding and acceptance of new learning from other fields and of changing social circumstances and attitudes; and

 

b   urge the court to re-look at precedents and/or extend previously accepted limits.

 

     To be bold is not to be extreme, impractical or controversial for its own sake. It means to strive to be fresh and interesting, to persistently and competently present a novel approach that is reasoned and supported by evidence.

 

Perhaps more than any other form of advocacy, the way in which you present a mitigation plea is of great importance. It is to be expected that there is a natural sympathy for an accused, whatever offence he has committed, when he stands to be sentenced and a corresponding eagerness to hear what can be said on his behalf. Conceivably, judges who are subjected to clichés or daily ‘standard’ performances will be more receptive to and appreciative of a counsel who puts in a genuine effort in sizing up the court’s concerns and in articulating appropriate, imaginative and sensible sentences that would serve both the client’s and society’s interests.

 

Ancillary Matters

Preliminary

Your duty to your client does not end with mitigation. After the sentencing, there may be various consequential and ancillary orders that could be made depending on the factual scenario of the case. This guide will not provide an exhaustive list of all possible ancillary or consequential orders but will deal only with those issues generally raised by the prosecution or defence counsel on sentencing.

 

Pre-sentence reports

In appropriate cases, the court may remand your client at the Institute of Mental Health (‘IMH’) and order a psychiatric evaluation to determine your client’s fitness to plead.

 

Aside from fines, imprisonment or caning, other sentencing options may be considered depending on your client’s background (eg probation, reformative training, corrective training, preventive detention). Before imposing any of these sentences, the court will usually seek a pre-sentence report (‘PSR’) to assess your client’s suitability for the relevant type of sentence.40 Note that aside from a PSR for probation, your client will be kept in custody pending the preparation of the report.

 

Default sentence for fines

When the court imposes a fine, your client will be kept in custody until the fine is paid. He will have to serve a default custodial sentence if the fine is not paid. In this regard, it is important to note that the default sentence will be reduced according to the amount of the fine paid and that when more than one fine is imposed, the default sentences will run consecutively, unless the court orders otherwise.41

 

Payment by instalment

Your client may not be able to pay the total fine on the day of sentencing and may request for time to pay the sum in full. In these circumstances, an application can be made to the court for payment by instalment.

 

The court will take into account factors such as the offender’s income, the number of dependants he has and the nature of the offence before deciding whether to allow payment of the fine by instalment. You should advise your client that he may be expected to pay a significant proportion of the fine up-front (eg 50 per cent) before being allowed to pay the remainder by instalments.

 

Backdating custodial sentence

Where a custodial sentence is anticipated, you may request during mitigation that the sentence be backdated to the date of any continuous period of your client’s remand.42

 

Concurrent custodial sentence

Where your client will be sentenced to more than one term of imprisonment, you may request during mitigation that the custodial sentences run concurrently, subject to the relevant statutory provisions.43

 

Existing custodial sentence

When your client is sentenced to imprisonment when he is already serving sentence for other matters you may request during mitigation that the fresh term of imprisonment commence from the day of sentence.44

Disposal inquiry

After sentencing, the prosecution may apply to the court for an order relating to the disposal, forfeiture or confiscation of exhibits. You should be aware of your client’s position with respect to these items.

 

Compensation order

A court may order the offender to pay compensation to the victim or to bear the prosecution’s costs.45

 

Conclusion

Distinction in a plea in mitigation can be attained if you recognise the importance of your responsibilities namely to:

1   Assist. Aid the court and not deter the court from finding the most appropriate sentence for your client.

 

2   Persuade. Provide the court with a reasonable basis to be lenient.

3   Obtain. Ensure the court agrees with your submissions and gives full weight to all the relevant mitigating factors you have raised in determining the appropriate sentence.

 

You should discharge your functions seriously and conscientiously. You have a vital part to play in bringing justice to each case and in striking a balance between the interests of your clients and that of society. The attitude should be one of helpfulness. You are not there to do battle with the court but to help it reach a sentencing solution that is just and, hopefully, favourable to your client.

 

You should seek to inspire the court to have confidence in your reliability and ability in providing assistance. The measure of a court’s confidence in you and the degree of reliance it places on you bears a direct relationship to your level of effectiveness in safeguarding and advancing your client’s interests.

 

 

District Judge See Kee Oon; District Judge Kow Keng Siong; District Judge Toh Yung Cheong, Subordinate Courts

Anand Nalachandran, Harry Elias Partnership

Michael S Chia, Sankar Ow & Partners

 

Notes

1   Tay Choo Wah v PP [1976] 2 MLJ 95, at 100.

 

2   Rule 56, Legal Profession (Professional Conduct) Rules.

 

3   Rule 55(c), Legal Profession (Professional Conduct) Rules.

 

4   Rule 78, Legal Profession (Professional Conduct) Rules.

 

5   Krishan Chand v PP [1995] 2 SLR 291; PP v Ong Ker Seng [2001] 4 SLR 180 at para 29.

 

6   Ng Ai Tiong v PP [2000] 2 SLR 358.

 

7   John anak Liman v PP [1968] 2 MLJ 236, at 237.

 

8   Xia Qin Lai v PP [1999] 4 SLR 343.
 

9   Knight v PP [1992] 1 SLR 720.

 

10   Wong Yuk Ai v PP [1966] 2 MLJ 51; Xia Qin Lai v PP (above).

 

11  PP v Lim Hoon Choo [2000] 1 SLR 221.

 

12  Krishan Chand v PP [1995] 2 SLR 291; Tan Sai Tiang v PP [2001] 1 SLR 439; Chng Gim Huat v PP [2000] 3 SLR 262.

 

13  PP v Lim Hoon Choo [2000] 1 SLR 221.

 

14  PP v Mok Wuen Ping Maurice [1999] 1 SLR 138; Tan Kah Eng v PP [1965] 2 MLJ 272.

 

15  Krishan Chand v PP [1995] 2 SLR 291; Tang Kin Seng v PP [1997] 1 SLR 46.

 

16  PP v Ong Ker Seng [2001] 4 SLR 180; Leaw Siat Chong v PP [2002] 1 SLR 63.

 

17  PP v Ng So Kuen Connie [2003] 3 SLR 178; PP v Huang Hong Si [2003] 3 SLR 57.

 

18  Iskandar bin Muhamad Nordin v PP [2005] SGHC 207.

 

19  Rule 83, Prison Regulations, allows an accused to keep her baby until it reaches three years old.

 

20  Lai Oei Mui Jenny v PP [1993] 3 SLR 305; PP v Ong Ker Seng [2001] 4 SLR 180.

 

21  Mani Neduraman & Anor v PP [1998] 1 SLR 411; Balasubramaniam Palaniappa Vaiyapuri v PP [2001] 1 
SLR 314.

 

22  PP v Ng Bee Ling Lana [1992] 1 SLR 635.
 

23  Tan Boon Hock v PP [1994] 2 SLR 150.

 

24  Krishan Chand v PP (above).

 

25  AG v Chan Wai-Lan & Ors [1982] HKCLR 68, 74.

 

26  Knight v PP [1992] 1 SLR 720.

 

27  Abu Syeed Chowdhury v PP [2002] 1 SLR 301.

 

28   PP v Tan Fook Sum [1999] 2 SLR 523; PP v Yap Kong Mong [1999] 4 SLR 257; Ng Chiew Kiat v PP [2000] 1 SLR 370.

 

29  Yong Siew Soon v PP [1992] 2 SLR 933.

 

30   PP v Nicholas William Leeson (MA 391/95/01).

 

31   Tan Kiang Kwang v PP [1996] 1 SLR 280.

 

32   See PP v Tan Fook Sum [1999] 2 SLR 523 for a discussion of these sentencing principles.

 

33   PP v Huang Hong Si [2003] 3 SLR 57.

 

34   Soong Hee Sin v PP [2001] 2 SLR 253 at 258 and 259.

 

35   Rajeevan Edakalavan v PP [1998] 1 SLR 815 at para 24; PP v Lim Yoo Hock [1984] 1 MLJ 309.
 

36   Rule 80, Legal Profession (Professional Conduct) Rules.

 

37  See Mok Swee Kok v PP [1994] 3 SLR 140 for further discussion.

 

38  For a consideration on the evidential and procedural issues involved in a post-conviction hearing, see PP v Chan Yoke Ling Catherine [2004] SGDC 108.

 

39  For further discussion on charges taken into consideration, see s 178 Criminal Procedure Code and PP v Mok Ping Wuen Maurice [1999] 1 SLR 138.

 

40  Section 13(5) CPC makes it mandatory for the court to obtain a report on the offender’s physical and mental suitability for reformative training. There  is no requirement for pre-sentence reports to be obtained before the court passes any sentence of corrective training or preventive detention: Kua Hoon Chua v PP [1995] 2 SLR 386; PP v Wong Wing Hung [1999] 4 SLR 329. Nevertheless, such reports are usually called for in practice.

 

41  Chia Kah Boon v PP [1999] 4 SLR 72.

 

42   See s 223 CPC for the court’s discretionary powers to backdate a sentence as considered in cases such as Tang Kin Seng v PP [1997] 1 SLR 46 and Mani Nedumaran & Anor v PP [1998] 1 SLR 411.

 

43  Section 18 CPC – where the offender is sentenced to imprisonment at one trial for three or more distinct offences, at least two of the imprisonment terms must run consecutively.

 

44  In view of s 234(1) CPC, which prohibits backdating of any sentence of imprisonment where the offender is an escaped convict or where he is already undergoing a sentence of imprisonment.

 

45   Section 401 CPC. For an example of the considerations the court takes into account before making such an order, see Frederick Oliver Seaward III & Anor v PP (MA 9/1993); PP v Emilia Donohue (MA 119/2004).

 

Reference Materials

Advocacy

Sir David Napley, The Technique of Persuasion

Judge Michael Hyam, Advocacy Skills

Judge John Phillips, Advocacy with Honour

Eric Crowther, Advocacy for the Advocate

 

Criminal procedure

Tan Yock Lin, Criminal Procedure

 

Sentencing practice

Sentencing Practice in the Subordinate Courts

DA Thomas, Principles of Sentencing

Andrew Ashworth, Sentencing and Criminal Justice

Walker & Padfield, Sentencing – Theory, Law & Practice