Justice Vincent Hoong: Closing Remarks delivered at the Sentencing Conference 2022

SENTENCING CONFERENCE 2022: CLOSING REMARKS

Sentencing Frameworks: Instructive, Communicative, Consistent Outcomes

Distinguished Speakers and Guests, Ladies and Gentlemen,

1. We have come to the close of a truly fruitful conference. Over these two days, we have had the privilege of learning from an outstanding array of speakers and panellists. I am sure you would agree with me that their analysis and insights provided much food for thought and provoked stimulating discussion.
   
   
2. Justice Felix Frankfurter of the Supreme Court of the United States once observed that “[t]he Court’s authority – possessed of neither the purse nor the sword – ultimately rests on sustained public confidence in its moral sanction.”⁽¹⁾ In my view, one of the most prominent manifestations of the Court’s moral sanction is in the sentence it imposes for a criminal offence. This was so in the past and is no less true today. As the Honourable Chief Justice highlighted in his Keynote Address, the sentencing discretion of our courts has increased considerably over the years and its exercise has become central to the judicial role in criminal cases. Moreover, information about the Court’s sentencing decisions has become more widely accessible than ever, giving rise to enhanced public scrutiny and increasingly lively discourse. Sentencing therefore plays a dominant role in sustaining public confidence in the judiciary and its administration of justice. This in turn is crucial to the wider goal of preserving the Rule of Law.
   
   
3. During this conference, we had the opportunity to discuss two tools that may assist the court in achieving the delicate balance which sentencing demands.
   
   
4. The first is the use of sentencing frameworks. The broad consensus was that sentencing frameworks serve as a useful tool to assist the court in striking the right equilibrium between consistency in sentencing across like cases and a condign outcome fitting the justice of the case. We also discussed how it will not always be desirable nor appropriate to lay down sentencing frameworks. Neither should sentencing frameworks be applied in a formulaic or mechanistic way. As both the Chief Justice and Justice Steven Chong took pains to emphasise, sentencing is more art than science and the use of sentencing frameworks should not supplant the court’s duty to evaluate each case to ensure that the sentence fits both the offence and the offender.
   
   
5. Please allow me to touch on three key points on the use of sentencing frameworks:
   
   (a) The first is how sentencing frameworks foster greater transparency by giving offenders and Defence counsel a valuable reference point from which to decide whether to plead guilty, or at least to approach the Prosecution on the sentence being sought. Deputy A-G Hri Kumar Nair’s suggestion that the charge sheet incorporates information on the applicable sentencing frameworks, as set out in guideline judgments, is an interesting one which merits consideration. This should better inform an accused person who is deciding on his plea. If it leads to an earlier plea of guilt, it will result in valuable resource savings. 
   
   (b) The second point, which was the subject of some debate, is whether judges in the State Courts should develop sentencing frameworks. From a strict stare decisis perspective, sentencing guidelines should be issued only by appellate courts as they are authoritative and binding on the lower courts. Nevertheless, I think that there is scope for sentencing judges in the State Courts to devise sentencing frameworks, not as authoritative guidelines to be applied across the board to prospective cases involving the offence in question, but as a methodology to derive and explain how the appropriate sentence was arrived at in the specific case before the judge. Indeed, the formulation of sentencing frameworks as an analytical tool is something that both the Prosecution and the Defence can employ (and have employed) to assist the court in arriving at an appropriate sentence. I found the techniques and considerations shared by District Judge Kow for devising a sentencing framework most helpful. Here, I should also caveat that the formulation of sentencing frameworks should be done only in appropriate cases, and this of course remains a matter of judgment. 
   
   (c) The third and final point is how the incremental and court-led approach to developing sentencing frameworks, which stems from a longstanding common law tradition, will co-exist with the non-binding but persuasive guidelines issued by the Sentencing Advisory Panel ("SAP”). In areas of sentencing for offences for which there are no appellate court pronouncements, the SAP’s proactive publication of guidelines will certainly help to promote a holistic approach to sentencing that takes on board the vital inputs of key stakeholders within the criminal justice system. I believe that all of us here look forward to the fruits of the SAP’s work. 
   
   
6. I now turn to consider the second tool, namely, technology and, more specifically, Artificial Intelligence (“AI”). As you have heard, there was a lively discussion on its potential role in sentencing, as well as the practical and ethical concerns that accompany the use of AI in sentencing:
   
   (a) There was broad agreement that AI should not be used to supplant human judges in sentencing, which remains very much a human process. As Professor Roberts highlighted, and I respectfully agree, a necessary feature of sentencing entails a hearing in a public forum, conducted by human beings. However, AI could play a role in providing relevant information to enhance the rigour of the sentencing process. For example, it could help with searching and classifying sentencing precedents, identify similarities, differences, and other patterns across this body of precedents, as well as provide statistical analysis of the same, and identify relevant factors and anomalous outcomes.    
   
   (b) However, the use of AI in this role is predicated on the existence of a comprehensive database containing information on not only the sentences imposed but also the offences involved and the factual matrices undergirding these offences. There are practical challenges in ensuring that the data involved is reliable and, more importantly, free from bias. 
   
   (c) Much of the criticism levelled at AI tools have been the lack of transparency. The offender does not have the opportunity to test the data and assumptions that underlie the algorithms. Perhaps this opacity can be alleviated by giving offenders access to the underlying data and assumptions. However, some would say that the process still remains a black box and that further safeguards are needed to ensure that the algorithms are working as they should.
   
   
7. Like many of you, I share the Chief Justice’s view that the use of AI in criminal cases requires careful consideration. Other jurisdictions like the US, Malaysia, and the People’s Republic of China, which Assistant Professor Chen has shared, have made great strides in this area. We can learn from their experiences and draw upon their best practices, when forging a path for our local context.
   
   
8. Finally, it is the duty of a sentencing judge to ensure that the sentence also fits the offender. Cases involving youthful offenders and offenders with mental health issues present unique considerations which the sentencing judge, prosecution, and defence counsel must be alive to. For such offenders, the goal of rehabilitation often assumes relatively greater eminence. Alternative sentences which promote rehabilitation, when employed appropriately and with proper resourcing, may be more effective in reducing recidivism. That said, as Deputy A-G Tai and Mr Sabapathy pointed out, considerations of rehabilitation must be proportionate to the seriousness of the offence and balanced against public interest considerations such as sending the right signal to the public.
   
   
9. The engaging presentations and experiential sessions by various practitioners in this area have provided valuable insight into how alternative sentencing options like Probation, Mandatory Treatment Orders and Community Based Sentences are administered to achieve the desired rehabilitative outcomes. The key takeaway is that sentencing does not simply end with the pronouncement of the sentence. Rather, it is an ongoing process involving numerous stakeholders, where efforts to address underlying issues and reintegrate offenders into society continue even after offenders have served their sentence. I also encourage lawyers to avail themselves of the resources provided by the State Courts for cases involving youthful and mentally disordered offenders, like the Community Court Conferences mentioned by Ms Ngiam.
   
   
10. In closing, I thank our distinguished speakers and panellists who have taken time from their busy schedules to share their knowledge, experience and insights.Let me also extend my deepest gratitude to the State Courts’ organising committee and the team from the Singapore Academy of Law for organising this conference. You have worked tirelessly for many months, from conceptualisation to execution, to make this conference a reality. Finally, thank you all very much for joining us today.
    
    
11. I wish you a pleasant evening and a wonderful week ahead!

⁽¹⁾ Baker v Carr, 369 U.S. 186 (1962).


Topic: Speech, Speeches