Judge lets NS defaulter serve jail before appeal decision

Prosecution had applied for delay while it sought stiffer sentence

A district judge overruled prosecutors who, in an unusual move, had sought to stop a national service defaulter from starting to serve his jail term until their appeal has been decided.

The prosecution is asking for a stiffer jail term for Sakthikanesh Chidambaram, 25, who had been convicted and jailed three weeks for failing to report for NS for five years, six months and 17 days.

His younger brother Vandana Kumar Chidambaram, who turns 23 next week, was fined $6,000 for failing to report for NS for three years, six months and two days.

Both defaulters also admitted to one count each of remaining outside Singapore without a valid exit permit and these charges were taken into consideration in sentencing.

The prosecution, which had asked for short jail terms for both men, is appealing to the High Court for stiffer sentences.

District Judge John Ng said "ordinarily" he would have approved the prosecution's application to stay the jail term until the appeal but did not accede after Sakthikanesh's lawyers Tan Jee Ming and S. Balamurugan objected and assured the court he would willingly return to serve any additional jail term should prosecutors succeed on appeal.

Judge Ng, in explaining his decision, noted Sakthikanesh was eager to put this episode behind him as he did not want to jeopardise his new job due to start on Nov 7.

The judge said in decision grounds released last week that he rejected the prosecution's application after balancing the interests of the prosecution and the prejudice to Sakthikanesh if his incarceration should be delayed.

In jailing Sakthikanesh for three weeks, the judge had, among other things, discounted six weeks for his "exceptional NS performance" on what would otherwise have been a 10-week jail term for an overseas NS defaulter. This discount was based on guidelines issued by the High Court in dealing with another overseas NS defaulter in February.

The High Court had then ruled that exceptional full-time NS performance should be treated as a strong mitigating factor.

Although the brothers had remained out of Singapore without a valid exit permit and failed to report for NS for a length of time, they went on to serve their full-time NS well - one made Officer Cadet School, and the other won a Soldier of the Month Award.

But Deputy Public Prosecutors Kumaresan Gohulabalan and Randeep Singh Koonar argued exceptional NS performance should not be treated as a mitigating factor in itself but as an aspect of good character and should draw minimal weight in mitigation. They suggested "courts should avoid engaging in a performance ranking exercise to determine the culpability of defaulters".

They added that allowing a jail sentence to be discounted to a fine based on the February High Court decision as applied to Vandana was not in line with a 2006 ministerial policy statement that someone who defaults for more than two years should get a custodial sentence.

The judge said it was obviousthe prosecution was asking him to ignore the guidance provided by the High Court on the mitigating value of exceptional NS performance.

"A lower court ought to give due regard to the benchmark sentences provided, particularly when those benchmarks have been developed by the superior court after a 'rigorous scenario analysis' and are specific in its form and substance.

"This is especially so when those guidelines come in the form of a graph, with plot values and a discount table, which can be applied with certitude and consistency," said Judge Ng, in rejecting the prosecution's submissions.

A version of this article appeared in the print edition of The Straits Times on October 25, 2016, with the headline 'Judge lets NS defaulter serve jail before appeal decision'. Print Edition | Subscribe