Community Sentencing and Other Rehabilitative Options

Mr Speaker, Sir, it is my honour to be the first Member to speak on an Adjournment Motion under your tenure as our Speaker. I join the hon Members who spoke before me to congratulate you on your election as Speaker and wish you well in the discharge of your solemn duties. I also have some sympathy for the hon Member for Sembawang, Mr Vikram Nair, and the hon Member for Aljunied, Ms Sylvia Lim, because they were balloted out of the right to speak on this Adjournment Motion. I know the feeling because I was balloted out of the right to speak on this topic last month.

Before I go on to my speech, let me declare my interest as a lawyer in private practice. I wish to address this House today on the following matters.

Firstly, to highlight the need for more community-based support for offenders charged in Court who are found to have more challenging psychiatric illnesses and are, therefore, deemed not eligible for community-based sentencing, and offenders in respect of whom decisions have been made not to prosecute on account of their psychiatric condition to ensure that they do not re-offend.

Secondly, to seek a review of offences currently punishable with prescribed sentences to identify those which would be suitable for community-based sentencing.

Courts have often found it challenging to impose sentences on offenders diagnosed with psychiatric conditions. Whilst, generally, the need for rehabilitation is a key consideration for mentally disordered persons, it has to be balanced against the countervailing need for retribution and deterrence at the same time.

The 2010 amendments to the Criminal Procedure Code to expand the community-based sentencing regime was a milestone in strengthening rehabilitation as an option for offenders in right cases. As explained by the hon Minister of Law in this House in 2010, community-based sentencing gives more flexibility to the Courts in deciding an appropriate sentence for the offender in question. Not every offender should be put in prison. Community-based sentencing targets offenders traditionally viewed by the Courts to be on the rehabilitation end of the spectrum, such as persons with specific and relatively minor mental conditions. For such cases, it is appropriate to harness the resources of the community.

I am heartened by the approach we have taken thus far to deal with such offenders. However, with the experience we have gained from the community-based sentencing regime over the past seven years, perhaps it is time we consider extending the community-based sentencing regime to offenders who suffer from more challenging mental disorders.

I have come to know of one such offender professionally through a Court-assigned pro bono case. Mr Tan is a middle-aged man who has low intelligence quotient (IQ) and a gaming addiction. He comes from a poor family. His father passed away some years back. His mother, a hawker centre cleaner, looks after him and his younger sister. He was charged with the offence of stealing coins from a vending machine to feed his gaming addiction. He has similar theft convictions in the past. He underwent psychiatric evaluation to determine the suitability of a mandatory treatment order and was assessed as suffering from anti-social personality disorder. Unfortunately for him, his prognosis was guarded. Mr Tan was deemed not suitable for a mandatory treatment order (MTO), not because he is not at all treatable but because it will involve a huge multidisciplinary effort to effect a turnaround in his condition. For example, it would be contemplated that he would have to be put in sheltered care or be enrolled in pro-social programmes like anger and stress management.

To give Members of this House a sense of how such patients need to be managed, please allow me to quote the following excerpt from the United Kingdom (UK) Code of Practice for the Mental Health Act:

"Generally, treatment approaches for personality disorder need to be relatively intense and long-term, structured and coherent. Sustainable long-term change is more likely to be achieved with the voluntary engagement of the patient. People with personality disorders may take time to engage and develop motivation for such longer-term treatment. But even patients who are not engaged in that kind of treatment may need other forms of treatment, including nurse and specialist care, to manage the continuing risks posed by their disorders."

So, we see, they need significantly more than just psychiatric help.

As the Court, under the current Criminal Procedure Code provisions, was unable to consider imposing an MTO in the event a psychiatrist does not support it, it proceeded to consider Mr Tan's suitability for conditional discharge under the Probation of Offenders Act. What we explored here was his voluntary participation in a programme that was put up with community support. This programme would have allowed him to be economically active and engaged with the community. With the assistance of Bizlink, a voluntary welfare organisation (VWO), and a counsellor with the Marine Parade Family Service Centre, Mr Tan started learning how to work for the first time in his life. He made some progress initially. Unfortunately, due to the influence of some others, he started re-offending. He dismantled a bicycle wheel from a bicycle and stole it, leaving the bicycle behind, as a favour to a friend. Later, he punched a person in his face for intervening in a quarrel between him and his mother at a hawker centre. In the end, the Court decided he had to be punished. He was sentenced to six months' jail for his offences.

This is not the end of the matter for his family. His sister also suffers from a psychiatric condition and was a co-accused in one of the offences Mr Tan committed. She had only just started offending. She is not receptive to counselling. She needs help before her situation becomes as serious as her brother's.

Whilst our current regime allows for community sentencing, such as an MTO for offenders with mental disorders, this is predicated on the offender being assessed to be suitable. When a guarded prognosis is given, it does not mean that the offender's treatment is not treatable at all. What it usually means is that the psychiatric treatment alone is unlikely to lead to the changes necessary. Currently, though, the main sentencing option for such offenders with guarded prognosis is a jail term.

Sending such offenders to jail, in my respectful view, is not an ideal solution. The underlying condition has not changed. The chances of such offenders reoffending are great. Furthermore, such offenders are often victims of their circumstance, vulnerable to influence by people with bad intentions, and are often persuaded to do things which would get them into even more trouble, as was the case for Mr Tan. At the very least, it would be in the interest of the general public to manage an offender's condition through a networked approach so as to ensure that his condition that led to his offending behaviour does not worsen. Also, it would be in the public interest to monitor such offenders after they have been released and, where possible, for adjustments to be made to these offenders' circumstances and environment so as to lower the chances of them re-offending.

I suggest that our Courts be given more powers to put in place bespoke sentencing arrangements drawing from a multitude of disciplines for a wider spectrum of mental disorders. I understand that, in prison, only offenders with Axis 1 mental disorders are provided treatment, but not Axis 2 disorders, beyond, at times, administering some medication to calm them. Axis 1 disorders are the more familiar ones, such as depression or schizophrenia, whereas Axis 2 disorders are usually lifelong problems, such as anti-social personality disorder, paranoid personality disorder and mental retardation. The lack of treatment for or appropriate management of the psychiatric condition of such offenders would mean that they may exit prisons without the additional social and emotional skills to manage life, with the result that the risk of re-offending is not lessened.

Examples of other sentencing options for such offenders may include mandatory in-patient treatment whilst serving a jail term, and mandatory regular reporting to a prescribed officer for monitoring even after the prison sentence has been served. Such options have been implemented in the UK vis-a-vis Axis 2 disorders. There, besides a hospital order, which is similar to our MTO, the courts there have the option of making a hybrid order where an offender is sentenced to a period of imprisonment and is simultaneously admitted to hospital for a period of treatment. Furthermore, the UK courts have the ability to make a restriction order over and above the hybrid order or the hospital order.

What is also notable is that, in the UK, there were amendments made to the Mental Health Act in 2008 which abolished the "treatability test" in favour of the "appropriate treatment test" when considering sentencing orders for offenders with mental disorders.

In 2008, the "appropriate treatment test" was introduced to replace the old test. "Treatment" is defined as including nursing, psychological intervention and specialist mental health rehabilitation and care. Treatment includes anything from a cure to containment. The new test allows the court to make a detention order for treatment so long as, having regard to the nature and degree of the mental disorder and all other circumstances, the "appropriate medical treatment is available to him". Arising from the above, in the UK, they have multidisciplinary teams that assess more holistic sentencing options for the courts, not just psychiatric treatment.

I commend this approach to this House. If such an approach is adopted in Singapore, admittedly, there would be a need to enhance the resources committed for community-based sentencing. Hopefully, the Government will be able to rely on VWO support. Also, with respect to offenders who do have independent means of support, perhaps it may not be necessary for the psychiatric treatment component of MTOs to be administered via the Institute of Mental Health (IMH), which would involve public resources. Instead, private sector resources can be drawn in, too.

In short, the options that I have identified, in my view, will allow judges to have more discretion to impose bespoke sentences on offenders suffering from serious mental conditions, especially personality disorders. I also believe such an approach, in the long run, better serves the public interest.

Separately, I have seen situations where conditional warnings were given in lieu of prosecution to mentally disordered offenders, especially youthful offenders. The hon Minister of Law explained in 2010 that conditional warnings are part and parcel of prosecutorial discretion and does not need to be hard coded in our laws. Whilst I agree that there is no need for hard coding, it may be good to provide a structured community-focused legal framework and budget to support the rehabilitation of such offenders with mental disorders to reduce the likelihood of them re-offending and being charged in Court.

As a parallel, I wish to highlight the multidisciplinary approach taken by the Community Court, in certain cases, through the Community Court Conference (CCC) prior to sentencing. I had the privilege of personally witnessing the efficacy of this approach in one case involving a 15-year-old boy in Bukit Batok who was given a warning in lieu of prosecution.

This boy was diagnosed with autism and attention deficit hyperactivity disorder (ADHD) and also suffers from a gaming addiction. Despite his young age, he has gotten into trouble with the law quite a few times. Recently, he was arrested for being in possession of a dangerous weapon. Not only that, through the instigation of some negative influences, he posted a video of himself on the Internet deriding a particular gang. His father petitioned the Police not to charge him in Court. The Police agreed and administered his son with a stern warning instead.

Unfortunately, the boy continued to cause disruption not just within his family but in the neighbourhood. His father tearfully recounted that his son, for the first time, started laying his hands on him.

To help the boy and his family, community leaders, the family social worker, his school teachers, psychiatrist, psychologist and the Police formed a social network to support him. I met these representatives with a view to coordinate their efforts.

Through this approach, this boy is now required to regularly report to officers at a Neighbourhood Police Post. Operators of the gaming arcades in the vicinity were advised not to allow him in, should he visit them. His school teachers would check periodically to see if the boy takes his medication, which, unfortunately, is not a given. His psychiatrist has made some adjustments to his medication regime so that the monitoring could be done more easily. The community leaders continue to provide support to the family and continue to keep an eye on him with a view to keep him out of harm's way.

In this boy's case, the various stakeholder representatives went above their ordinary scope of duties to help him. I suggest that a legislative framework be provided to allow offenders to be put through this community-based rehabilitative programme.

The current situation of enforcement authorities imposing conditions on the mentally disordered offender for not prosecuting him would not provide sufficient assurance against him re-offending. There is a need to bring in the relevant agencies, work out a programme and monitor the progress. Often, the offender's family alone is simply unable to cope, especially a broken family. The challenge, though, is to identify the right Government agency to lead and manage this initiative because we are looking at a broad spectrum of matters − enforcement of law, treatment, rehabilitation and drawing on VWO and community resources. In my respectful view, it may be appropriate for an inter-Ministerial panel to be set up to look into this.

I strongly believe that Mr Tan's sister would have benefited from participating in such a programme. She received an unconditional warning from the Police for her participation in the theft case with her brother. Unfortunately for her, she is not put into any rehabilitative programme. The odds of her re-offending remain high.

Another area of sentencing, which I respectfully suggest the Minister also review, is the applicability of community sentences for offences that stipulate mandatory or specified minimum sentences. The current regime circumscribes the Courts' power to impose community sentences or probation for adult offenders where the offence is one for which a mandatory or specified minimum sentence is prescribed by law.

I filed a Parliamentary Question for oral answer asking if the Ministry of Law (MinLaw) would conduct a review of offences punishable by mandatory or specified minimum sentences to identify suitable offences for which community sentences or probation should be offered as sentencing options. The hon Minister for Law, in a reply dated 8 May 2017, stated that the Ministry does not intend to do so as these offences are seen as more serious.

With respect, I do not see how it can be safely assumed that just because Parliament provides a specified minimum or mandatory sentence, it must mean that Parliament considers this offence to be so serious as to be excluded from community-based sentencing.

It gives rise to anomalies, too. I offer two illustrations. First, in a Straits Times article dated 28 March 2017, a man was reported to have received a short detention order, a form of community sentence, for filming women in bathrooms, which is an offence of insulting the modesty of a woman under section 509 of the Penal Code.

In contrast, a first-time offender convicted for an offence of possessing uncensored films under section 21 of the Films Act would be ineligible for community sentencing because that Act prescribes a fine of not less than $100 for each such film in the offender's possession.

Second, in drink driving cases under section 67 of the Road Traffic Act where injury or damage is caused and the custody threshold is breached, community sentencing is not available because the Road Traffic Act prescribes a minimum fine.

Comparatively, in a Straits Times article dated 14 July 2016, it was reported that a motorist charged with causing death by a negligent act under section 304A of the Penal code was given a community sentence, a short detention order, as that section of the Penal Code did not prescribe a mandatory sentence.

These anomalies were also highlighted by a specially convened High Court Bench consisting of three judges in a 2015 case. The High Court stated that while Parliament decides on the relative gravity of offences, the policy considerations that underlie a legislative choice to impose a mandatory or specified minimum sentence may not necessarily be identical or relevant to the consideration of whether or not probation should be given or available in a particular case. For these reasons, I respectfully suggest that the Ministry enlarge the scope of its present review of the community-based sentencing to also include such offences.

In conclusion, I draw this House' attention to what the hon Minister for Law stated in his characteristically candid manner on 18 May 2010. He said, and I quote, "Each society seeks to strike a balance between the rights of society to secure conviction of a person who commits an offence and the rights of an individual… I will freely admit that there can be reasonable debate as to whether that balance has been rightly struck... The procedure to be adopted for administration of criminal justice is an area where there are diverse and often contentious viewpoints. This is an evolutionary process and we will have to continue to be open to amending our criminal procedures to meet changing norms".

It is correct to take an evolutionary approach as we must be mindful of unintended consequences of effecting change in our criminal justice system. Seven years on from the introduction of community-based sentencing, we have gained more experience in this area. I suggest that it is now time to review and take the necessary steps to strengthen the system based on the evolutionary approach advocated by the hon Minister.

In many other societies, mentally disordered persons continue to be stigmatised and shunned. The typical sentencing solution for mentally disordered offenders with serious conditions is to segregate and keep them away as long as possible.

Even in Singapore, if we do not effect a change in legislative policy, Mr Tan and people like him will eventually run the danger of being imposed corrective training and preventive detention in prison. In layman terms, it means locking them up for long periods of time without the possibility of remission.

In 2010, the Minister for Law made a laudable move in introducing MTOs under the Criminal Procedure Code (CPC). This continues to be celebrated in the criminal bar as a major turning point in relation to sentencing policy of especially mentally disordered offenders.

Seven years later, in light of the impending revision of the CPC, we now have an opportunity —

Mr Speaker, I thank the hon Member for his speech.

In principle, the Government shares the same objectives as Mr Murali. We have been moving in the direction of extending more rehabilitative options to those who commit offences, especially those who suffer from mental health conditions.

The Community-Based Sentencing (CBS) scheme was introduced in the CPC in 2010 to harness the resources of the community in rehabilitating offenders. Let me just highlight two schemes. Each year, the Courts have been making about 80 MTOs, which are targeted at persons with mental health conditions; and 80 Community Service Orders (CSOs). We have seen encouraging results on both these schemes, and I have been told that some who complete their CSOs even continue to volunteer with the organisation where they served their sentence.

We can go further, and intend to do so. In fact, one key plank of MinLaw's proposed amendments to the CPC is to expand the CBS scheme. For offenders with mental health conditions in particular, we are proposing to expand the range of offences that are eligible for MTOs.

However, we must take a balanced approach. Not all cases are suitable for CBS. Some crimes may be too serious and it would not serve the justice system well to allow the offenders to be on the CBS regime. Some offenders may not benefit from CBS. Hence, the regime has to be carefully calibrated. We will need to draw a line somewhere, even if that means that some will fall outside the regime. Nevertheless, we will continue to examine the eligibility requirements and extend the line where appropriate.

This brings me to Mr Murali's point relating to the availability of CBS for offences with mandatory minimum or specified minimum sentences. One area where we think the line should be drawn is where mandatory minimum sentences are concerned. Such sentences are only prescribed for very serious offences. Justice would not be served by imposing CBS for such offences. However, we are prepared to explore whether eligibility for CBS can be extended to offences with specified minimum sentences, which are prescribed for relatively less serious offences. Stakeholders we consulted had generally supported the continued exclusion of such offences, but we will relook the legislation and seriously consider whether CBS can be extended to these offences.

Mr Murali's other point relates to the availability of treatment for offenders whose mental health conditions have been clinically assessed as being not susceptible to treatment. There are good reasons why these offenders are not given MTOs. It would pose a danger to the public and undermine confidence in our criminal justice system if offenders who would otherwise be imprisoned are allowed to remain in the community, even though there is no prospect that the underlying cause of their offending can be addressed through medical treatment.

This does not mean that these offenders are not given treatment. I understand that all inmates diagnosed with mental health conditions are seen regularly by prison psychiatrists. There is a large spectrum of such conditions, and the medical professionals will decide on the degree of treatment and management required.

The Singapore Prison Service also works closely with IMH and voluntary welfare organisations (VWOs) to ensure continuity in monitoring and treating inmates with mental health conditions once they are released. For instance, inmates whose conditions are unstable will be escorted to IMH upon their release, for continued treatment. IMH also makes arrangements for those requiring outpatient psychiatric treatment. For those who may not be able to return home, the Singapore Prison Service works with VWOs, such as the Singapore Association for Mental Health, to emplace them in special care homes.

We regularly examine our practices and systems to ensure that the best possible measures are in place to give these offenders their best shot at effective rehabilitation, subject to what is feasible, given available resources. We will carefully study Mr Murali's comments, including the UK approach he has referred to, to ensure as much as possible that nobody falls through the cracks.

Finally, we have various intervention strategies to prevent re-offending in cases where those with mental health conditions have been given warnings for certain wrongdoing but not charged in Court. These strategies often entail close cooperation between various Government agencies.

Our Police Force works with multiple stakeholders, including the Ministry of Social and Family Development (MSF), the Family Service Centres and IMH, to achieve this objective. Where an Investigation Officer assesses that there are relevant issues through the course of investigation, such as underlying mental or socio-familial issues, a referral will be made to the appropriate agency for their follow-up. The Community Policing Unit also engages community groups regularly. Where appropriate, they are able to render support to reduce re-offending.

There are also a number of programmes available to persons with mental health conditions who are at risk of committing offences. For example, IMH's "Response, Early Intervention, Assessment in Community mental Health" teams (REACH) have been working with school counsellors to assist students with psychological, emotional and behavioural problems, including students with addictions. Interventions are provided within the student's school or, if necessary, at the IMH Child Guidance Clinic (CGC). Children and youths who have committed offences and are suspected to have underlying mental health conditions, may be referred from the Police or MSF to IMH's "Forensic Rehabilitation, Intervention, Evaluation and Network Development Service" (FRIENDS) team. The FRIENDS team will provide assessment and treatment, including group therapy and home visits, and work with community resources to support these youths.

To conclude, the Government will continue to identify and address any gaps in the support structures available for those with mental health conditions, but this cannot replace support from the community. The key to prevent re-offending often lies in the person regularly receiving treatment, including taking his or her medication. For this, there is no substitute for community support. I hope that family and friends, VWOs and other community leaders can continue to work together to support the rehabilitation of these persons.

*Question put, and agreed to.*

*Resolved, "That Parliament do now adjourn."*

Adjourned accordingly at 7.31 pm