The Versatility of the Totality Principle

This article focuses on the Totality principle, which requires the court to take a “last look” at all the facts and circumstances and assess whether the sentence looks wrong. First, the article unpacks the Totality principle. Next, it elaborates on the versatile roles of the Totality principle. Finally, it offers some reflections on the Totality principle.

Introduction

1. By way of background, where a person is convicted and sentenced to imprisonment for at least three distinct offences,¹There must be a separate charge for every distinct offence: s 132(1) of the Criminal Procedure Code (Cap 68, 2012 Rev Ed). at least two of those imprisonment sentences must run consecutively: section 307(1) of the Criminal Procedure Code (Cap 68, 2012 Rev Ed).
2. In deciding on the consecutive sentences, a court will have regard to the one-transaction rule and the Totality principle. The one-transaction rule serves as a filter to sieve out those sentences that ought not as a general rule to be ordered to run consecutively: Mohamed Shouffee Bin Adam v Public Prosecutor [2014] SGHC 34 at [27].While it may be helpful to have regard to factors such as proximity and diversity of the legally protected interests, the consideration of the one-transaction rule must be undertaken as a matter of common sense: Poh Boon Kiat v Public Prosecutor [2014] SGHC 186 at [110].
3. The Totality principle requires the court to take a “last look” at all the facts and circumstances and assess whether the sentence looks wrong.²Mohamed Shouffee Bin Adam v Public Prosecutor (2014) SGHC 34 at (58). The Totality principle is a pivotal qualification to the general rule of consecutive sentences for unrelated offences. A mere arithmetic addition of individual sentences might, in many situations and despite the fact that the offences are unrelated, lead to aggregate sentences that are disproportionate to the overall criminality presented: Public Prosecutor v Raveen Balakrishnan [2018] 5 SLR 799 at [71].³See also Andrew Ashworth, Sentencing and Criminal Justice (6^th Edition, 2015, Cambridge University Press) at page 277.
4. This article focuses on the Totality principle in the following ways:
   1. Unpacks the Totality principle;
   2. Elaborates on the versatile roles of the Totality principle; and
   3. Offers some reflections on the Totality principle.

Main Body

(A) Unpacking the Totality Principle

5. The Totality principle, which is a manifestation of the proportionality requirement, has two limbs:
   1. 1^st limb: Whether the aggregate sentence is substantially above the normal level of sentences for the most serious of the individual offences committed. This calls for a comparison between the total sentence on the one hand and a yardstick on the other hand.⁴See Public Prosecutor v ASR (2019) SGCA 16 at (150) where the Court of Appeal considered that the sentence sought by the Prosecution would have violated both limbs of the totality principle.
   2. 2^nd limb: Whether the effect of the sentence on the offender is crushing and not in keeping with his past record and his future prospects: Mohamed Shouffee Bin Adam v Public Prosecutor [2014] SGHC 34 at [54]-[57].⁵See Chief Justice Sundaresh Menon, Sentencing Conference 2014: Opening Address (Law Gazette, February 2015) at (11) to (16). See also Lee Jwee Nguan and Mohamed Faizal, Criminal Procedure, Evidence and Sentencing (2014) 15 Singapore Academy of Law Annual Review at (14.71)-(14.79).(See generally Tan Yock Lin and S. Chandra Mohan, Criminal Procedure (LexisNexis: 2019; Binder 3, Chapter XVII: Sentencing) at [3855]-[3900], [3902], and [3903])⁶See also Andrew Ashworth, Sentencing and Criminal Justice (6^th Edition, 2015, Cambridge University Press) at (8.4.1) – (8.4.3).

1^st Limb

6. For the 1^st limb, a court is to assess the normal level of sentences imposed for the most serious of the offences, and not the maximum permissible sentence.⁷Mohamed Shouffee Bin Adam v Public Prosecutor (2014) SGHC 34 at (56).
7. The Totality principle contemplates comparing the aggregate sentence with the range of sentences normally imposed for the most serious offence, rather than with a specific sentencing benchmark or starting point.⁸Haliffie bin Mamat v Public Prosecutor (2016) 5 SLR 636 at (79). The court should not focus only on the upper limit of the sentencing range. Instead, the court should give due regard to the whole sentencing range and the relevant aggravating or mitigating factors present in the particular case to assess whether, on the whole, the sentence is proportionate to the gravity of the offence.⁹Haliffie bin Mamat v Public Prosecutor (2016) 5 SLR 636 at (79).
8. If it is not possible to determine the “normal level of sentences”, the midpoint of the maximum prescribed sentence might be a useful proxy: Ye Lin Myint v Public Prosecutor [2019] SGHC 221 at [94].
9. It offends the first limb of the Totality principle when an aggregate sentence is almost double the longest individual sentence imposed on an accused person: Logachev Vladislav v Public Prosecutor [2018] SGHC 12 at [109]-[110].
   

   2^nd Limb

10. For the 2^nd limb, a “crushing sentence” is one that destroys any hope of recovery and reintegration of the offender.¹⁰Public Prosecutor v Chong Hou En (2015) SGHC 69 at (67). See also Ang Zhu Ci Joshua v Public Prosecutor (2016) SGHC 143 at (5) and Tan Yao Min v Public Prosecutor (2017) SGHC 311 at (45). Put differently, a “crushing sentence” connotes the destruction of any reasonable expectation of useful life after release.¹¹Kow Keng Siong, Sentencing Principles in Singapore (Academy Publishing, Second Edition, 2019) at (27.155). While it is right that a sentencing court should be mindful of the real effect of a sentence on an offender of advanced age, there are limits to this principle: Court of Appeal in Ewe Pang Kooi v Public Prosecutor (2020) SGCA 13 at (10) affirming Public Prosecutor v UI (2008) 4 SLR(R) 500 at (78).
11. The Totality principle requires the court to take a “last look” at all the facts and circumstances and assess whether the sentence looks wrong.¹²Mohamed Shouffee Bin Adam v Public Prosecutor (2014) SGHC 34 at (58). If so, consideration ought to be given to whether the aggregate sentence should be reduced. This may be done by re-assessing which of the appropriate sentences ought to run consecutively.¹³AQW v Public Prosecutor (2015) 4 SLR 150 at (65). In addition, it could also be done by re-calibrating the individual sentences so as to arrive at an appropriate aggregate sentence.¹⁴Mohamed Shouffee Bin Adam v Public Prosecutor (2014) SGHC 34 at (59). See also Public Prosecutor v Mohamed Fadzli bin Abdul Rahim (2007) SGHC 177 at (56), AQW v Public Prosecutor (2015) 4 SLR 150 at (54), Public Prosecutor v BAB (2017) 1 SLR 292 at (66), and Ho Sheng Yu Garreth v Public Prosecutor (2012) 2 SLR 375 at (133).
12. Where it may be necessary to recalibrate the individual sentences, it is important for the court to proceed sequentially: it must first decide on the appropriate sentences for each offence (i.e. absent consideration of the Totality principle) before deciding on the adjustments that are required to be made to the individual sentences imposed in the light of the Totality principle.¹⁵Logachev Vladislav v Public Prosecutor (2018) SGHC 12 at (82). Ng Kean Meng Terence v Public Prosecutor (2017) SGCA 37 at (72).
13. Where a court concludes that some adjustment to the sentences is called for by the application of the Totality principle, this should be done transparently – by articulating the reasons and considerations that prompt him to do so.¹⁶Mohamed Shouffee Bin Adam v Public Prosecutor (2014) SGHC 34 at (66).
14. The Totality principle is not an excuse for a bulk discount to be given to multiple offending.¹⁷Public Prosecutor v Raveen Balakrishnan (2018) 5 SLR 799 at (75). It is not the case that the longer the aggregate sentence, the greater any “bulk discount” that the courts will grant to the multiple offender.¹⁸Public Prosecutor v Raveen Balakrishnan (2018) 5 SLR 799 at (77).
15. In considering the Totality principle, there are three other points that should be noted:¹⁹Mohamed Shouffee Bin Adam v Public Prosecutor (2014) SGHC 34 at (74)-(80).
    1. The total imprisonment term for the sentences ordered to run consecutively must exceed the longest individual sentence;
    2. When dealing with multiple sentences, the sentencing judge must be vigilant to ensure that aggravating factors are not counted against the accused twice over; and
    3. The circumstances may call for more than two sentences to run consecutively.

(B) Versatile Roles of the Totality Principle

16. Far from being a monochrome, the Totality principle has a many-splendoured piquancy. Three examples are found below – the Totality principle:
    1. Applies to fines;
    2. Applies to caning; and
    3. May have a boosting effect on individual sentences.

(1) Totality Principle Applies to Fines

17. First, the Totality principle is versatile enough to apply 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. This, however, would be subject to any contrary statutory provisions having mandatory force: Seng Foo Building Construction Pte Ltd v Public Prosecutor [2016] SGHC 243 at [4], [63], [72], and [80].
18. 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 principle.²⁰Seng Foo Building Construction Pte Ltd v Public Prosecutor (2016) SGHC 243 at (63).
19. With regard to multiple fines, the sentencing court needs to also 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 section 319(1)(b)(iv) of the Criminal Procedure Code (Cap 68, 2012 Rev Ed).

(2) Totality Principle Applies to Caning

20. Second, the Totality principle applies to a cumulative sentence of caning imposed for several distinct offences.²¹Ho Sheng Yu Garreth v Public Prosecutor (2012) 2 SLR 375 at (133). See also Public Prosecutor v Lim Choon Beng (2016) SGHC 169 at (76). Where there are multiple convictions for similar offences, a court is entitled to vary the number of strokes to be imposed for each charge on account of the Totality principle: Ho Sheng Yu Garreth v Public Prosecutor [2012] 2 SLR 375 at [133].
21. This would, of course, be subject to the mandatory minimum number of strokes as stipulated by the statutory provisions. Conversely, the aggregate sentence of caning cannot exceed the specified limit of 24 strokes: section 328(6) of the Criminal Procedure Code (Cap 68, 2012 Rev Ed). This specified limit acts as a statutory breakwater with regard to the aggregate sentence of caning.

(3) Boosting Effect on Individual Sentences

22. Third, in Gan Chai Bee Anne v Public Prosecutor [2019] SGHC 42 at [18]-[23], the High Court stated that as a matter of logic, the Totality principle is equally capable of having a boosting effect on individual sentences where they would otherwise result in a manifestly inadequate overall sentence. This is because the Totality principle requires not only that the overall sentence not be excessive but also that it not be inadequate.²²Gan Chai Bee Anne v Public Prosecutor (2019) SGHC 42 at (20).
23. The High Court in Gan Chai Bee added that the only way to ensure consistency in outcomes and transparency in reasoning is to engage in a two-step sequence. For the first step, the sentencing judge must reach a provisional view of the individual sentence for each offence. If the amount of dishonest gain involved for each offence is small, he ought not to be concerned over saying that prima facie the offence warrants only a fine and not imprisonment.²³Gan Chai Bee Anne v Public Prosecutor (2019) SGHC 42 at (22).
24. Turning to the second step, he ought then to consider whether the existence of any cumulative aggravating factors – such as the total amount of dishonest gain or the totality of the criminal enterprise – justifies calibrating the individual sentences upwards and running those calibrated sentences consecutively. If any such adjustment is thought necessary, the reason for making it should be spelt out.²⁴Gan Chai Bee Anne v Public Prosecutor (2019) SGHC 42 at (22).
25. It is acknowledged that the challenge of sentencing for multiple similar offences that constitute a single course of criminal conduct may, to some degree, have been ameliorated by section 124 of the Criminal Procedure Code (Cap 68, 2012 Rev Ed). Section 124 permits a single charge to be framed in respect of two or more incidents of the commission of the same offence which, having regard to their time, place and purpose, amount to a course of conduct.²⁵Gan Chai Bee Anne v Public Prosecutor (2019) SGHC 42 at (23). However, the amended provisions permit the amalgamation of only property-related offences. Even in this context, there may be disagreement over whether the individual offences, when taken together, truly amount to a course of conduct for the purpose of amalgamation.²⁶Gan Chai Bee Anne v Public Prosecutor (2019) SGHC 42 at (23).

(C) Some Reflections on the Totality Principle

26. The Totality principle would not apply to compensation orders.²⁷Compensation orders are made pursuant to s 359 of the Criminal Procedure Code (Cap 68, 2012 Rev Ed). This is because a compensation order does not form part of the sentence imposed on the offender, nor is it an alternative to a sentence, and its purpose is not to punish: Soh Mei Yun v Public Prosecutor [2014] SGHC 90 at [56]. Rather, the purpose of compensation is to allow an injured victim or his representative to recover compensation where a civil suit is an inadequate or impractical remedy: Tay Wee Kiat v Public Prosecutor [2018] SGHC 114 at [7].
27. In my view, the Totality principle would apply to driving disqualification orders, subject to any mandatory minimum driving disqualification periods as stipulated by the statutory provisions.
28. Driving disqualification orders meld the three sentencing objectives of punishment, protection of the public and deterrence: Edwin s/o Suse Nathen v Public Prosecutor [2013] 4 SLR 1139 at [13]-[14] and Public Prosecutor v Koh Thiam Huat [2017] SGHC 123 at [64].²⁸For completeness, if the conviction for an offence entails mandatory disqualification, and an offender is convicted of several counts of that offence, the court has to impose a separate term of disqualification for each conviction: Public Prosecutor v Mohammad Rohaizad bin Rosni (1998) 3 SLR(R) 180 at (6), (10) and (11).
29. The Totality principle would have a lesser impact on driving disqualification orders vis-à-vis other types of punishment (imprisonment, fines and caning) because driving disqualification orders do not run consecutively. That said, when an accused person is charged with different types of driving offences and driving disqualification orders²⁹For completeness, under s 43(1)(b) of the Road Traffic Act, where a person is disqualified for a period of one year or longer, that person’s driving licence shall be “of no effect” and the person is further prevented from driving a motor vehicle after the period of disqualification unless he passes the prescribed test of competence to drive. are meted out – these disqualification orders may, depending on the statutory provisions in question, start from the date of a person’s conviction or where the person is sentenced to imprisonment, on the date of the person’s release from prison.³⁰For example, see ss 67(2) and 68(3) of the Road Traffic Act.
30. Finally, the Totality principle appears to be well-placed to serve as a possible rationale underlying the High Court’s view in Loo Pei Xiang Alan v Public Prosecutor [2015] SGHC 217 at [39] that “it would not be right to order that the sentences for the trafficking and consumption charges run consecutively. The reason is that both the charges attracted mandatory minimum sentences due to the appellant’s antecedents. Running the sentences consecutively would be tantamount to “double-counting” of an aggravating factor – the appellant’s re-offending.” ³¹For completeness, in Yuen Ye Ming v Public Prosecutor (2019) SGHC 98 at (71), the High Court stated that it did not think that the High Court in Loo Pei Xiang Alan v Public Prosecutor (2015) SGHC 217 intended to set out a general rule in that case.See also Mohamed Shouffee Bin Adam v Public Prosecutor (2014) SGHC 34 at (78)-(79).

Conclusion

31. In the final analysis, the Totality principle is versatile and lends itself well to fashioning a condign sentence.

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