Different takes on guidelines

Chief Justice Sundaresh Menon speaking at Mass Call on Aug 26, 2016 at the Supreme Court auditorium.
Chief Justice Sundaresh Menon speaking at Mass Call on Aug 26, 2016 at the Supreme Court auditorium. PHOTO: ST FILE

At the first sentencing conference in 2014, Judge of Appeal Chao Hick Tin described the establishment of a sentencing council as being "by the judges, for the judges".

The formation of the council, made up entirely of judges and aimed at introducing structure to the development of sentencing guidelines, was announced during the same conference by Chief Justice Sundaresh Menon.

In his opening address, CJ Menon said the council intended, among other things, to promote the development of a methodology and framework by identifying areas in which the issuance of judgments with sentencing guidelines might promote coherence or consistency in sentencing.

Appeals in these areas may then be assigned for hearing before a specially designated panel of three judges, with a view to their considering if guideline judgments should be issued.

This is unlike the sentencing panels of other jurisdictions, in which comprehensive sentencing guidelines are developed by independent non-judicial institutions.

For instance, the Sentencing Council of England and Wales is an independent, non-departmental public body of the British Ministry of Justice.

It develops sentencing guidelines and monitors their use, assesses the impact of guidelines on sentencing practice, and may, when required by the government, consider the impact of policy and legislative proposals relating to sentencing.

The English council is chaired by a Court of Appeal judge.

Members include judges, lawyers, a chief constable, the chief executive of a charity for crime victims, the chief executive of a probation trust, a professor of criminology, and the director of public prosecutions.

After issuing draft guidelines, the council consults various parties, including the Lord Chancellor and the Justice Select Committee of the House of Commons, before issuing definitive guidelines.

To date, it has published 15 definitive guidelines on areas including assault, drug offences, dangerous dogs, robbery, environmental offences, and reduction in sentence for a guilty plea.

In the United States, the Sentencing Commission is an independent agency in the judicial branch that was created as part of the Sentencing Reform Act of 1984, enacted in response to widespread disparity in federal sentencing.

It produces the federal sentencing guidelines, which assign levels to different offences, with a points system based on an offender's criminal history.

A sentencing judge first determines the offence level and makes adjustments based on the circumstances of the case. Next, the judge calculates the offender's criminal history points.

With these two factors, the judge refers to a sentencing table to find the sentencing range.

The guidelines are now considered advisory only, after the US Supreme Court, in 2005, struck down provisions of the law which made them mandatory.

Selina Lum

A version of this article appeared in the print edition of The Straits Times on September 14, 2017, with the headline 'Different takes on guidelines'. Print Edition | Subscribe