This landmark decision by the High Court was handed down by a three judge bench presided over by the Chief Justice and including Justice of Appeal Chao Hick Tin and Justice See Kee Oon, the Presiding Judge of the State Courts. The underlying principles affecting National Service (“NS”) were set out and new sentencing benchmarks set with reference to the sentencing objectives of deterrence and retribution.
At issue in this case was the sentencing regime that applied to those who choose not to comply with the enlistment notice and who are termed ‘NS defaulters’. Mr. Tan Jee Ming and Mr. S. Balamurugan of Straits Law Practice LLC acted for two of the Respondents, who are brothers, Sakthikanesh s/o Chidambaram and Vandana Kumar s/o Chidambaram.
Sakthikanesh was born in Singapore on 23 March 1991, but both mother and son left for India when he was two-and-a-half months old. He grew up entirely in India, going through the education system from primary to tertiary level in India, and visited Singapore six times between 2000 and 2008.
The charge proceeded against Sakthikanesh was for his failure to comply with the Further Reporting Order (“FRO”), for a period of about five years and six months, and which is an offence under Section 33(a) of the Enlistment Act. A second charge was taken into consideration, for remaining outside Singapore without a Valid Exit Permit (“VEP”), for a period of about five years and nine months, which is an offence under Section 33(b) of the Enlistment Act.
Vandana was born in Singapore on 2 November 1993, but both mother and son left for India when he was one-and-a-half months old. He grew up entirely in India, similarly going through the education system from primary to tertiary level in India, and visited Singapore seven times between 2000 and 2009.
The charge proceeded against Vandana was for his failure to comply with the FRO for a period of about three years and four months, and which is an offence under Section 33(a) of the Enlistment Act. A second charge was taken into consideration, for remaining outside Singapore without a VEP for a period of about three years and 10 months, which is an offence under Section 33(b) of the Enlistment Act.
II. DECISION BY THE COURT OF THREE JUDGES
The Court set out a new sentencing benchmark based on the length of the period of default, as follows:
|Peg||Length of Period of Default||Starting Point for Sentence (Imprisonment Term)|
|1||2 to 6 years||2 to 4 months|
|2||7 to 10 years||5 to 8 months|
|3||11 to 16 years||14 to 22 months|
|4||17 to 23 (or more) years||24 to 36 months|
The threshold for a custodial sentence will be crossed once the length of the period of default crosses the two-year mark.
Within Peg 1, the starting point sentence will increase by half a month with each additional year of default, and at Peg 2, it increases by one month with each additional year of default. For Peg 3, it would increase by one-and-a-half months for each additional year of default, and finally for Peg 4, it would increase by two months for each additional year of default.
Notably, the Court instituted a higher sentencing start point when the period of default crosses from the 10th year to the 11th year mark. The Court held that the rate of increase in sentence should be amplified with longer periods of default, to reflect the decline in a person’s physical fitness with age and to create a progressive disincentive for NS defaulters to delay their return to resolve their offences. Further, the Court held that the statutory maximum punishment of 36 months’ imprisonment would be the starting point in the sentencing of a NS defaulter whose period of default was 23 years or longer, as he would have evaded the whole of his NS obligations including his reservist obligations.
The Court has reiterated that the key sentencing objective in the sentencing of NS defaulters is that of general deterrence, given the multiple facets of harm occasioned by NS defaulters, as their choosing to serve their NS obligations only when it is convenient for them harms the operational readiness of the armed forces amongst other factors. However, the Court has left open the possibility that “truly exceptional acts of valour or heroism”, such as saving another soldier’s life or volunteering for a dangerous mission, might qualify for some consideration. In setting out the new sentencing benchmark, the Court also noted that it was meant to assist and guide sentencing judges in the exercise of their sentencing discretion, and “not intended for slavish adherence”.
If you have any queries pertaining to this article, please feel free to contact Mr Tan Jee Ming at firstname.lastname@example.org, Mr S. Balamurugan at email@example.com or the Straits Law Director who usually attends to your matters.