Lawyers mixed on assessment to determine if offenders can be released under new sentencing regime

SINGAPORE - A newly proposed sentencing regime, which may see offenders locked up indefinitely, has received mixed reactions from lawyers in Singapore, with some noting the potential impact on rehabilitation for the offenders.

The Sentence for Enhanced Public Protection (Sepp) law was introduced as part of the Criminal Procedure (Miscellaneous Amendments) Bill in Parliament on Jan 10.

It is to prevent dangerous offenders from being automatically released from prison after their jail terms end, especially if they show signs of reoffending.

Sepp is limited to those who commit serious violent offences such as culpable homicide and attempted murder, and serious sexual offences such as rape and sexual penetration of a minor.

Mr Riko Isaac, a partner at Amolat & Partners, said the law may be detrimental to reintegration efforts.

Those charged under Sepp, who are later released on licence, may be subjected to curfews or an electronic tag for more than two years, he noted.

“This may be difficult for an ex-offender who is released on licence to incorporate into his or her working life on a long-term basis if they procure full-time employment,” he added.

Mr Isaac said the comprehensiveness of the assessment and criteria that an offender needs to meet to be unconditionally discharged are also unclear.

“The Sepp may, in theory, be applied to other offences in which public protection is one, or becomes one, of the key considerations in determining the sentence of an offender,” he added.

Mr Wong Kok Weng, Chief Public Defender at the Public Defender’s Office, said Sepp could have a positive impact on rehabilitation.

“From the defence’s perspective, the review at the end of the minimum term will provide a strong incentive for the offender to take his rehabilitation in prison seriously, so he can demonstrate that he has reformed and no longer poses a danger to others.”

He said that even with the proposed law, there has to be a balance between public protection and safety, and safeguards for offenders.

Mr Wong said this is to ensure that offenders are given a chance to reform themselves, but noted that Sepp will be limited to a small number of cases.

He added: “Given the strict legal conditions set out in the Bill, I expect that Sepp will be applied in only a small number of egregious cases, such as for serious sexual offenders. It should not affect the vast majority of cases.

“However, for the small number of cases to which Sepp will apply, it will be a useful sentencing option to better protect the public from dangerous offenders who are assessed by the court to pose a threat to public safety.”

Offenders who have finished serving their sentences under Sepp will be required to undergo an assessment to determine their suitability to be released.

Those who are deemed suitable to leave prison may still be required to attend counselling, or face curfews and be tracked by an electronic tag. They are then assessed again every two years for their suitability to be discharged unconditionally.

Those who are deemed unsuitable for release can be detained indefinitely, with their case reviewed annually.

Mr Sunil Sudheesan, director at Quahe Woo & Palmer, said senior members of the criminal justice system could be included in the detention review board.

Under the proposed law, the board will determine the level of risk an offender poses to society before his release.

“Certainly, the input of the prisoner and his or her lawyer must be sought, as well as must be thoroughly examined,” he said.

Mr Wong noted that the detention review board, which will assess the offender and advise the Home Affairs Minister, will comprise people with experience in forensic psychiatry or psychology, and those experienced with the criminal justice system.

“These may include retired judges and retired judicial commissioners, senior lawyers or senior psychiatrists and psychologists,” he added.

Mrs Stefanie Yuen-Thio, a joint managing partner at TSMP Law Corporation, said that to build trust in the new system, the review board should be made public. “If for operational reasons, certain people (like the psychiatrists) cannot be (made public), then a description of their job and qualifications (could be provided),” she said.

She added that for cases where offenders are deemed unsuitable for release, the authorities should be required to provide yearly public updates on the number of cases where convicts are detained under Sepp, with relevant details.

“This can be anonymised, but there should be clearly enough information so that there is public accountability,” she said.

Mr Isaac said the mandated assessments that come with Sepp could provide some comfort to society. “This would suggest that a dangerous offender has been thoroughly assessed to be unlikely to reoffend again in the future, given that psychiatric and psychological testing was done prior to his or her release.”

Meanwhile, Mr Justin Ng Cho Yang, a senior associate at Kalco Law, said the new Sepp regime does not amount to detention without trial. That alone makes the proposed law fundamentally different from detention orders under the Internal Security Act 1960, the Criminal Law (Temporary Provisions) Act 1955 and the Misuse of Drugs Act, he said.

Instead, Sepp stands as a new sentencing option that judges can utilise after an offender is found guilty in a court of law.

Said Mr Ng: “In this manner, an offender who is sentenced to Sepp is afforded the same due process as any other accused person that goes through our criminal justice system.”

Assistant Professor Benny Tan from the National University of Singapore’s law school said there could be concerns that an offender’s risk of reoffending is overestimated, resulting in the offender being detained for an unwarranted extended period of time.

To prevent that, the assessment methodology will need to be rigorous and based on up-to-date scientific research and knowledge, he said.

He added: “I would also strongly recommend that the standard of proof beyond reasonable doubt be applied for the reviews to decide whether to continue to detain an offender sentenced to Sepp after the end of the minimum term.

“In other words, an offender sentenced to Sepp should be kept incarcerated only if the evidence shows beyond reasonable doubt that the offender still poses a threat to the public.”