Case Summaries

Stansilas Fabian Kester v Public Prosecutor


28 July 2017


Stansilas Fabian Kester v Public Prosecutor

Magistrate’s Appeal No 9320 of 2016/01

Decision of the High Court (delivered by Sundaresh Menon CJ)

1                    This was an appeal against the sentence imposed on the appellant for the offence of driving a motor vehicle, having consumed so much alcohol that the proportion of it in his breath exceeded the prescribed limit, under s 67(1)(b) of the Road Traffic Act (Cap 276, 2004 Rev Ed) (“the RTA”). The central issue in this appeal was whether the custodial threshold is crossed when and because the offender’s drunk driving results in injury to a person and/or property. A secondary issue was whether an offender’s contributions and services to the public may be regarded as a mitigating factor in sentencing. 

Background to the appeal

2                    The appellant accelerated toward a road traffic junction after seeing the traffic signal turn amber. By the time he reached the junction, the signal had turned red against him. His vehicle continued through the junction, brushed past a pedestrian and collided into a motorcyclist. The pedestrian suffered a crush injury of the right foot and the motorcyclist experienced retrograde and anterograde amnesia. None of the injuries were very serious. The collision also caused scratches and dents to the appellant’s car and the victim’s motorcycle.

3                    The appellant was found to have 43μg of alcohol in every 100ml of breath, which was 8μg above the prescribed limit. He pleaded guilty to a charge under s 67(1)(b) of the RTA and consented to a separate charge of dangerous driving under s 64(1) being taken into consideration for the purpose of sentencing. The appellant was sentenced by the district judge to two weeks’ imprisonment for the s 67(1)(b) offence and also disqualified from holding or obtaining a driving license for a period of three years from his release from prison.

4                    The appellant had two main arguments on appeal. First, the custodial threshold had not been crossed and the sentence of imprisonment should be substituted with a fine in the appropriate amount. Second, the appellant’s 15 years of service to the Singapore Armed Forces (“the SAF”), in which he holds the rank of Major, should be regarded as a mitigating factor in determining his sentence. The appellant further argued that he had already felt the consequences of his actions as the SAF had withheld his performance bonuses and merit increments following the incident, and would discharge him altogether if a custodial sentence was imposed.

Decision on appeal

5                    The High Court allowed the appeal in part, reducing the sentence of two weeks’ imprisonment imposed by the district judge to one week. The three-year period of disqualification from driving that the district judge ordered was to remain.

Sentencing drunk drivers who cause physical injury and/or property damage to others

6                    Save in an exceptional category of cases, when a person causes injury to persons or damage to property as a result of his drunk driving and is convicted of the offence under s 67(1)(b) of the RTA, the starting point for sentencing such a person is a custodial sentence. This does not mean that the offender must necessarily serve a custodial sentence, but rather that the prima facie position is that the custodial threshold has been crossed and a term of imprisonment should be imposed unless the mitigating factors warrant a departure from this starting point. ([39])

7                    In assessing the overall gravity of the offence, it is relevant to consider, first, the degree of harm caused; and second, the culpability of the offender. The degree of harm caused can be assessed according to the categories of slight, moderate, serious or very serious harm; and the culpability of the offender through the categories of low, medium and high culpability. The custodial threshold will not typically be crossed in cases involving (a) slight injury (meaning that there is only slight or moderate property damage and/or slight physical injury characterised by no hospitalisation or medical leave) and (b) low culpability (which is characterised by low blood/breath alcohol level and no evidence of dangerous driving behaviour). In any other setting, the custodial threshold would be crossed and the period of imprisonment should be determined according to where on the continuum of harm and culpability the offender falls. ([74]–[75] and [77])

8             In every other case outside of this exceptional category(ie, involving slight harm and low culpability), the sentencing court should calibrate the seriousness of the offence by considering where on the continuum of harm and culpability the offender falls and thereby arrive at an indicative sentence that has due regard to the entirety of the sentencing range permissible under statute. The indicative sentencing ranges, calibrated according to the degree of harm caused and the offender’s culpability, should be considered by the court once it is satisfied that the custodial threshold has been crossed. In the exercise of its sentencing discretion, the court should assess the relevant interaction of harm and culpability having regard to the following:

(a)                A term of imprisonment of between four and six months in cases of very serious harm and high culpability;

(b)                A term of imprisonment of between two and four months in cases of serious harm and high culpability or of very serious harm and medium culpability;

(c)                 A term of imprisonment of up to two months in cases of moderate harm and high culpability, of serious harm and medium culpability, of very serious harm and low culpability or of slight harm and high culpability; and

(d)                A term of imprisonment of up to a month in cases involving other combinations of the degrees of harm and culpability identified at [75] of the Court’s judgment. ([78])

Mitigating value of public service and contributions

9                    Any evidence concerning the offender’s public service and contributions must be targeted at showing that specific sentencing objectives – ie, retribution, prevention, deterrence and/or rehabilitation – will be satisfied even were a lighter sentence to be imposed on the offender. The fact that an offender has made past contributions to society might be mitigating if it is indicative of his capacity to reform and reduces the concern over specific deterrence. This, however, would carry modest weight and can be displaced where other sentencing objectives assume greater importance. ([102])

10                In the context of the offence under s 67(1)(b) of the RTA, the retributive principle is a crucial consideration where the offender has caused injury or property damage as a result of his drunk driving. The principle of general deterrence also assumes particular prominence due to the great potential for harm to others posed by such conduct. In the circumstances, little mitigating weight can be accorded to an offender’s public service or contributions when he commits the offence of drunk driving and particularly where he has caused injury to others as a result. ([97]–[100])

11                The Court rejected the appellant’s argument that the degree of punishment should be reduced because the SAF has already taken measures against him. An employer imposes penalties on its employee for reasons that are not only difficult for the court to determine, but more importantly that have little to do with the rationale for punishment under the criminal law. Neither did the Court place any weight on the fact that the appellant would be discharged from the SAF if he was sentenced to a term of imprisonment. A person who breaches the criminal law can expect to face the consequences that follow under the criminal law. Whether or not such an offender has already or may as a result suffer other professional or contractual consequences should not be relevant to the sentencing court. ([109]–[111])

12                The present case was classified as a case of moderate harm and medium culpability. The appellant caused injury to two persons as a result of his drunk driving. While his alcohol level was on the lower end of the scale, his driving behaviour was dangerous. He created a source of immense danger when he accelerated into a junction at the intersection of two busy roads in the Central Business District during peak traffic hours. In doing so, he also violated road traffic rules by beating a red light. A second charge of dangerous driving was taken into consideration for the purpose of sentencing. The Court was therefore satisfied that the custodial threshold had been crossed. It also found that the circumstances of the offence did not warrant any departure from this starting position. ([112]–[113])

13                As a case involving moderate harm and medium culpability, the starting point was a term of imprisonment of two weeks. However, the Court attributed mitigating weight to the appellant’s payment of compensation to both victims, which was not mentioned by the district judge in his decision. Although the appellant’s payment of compensation arose out of civil suits instituted against him by the victims, the amounts he paid were reasonably substantial and it appeared that he was sincerely attempting to make it up to the victims. The policy of the law should be to encourage this. ([114]–[115])

14                In the circumstances, the Court reduced the sentence of two weeks’ imprisonment imposed by the district judge to one week and ordered that the three-year period of disqualification from driving that the district judge ordered was to remain. The appeal was therefore allowed to this extent. ([116])

This summary is provided to assist in the understanding of the Court’s judgment. It is not intended to be a substitute for the reasons of the Court. All numbers in bold font and square brackets refer to the corresponding paragraph numbers in the Court’s judgment.