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The Singapore Law Gazette

The Centrality of Proportionality: A Golden Thread in Sentencing

This article seeks to unpack the Proportionality principle. It also elaborates on the various ways that the Proportionality principle serves as a golden thread in sentencing.

Introduction

As seen from Lady Justice balancing the set of scales, fairness is at the heart of the law. Fairness finds expression in the Proportionality principle,1The Proportionality principle is a basic requirement of fairness: Seng Foo Building Construction Pte Ltd v PP (2017) 3 SLR 201 at (72), citing Andrew von Hirsch, Proportionality in the Philosophy of Punishment, (1992) 16 Crime and Justice 55 at p 55. which cuts across various areas of the law2For instance, a court has to consider the Proportionality principle when dealing with an application to adduce fresh evidence on appeal: Anan Group (Singapore) Pte Ltd v VTB Bank (Public Joint Stock Co) (2019) 2 SLR 341 at (59). Another example can be found in international humanitarian law, where the legal use of force in an armed conflict needs to be proportionate. This means that the incidental loss of civilian life, injury or damage must not be excessive in relation to the concrete and direct military advantage anticipated from the military operation: Additional Protocol I to the Geneva Conventions (12 August 1949) at Articles 51(5)(b) and 57(2)(a)(iii). This principle is generally accepted as customary international law that applies in both international and non-international armed conflicts. See also the Second Protocol to the Hague Convention of 1954 for the Protection of Cultural Property in the Event of Armed Conflict 1999 at Art 7, and the Protocol on Prohibitions or Restrictions on the Use of Mines, Booby-Traps and Other Devices as amended on 3 May 1996 (Protocol II as amended on 3 May 1996) at Art 3(8). For the Tallinn Manual on The International Law Applicable to Cyberwarfare (General Editor: Michael N. Schmitt, Cambridge University Press, 2013), see Rule 51..4See Professor Jeffrey Pinsler SC, Proportionality in Costs (2011) 23 SAcLJ 125. See also Asst. Professor Tan Zhong Xing, The Proportionality Puzzle in Contract Law: A Challenge for Private Law Theory?, (2020) 33(1) Canadian Journal of Law & Jurisprudence 215-244. For completeness, see former Chief Justice Chan Sek Keong’s article, Judicial Review – From Angst to Empathy (2010) 22 SAcLJ 469 at (25)-(27).

This article analyses the Proportionality principle as a golden thread running through sentencing in Singapore.3The Proportionality principle can also be found in our penal laws (see, for example, s 95, s 100, and Exception 1 to s 300 (grave and sudden provocation) of the Penal Code (Cap 224, 2008 Rev Ed)), as well as the threshold for appeals against sentence (i.e. manifestly excessive or manifestly inadequate) under s 377(1) and s 394 of the Criminal Procedure Code (Cap 68, 2012 Rev Ed). This article seeks to:

  1. Unpack the Proportionality principle; and
  2. Elaborate on the various ways that the Proportionality principle serves as a golden thread in sentencing.

Unpacking the Proportionality Principle in Sentencing

The Proportionality principle has been expressed in several different ways: the sentence must be commensurate with the gravity of the offence, must fit the crime, and a proportion must be maintained between the offence and the penalty: Muhammad Saiful bin Ismail v PP [2014] 2 SLR 1028 at [22].

Under the Proportionality principle, the sentence should be proportionate:

  1. In the context of the legislative scheme (Mehra Radhika v PP [2015] 1 SLR 96 at [28]-[29]);
  2. To the harm5For the harm caused by the crime, duty unpaid cigarettes and illegal drugs are instructive examples. Given that the quantity of drugs is an indicator of the potential harm that an accused person can cause, the sentence for an offence of drug importation or trafficking should, all things being equal, be proportional to the quantity of drugs involved: Suventher Shanmugam v PP (2017) 2 SLR 115 at (4) and (29), endorsing Vasentha d/o Joseph v PP (2015) 5 SLR 122 at (45)-(46).For the offence of unloading duty unpaid cigarettes, the proportionality to the harm caused by the crime is achieved by calibrating the sentence to starting points pegged generally to the quantity of duty unpaid tobacco products: Pang Shuo at (32). caused by the crime (PP v Pang Shuo [2016] 3 SLR 903 at [32]); and
  3. To the offender’s moral and legal culpability6Culpability is a measure of the degree of relative blameworthiness disclosed by an offender’s actions and is measured chiefly in relation to the extent and manner of the offender’s involvement in the criminal act: PP v Aw Tai Hock (2017) 5 SLR 1141 at (35) (see Andrew Ashworth, Sentencing and Criminal Justice (Cambridge University Press, 6th Ed, 2015) at (4.5)). (PP v Lim Yee Hua and another appeal [2018] 3 SLR 1106 at [47]).(see also Kow Keng Siong, Sentencing Principles in Singapore (Academy Publishing, Second Edition, 2019) at [06.091]-[06.093]).7See also PP v Law Aik Meng (2007) 2 SLR(R) 814 at (33).

Proportionality Principle as a Golden Thread in Sentencing

The Proportionality principle serves as a golden thread in sentencing.

Proportionality has been described as a principle that runs through the gamut of sentencing decisions: Mohamed Shouffee bin Adam v PP [2014] 2 SLR 998 at [47]. The High Court in Mohamed Shouffee bin Adam stated at [47]:

The notion of proportionate punishment is one of considerable vintage and features in most articulations of justice. In the ancient texts, one sees the demand for equivalence between offence and punishment expressed in terms of “eye for eye, tooth for tooth”. Chapter 20 of the Magna Carta (dating back to 1215 AD) states that “[a] freeman shall not be amerced for a trivial offence except in accordance with the degree of the offence”. The Bill of Rights, passed in 1689, states that “excessive bail ought not to be required, nor excessive fines imposed”. The Roman philosopher Cicero wrote: “[t]ake care that the punishment does not exceed the guilt” (De Officio Bk 1, ch 25, s 89, also cited in the High Court of Australia case Veen v The Queen (1979) 143 CLR 458 at 494). [emphasis added in bold]

The golden thread of the Proportionality principle in sentencing finds expression in the following 10 areas:

  1. Sentencing Range
  2. Counter-Balancing the Deterrence, Retribution, Prevention and Rehabilitation Principles
  3. Escalation Principle
  4. Ordinal and Cardinal Proportionality Principles
  5. Control and Outcome Materiality Principles
  6. Totality Principle, Aggregation Principle and the One Transaction Rule
  7. Corrective Training’s Two-Stage Framework
  8. Ill-Health as a Mitigating Factor
  9. Advanced Age as a Mitigating Factor
  10. Whether to Enhance a Custodial Sentence in Lieu of Caning

(1) Sentencing range

Where a sentencing framework is in play, the general practice is that the court first identifies the appropriate sentencing range on the basis of the harm caused and the offender’s culpability. Thereafter, having regard to other sentencing factors, including outcome-focused sentencing objectives, the court chooses an appropriate sentence within that range. The range operates as a margin of reasonableness which ensures that the eventual sentence imposed remains broadly proportionate to the crime: PP v ASR [2019] 1 SLR 941 at [133]. The use of sentencing ranges rather than fixed starting points affords courts with greater flexibility to arrive at a proportionate sentence: Ng Kean Meng Terence v PP [2017] 2 SLR 449 at [37(d)].

For instance, while the Three-Judge Panel in Mao Xuezhong v PP [2020] SGHC 99 did not expressly discuss proportionality, the reasoning adopted and the harm-culpability sentencing matrix (at [64]) is consistent with a proportionality-based approach. Given the proportionate scaling up or down according to the assessed level of harm and culpability and adjusting for specific aggravating and mitigating factors, the Proportionality principle underlies matrix-style sentencing frameworks.

(2) Counter-balancing the deterrence, retribution, prevention and rehabilitation principles

Proportionality also prevents an offender from simply being used as a means to an end. The Proportionality principle serves as a counterweight to the sentencing principles of deterrence, retribution, prevention and rehabilitation: Vasentha d/o Joseph at [36] and PP v Low Ji Qing [2019] 5 SLR 769 at [80].

In essence, proportionality is a check – pulling back on the extent to which the other sentencing considerations weigh into the calculus.8Low Ji Qing at (80). For instance, although a lifetime ban from driving would better serve the objectives of deterrence and prevention than a ban of a shorter duration, courts do not routinely impose lifetime bans: Muhammad Saiful bin Ismail v PP [2014] 2 SLR 1028 at [21]-[22].

However, proportionality as a counterweight can also act in the opposite direction. Where the harm occasioned by the offence and the offender’s culpability is sufficiently grave, retribution may prevail against the needs of rehabilitation: Lim Ghim Peow v PP [2014] 4 SLR 1287 at [39] and Ng Jun Xian v PP [2017] 3 SLR 933 at [36].

This understanding of proportionality as a check coheres with a sentencing court’s role in balancing seemingly “incommensurate considerations”.9Low Ji Qing at (82). The Proportionality principle is not in conflict with, but in fact complements the other sentencing principles.10Low Ji Qing at (82).

(3) Escalation principle

The escalation principle is a reformulation of the longstanding principle that specific deterrence may justify a longer term of imprisonment being imposed on a persistent offender in light of his antecedents, if these reflected a tendency for repeat offending or a marked proclivity toward criminal behaviour.11Tan Kay Beng v PP (2006) 4 SLR(R) 10 at (14)-(16). Low Ji Qing at (56). See also Sim Yeow Kee v PP and another appeal (2016) 5 SLR 936 at (99(a)).

The escalation principle must be applied alongside the Proportionality principle. Hence, before a court imposes an uplift on an accused person’s previous sentences, there must be a careful comparison with the accused person’s previous offending: Low Ji Qing at [74].12See also Loo Pei Xiang Alan v PP (2015) 5 SLR 500 at (40).

While specific deterrence may sometimes justify a stiffer sentence, the law is clear that this cannot be given such weight as to lead to the imposition of a penalty which is disproportionate to the gravity of the instant offence. Were it otherwise, the offender would in effect be punished a second time for his original offence.13Low Ji Qing at (74).

An index offence does not need to be of equivalent severity to the last antecedent (for example, in property offences, be of equivalent value) before a heavier sentence might be imposed by virtue of re-offending. But there may be situations where the index offence is much less egregious than the accused person’s last antecedent. An equivalent or heavier sentence could be disproportionate then, since it might be based on the wrong factual basis.14Low Ji Qing at (75).

Conversely, where the index offence is much more egregious, then proportionality may in fact demand a significantly heavier sentence to take account of the marked escalation in the accused person’s offending. What is essential is for the sentencing court to compare the gravity of the antecedent and the index offences, and consider how this should affect the sentence to be imposed for the index offence.15Low Ji Qing at (75).

The Proportionality principle also applies in comparing the severity of the sentence imposed for the index offence and the gravity of the index offence in the context of the offender’s circumstances.16Low Ji Qing at (77). For example, in Sim Yeow Kee at [97], the 3-Judge Panel had observed that the sentence in Tan Ngin Hai v PP [2001] 2 SLR(R) 152 of eight years’ preventive detention was wholly disproportionate to the index offence involving the theft of $1.10.

(4) Ordinal and cardinal proportionality principles

In considering the harm caused and the culpability of the offender, ordinal and cardinal proportionality must be considered (see, for example, PP v Holman Benjamin John [2019] 3 SLR 824 at [41] and Andrew von Hirsch, Proportionality in the Philosophy of Punishment, (1992) 16 Crime and Justice 55 at 75-85).

Under ordinal proportionality, the sentence must adequately reflect the relative seriousness of the present offence as reflected in the maximum punishments provided as against the other related offences in the statute: PP v Tan Thian Earn [2016] 3 SLR 269 at [37] (see also Andrew von Hirsch and Andrew Ashworth, Proportionate Sentencing: Exploring the Principles (Oxford University Press, 2005) at 137-141).

Under cardinal proportionality, the sentence must reflect the relative seriousness of the present offence as against the full range of possible offences under that offence provision.

In other words, the court must have regard to the full spectrum of sentences, i.e. the entire range of punishments statutorily provided for when deciding what sentence to impose: Poh Boon Kiat v PP [2014] 4 SLR 892 at [60]. This exercise may be performed in two parts. First, the court should consider what the offence covers, viz. all possible instances of conduct proscribed by the particular provision. Second, the court has to determine where the present offence falls along the spectrum of possible offending: ie, the relative severity of the present offence as against the full range of possible offences that could fall within the provision.17Tan Thian Earn at (45).

(5) Control and outcome materiality principles

Two fundamental principles underlie the Proportionality principle – the control principle and the outcome materiality principle: Guay Seng Tiong Nickson v PP [2016] 3 SLR 1079 at [41], citing PP v Hue An Li [2014] 4 SLR 661 at [68].

The control principle states that no man should be held criminally accountable for that which is beyond his control, while the outcome materiality principle is the brute principle that moral (and indeed legal) assessments often depend on factors that are beyond an actor’s control.18Guay Seng Tiong Nickson at (41). Culpability (control principle) and harm (outcome materiality principle) may operate in tension with regard to the Proportionality principle.

The outcome materiality principle trumps the control principle in the context of criminal rashness (PP v Lim Choon Teck [2015] 5 SLR 1395 at [35]) and criminal negligence (Hue An Li at [67]-[75]) such that the full extent of harm caused may be taken into account in sentencing. However, the extent of harm is not determinative. It is but one factor that must be taken into account in determining the appropriate sentence to be meted out.19Hue An Li at (76). The extent of the offender’s rashness or negligence and the presence of aggravating and mitigating factors also feature heavily in the sentencing calculus.

(6) Totality principle, aggregation principle and the one transaction rule

The totality principle is a principle of limitation and a manifestation of the requirement of proportionality that runs through the gamut of sentencing decisions: PP v Raveen Balakrishnan [2018] 5 SLR 799 at [73] citing Mohamed Shouffee bin Adam at [47].

The totality principle is generally to be applied at the end of the sentencing process, and it requires the sentencing judge to take a last look at all the facts and circumstances and be satisfied that the aggregate sentence is sufficient and proportionate to the offender’s overall criminality.20Mohamed Shouffee bin Adam at (58). Seng Foo Building Construction Pte Ltd at (75). Raveen Balakrishnan at (73). Gan Chai Bee Anne v PP (2019) 4 SLR 838 at (20).

Specifically, the totality principle has two limbs: first, to examine whether the aggregate sentence is substantially above the normal level of sentences for the most serious of the individual offences committed, and second, to examine whether the effect of the aggregate sentence on the offender is crushing and not in keeping with his past record and future prospects: Mohamed Shouffee bin Adam at (54) and (57), and Raveen Balakrishnan at (73).

The court should bear in mind the aggregation principle which provides that the totality principle ordinarily applies with greater force in cases that involve longer aggregate sentences.21Raveen Balakrishnan at (79)-(80) and (98(c)). For instance, if the individual sentences are each of several years or even decades, the concern over proportionality would weigh more heavily on the sentencing judge’s mind when assessing whether the aggregate sentence offends the totality principle.22See also Muhammad Sutarno bin Nasir v PP (2018) 2 SLR 647 at (24). Based on the aggregation principle, sentencing courts in applying the totality principle should bear in mind that the longer the aggregated sentence, the greater the risk of a disproportionate sentence.23Raveen Balakrishnan at (80).

If an aggregate sentence is considered excessive, the sentencing judge may opt for a different combination of sentences to run consecutively or adjust the individual sentences.24Mohamed Shouffee bin Adam at (59). Seng Foo Building Construction Pte Ltd at (75). Raveen Balakrishnan at (73).

The totality principle also applies to multiple fines, where the totality principle may allow for the adjustment of individual fines so that the cumulative fine is sufficient and proportionate to the offender’s overall criminality: Seng Foo Building Construction Pte Ltd at [4], [63], [72], and [80].25For multiple fines, the sentencing court needs to calibrate carefully the in-default imprisonment terms. This is because the totality principle may be infringed if the sentencing court overlooks the fact that in-default imprisonment terms run consecutively under s 319(1)(b)(iv) of the Criminal Procedure Code (Cap 68, 2012 Rev Ed).

In sentencing an offender for multiple offences involving fines, the one-transaction rule does not apply. However, the totality principle applies and the ultimate concern that underlies the application of the one-transaction rule, which is proportionality, can be dealt with within the framework of the totality principle26Seng Foo Building Construction Pte Ltd at (63). (see also Ho Hsi Ming Shawn, The Versatility of the Totality Principle, Singapore Law Gazette (March 2020)).

(7) Corrective Training’s two-stage framework

The formative arc of Corrective Training (CT) was traced in Sim Yeow Kee v PP [2016] 5 SLR 936, which laid out a framework for CT.

The two-stage framework in Sim Yeow Kee is as follows:

  1. First Stage: Whether the offender qualifies for the CT regime under s 304(1) of the Criminal Procedure Code (Cap 68, 2012 Rev Ed).
  2. Second Stage: Whether it is expedient to sentence the offender to CT with a view to his reformation and the prevention of crime.27See also PP v Ong Say Kiat (2017) 5 SLR 946 at (10)-(18).

For the second stage, there is a three-step process:

  1. Step 1: What are the likely imprisonment sentences?
  2. Step 2: Would the offender be placed on the Mandatory Aftercare Scheme (MAS)?
  3. Step 3: Would a sentence of CT be unduly disproportionate?

For the balancing exercise in Sim Yeow Kee, two considerations (whether CT would be unduly disproportionate and the rehabilitative benefits of the MAS) bear weight to a greater degree when a shorter term of CT is contemplated.28Sim Yeow Kee at (17(d)) and (105)-(106). The Three-Judge Panel in Sim Yeow Kee recognised that its sentencing framework is likely to reduce the scope for imposing CT sentences.29Sim Yeow Kee at (105).

(8) Ill-health as a mitigating factor

There are cases where incarceration would cause an offender a “greater and disproportional impact” because of his ill-health than it would on an ordinary person who is not suffering from the same medical condition.30The question is very much one of whether the offender faces far greater suffering than the usual hardship in serving an imprisonment term. Generally, it is constituted by a risk of significant deterioration in health or a significant exacerbation of pain and suffering. Where the impact on the offender does rise to such a sufficiently serious level, it causes the sentence that is otherwise appropriate with regard to the offence committed, to be out of line on the ground of proportionality. Consequently, the sentence ought to be mitigated, because other things being equal, offenders ought to be subject to the same impact: Chew Soo Chun at (34). The Proportionality principle will apply in such cases such that the court will need to consider how to adjust the sentence with a view to equalising the burden, even though the court cannot and will not exercise judicial mercy31Judicial mercy has been exercised in two situations. First, where the offender was suffering from terminal illness. Second, where the offender was so ill that an imprisonment sentence would carry a high risk of endangering his life. It will, in principle, also include other circumstances that are equally grave: Chew Soo Chun at (22) and (27).: Chew Soo Chun v PP [2016] 2 SLR 78 at [29].

For conceptual clarity, it is important to bear in mind the distinction between the exercise of judicial mercy and the consideration of ill-health as a mitigating factor as the two questions are founded on distinct conceptual bases. Judicial mercy is exercised when the court is moved by humanitarian impulses in a case – the court is not concerned so much about correlating a length of a custodial sentence with the seriousness of the offender’s wrongdoing, but about alleviating the effects of a custodial sentence on the basis that it is humane to do so in the offender’s particular circumstances. Indeed, judicial mercy has a tendency to reduce a sentence far beyond what a mitigating factor can do. Accordingly, judicial mercy falls outside the framework of proportionality.32Chew Soo Chun at (41).

Put differently, the Proportionality principle is not consistent with the basic rationale for the exercise of judicial mercy. Proportionality implicitly preserves a link between culpability and punishment, but the conceptual basis for judicial mercy, which is humanity, does not.33Chew Soo Chun at (44). If proportionality is subsumed within the rubric of judicial mercy, it constrains the reduction of the sentence, and that could conflict with the sentence humanity would have commanded.34Chew Soo Chun at (44).

In contrast, one of the rationales for invoking ill-health as a mitigating factor is proportionality. Ill-health may cause a custodial sentence to have such impact on the offender that it is out of proportion to the gravity of the offence. And where it does so, it may be raised as a mitigating factor in order to reduce the length of the custodial sentence so that the sentence in fact imposed will fall within the ambit of proportionality.35Chew Soo Chun at (41).

Where ill-health is successfully invoked as a mitigating factor, the discount in sentence will not be as substantial as in a case where judicial mercy is exercised, but will only be to equalise the punishment.36Chew Soo Chun at (36).

(9) Advanced age as a mitigating factor

The advanced age of an offender is not generally a factor that warrants a sentencing discount. However, there is no question that imposing a substantial custodial term deprives the elderly of a larger fraction of their expectation of life. This concern for the overall proportionality of punishment, and not the age of the offender per se, is the real reason for affording leniency on account of advanced age. As is the case for youthful offenders, the mitigating value of this must be balanced against the need to ensure that older offenders are still punished appropriately, in line with the gravity of the offence committed: Ng Kean Meng Terence at [65(c)].

(10) Whether to enhance a custodial sentence in lieu of caning

In deciding whether to enhance an exempted offender’s sentence in lieu of caning, the appropriate starting point is that no enhancement should be ordered unless there are grounds to do so. Possible grounds for such enhancement include the need to compensate for the deterrent and/or retributive effect of caning that is lost by reason of the exemption, and the need to maintain parity among co-offenders’ sentences.

The court should also consider whether there are factors present which militate against enhancing an offender’s sentence, including the importance of proportionality: Amin bin Abdullah v PP [2017] 5 SLR 904 at [87].

In this regard, the court should have regard to whether enhancing the offender’s sentence will cause the aggregate sentence to be disproportionate to the totality of the offender’s criminal behaviour. If the court is of the view that enhancement would cause the aggregate sentence to be disproportionate, it may either opt not to enhance the sentence at all, or to enhance the sentence to a lesser extent.37Amin Bin Abdullah at (82).

Conclusion

The touchstone of fairness is the Proportionality principle. In the final analysis, the Proportionality principle serves as a golden thread in sentencing and lends itself well to fashioning a fair sentence.

The author would like to thank District Judge Ronald Gwee for his very helpful comments and suggestions. All errors remain the author’s own. All views expressed in this article are those of the author and do not represent the views of his organisation.

Endnotes   [ + ]

1.The Proportionality principle is a basic requirement of fairness: Seng Foo Building Construction Pte Ltd v PP (2017) 3 SLR 201 at (72), citing Andrew von Hirsch, Proportionality in the Philosophy of Punishment, (1992) 16 Crime and Justice 55 at p 55.
2.For instance, a court has to consider the Proportionality principle when dealing with an application to adduce fresh evidence on appeal: Anan Group (Singapore) Pte Ltd v VTB Bank (Public Joint Stock Co) (2019) 2 SLR 341 at (59). Another example can be found in international humanitarian law, where the legal use of force in an armed conflict needs to be proportionate. This means that the incidental loss of civilian life, injury or damage must not be excessive in relation to the concrete and direct military advantage anticipated from the military operation: Additional Protocol I to the Geneva Conventions (12 August 1949) at Articles 51(5)(b) and 57(2)(a)(iii). This principle is generally accepted as customary international law that applies in both international and non-international armed conflicts. See also the Second Protocol to the Hague Convention of 1954 for the Protection of Cultural Property in the Event of Armed Conflict 1999 at Art 7, and the Protocol on Prohibitions or Restrictions on the Use of Mines, Booby-Traps and Other Devices as amended on 3 May 1996 (Protocol II as amended on 3 May 1996) at Art 3(8). For the Tallinn Manual on The International Law Applicable to Cyberwarfare (General Editor: Michael N. Schmitt, Cambridge University Press, 2013), see Rule 51.
3.The Proportionality principle can also be found in our penal laws (see, for example, s 95, s 100, and Exception 1 to s 300 (grave and sudden provocation) of the Penal Code (Cap 224, 2008 Rev Ed)), as well as the threshold for appeals against sentence (i.e. manifestly excessive or manifestly inadequate) under s 377(1) and s 394 of the Criminal Procedure Code (Cap 68, 2012 Rev Ed).
4.See Professor Jeffrey Pinsler SC, Proportionality in Costs (2011) 23 SAcLJ 125. See also Asst. Professor Tan Zhong Xing, The Proportionality Puzzle in Contract Law: A Challenge for Private Law Theory?, (2020) 33(1) Canadian Journal of Law & Jurisprudence 215-244. For completeness, see former Chief Justice Chan Sek Keong’s article, Judicial Review – From Angst to Empathy (2010) 22 SAcLJ 469 at (25)-(27).
5.For the harm caused by the crime, duty unpaid cigarettes and illegal drugs are instructive examples. Given that the quantity of drugs is an indicator of the potential harm that an accused person can cause, the sentence for an offence of drug importation or trafficking should, all things being equal, be proportional to the quantity of drugs involved: Suventher Shanmugam v PP (2017) 2 SLR 115 at (4) and (29), endorsing Vasentha d/o Joseph v PP (2015) 5 SLR 122 at (45)-(46).For the offence of unloading duty unpaid cigarettes, the proportionality to the harm caused by the crime is achieved by calibrating the sentence to starting points pegged generally to the quantity of duty unpaid tobacco products: Pang Shuo at (32).
6.Culpability is a measure of the degree of relative blameworthiness disclosed by an offender’s actions and is measured chiefly in relation to the extent and manner of the offender’s involvement in the criminal act: PP v Aw Tai Hock (2017) 5 SLR 1141 at (35) (see Andrew Ashworth, Sentencing and Criminal Justice (Cambridge University Press, 6th Ed, 2015) at (4.5)).
7.See also PP v Law Aik Meng (2007) 2 SLR(R) 814 at (33).
8.Low Ji Qing at (80).
9.Low Ji Qing at (82).
10.Low Ji Qing at (82).
11.Tan Kay Beng v PP (2006) 4 SLR(R) 10 at (14)-(16). Low Ji Qing at (56). See also Sim Yeow Kee v PP and another appeal (2016) 5 SLR 936 at (99(a)).
12.See also Loo Pei Xiang Alan v PP (2015) 5 SLR 500 at (40).
13.Low Ji Qing at (74).
14.Low Ji Qing at (75).
15.Low Ji Qing at (75).
16.Low Ji Qing at (77).
17.Tan Thian Earn at (45).
18.Guay Seng Tiong Nickson at (41).
19.Hue An Li at (76).
20.Mohamed Shouffee bin Adam at (58). Seng Foo Building Construction Pte Ltd at (75). Raveen Balakrishnan at (73). Gan Chai Bee Anne v PP (2019) 4 SLR 838 at (20).

Specifically, the totality principle has two limbs: first, to examine whether the aggregate sentence is substantially above the normal level of sentences for the most serious of the individual offences committed, and second, to examine whether the effect of the aggregate sentence on the offender is crushing and not in keeping with his past record and future prospects: Mohamed Shouffee bin Adam at (54) and (57), and Raveen Balakrishnan at (73).

21.Raveen Balakrishnan at (79)-(80) and (98(c)).
22.See also Muhammad Sutarno bin Nasir v PP (2018) 2 SLR 647 at (24).
23.Raveen Balakrishnan at (80).
24.Mohamed Shouffee bin Adam at (59). Seng Foo Building Construction Pte Ltd at (75). Raveen Balakrishnan at (73).
25.For multiple fines, the sentencing court needs to calibrate carefully the in-default imprisonment terms. This is because the totality principle may be infringed if the sentencing court overlooks the fact that in-default imprisonment terms run consecutively under s 319(1)(b)(iv) of the Criminal Procedure Code (Cap 68, 2012 Rev Ed).
26.Seng Foo Building Construction Pte Ltd at (63).
27.See also PP v Ong Say Kiat (2017) 5 SLR 946 at (10)-(18).
28.Sim Yeow Kee at (17(d)) and (105)-(106).
29.Sim Yeow Kee at (105).
30.The question is very much one of whether the offender faces far greater suffering than the usual hardship in serving an imprisonment term. Generally, it is constituted by a risk of significant deterioration in health or a significant exacerbation of pain and suffering. Where the impact on the offender does rise to such a sufficiently serious level, it causes the sentence that is otherwise appropriate with regard to the offence committed, to be out of line on the ground of proportionality. Consequently, the sentence ought to be mitigated, because other things being equal, offenders ought to be subject to the same impact: Chew Soo Chun at (34).
31.Judicial mercy has been exercised in two situations. First, where the offender was suffering from terminal illness. Second, where the offender was so ill that an imprisonment sentence would carry a high risk of endangering his life. It will, in principle, also include other circumstances that are equally grave: Chew Soo Chun at (22) and (27).
32.Chew Soo Chun at (41).
33.Chew Soo Chun at (44).
34.Chew Soo Chun at (44).
35.Chew Soo Chun at (41).
36.Chew Soo Chun at (36).
37.Amin Bin Abdullah at (82).

District Judge, State Courts of Singapore