How Can Adult Offenders Get Probation in Singapore?

Probation is an alternative sentencing option to a fine or imprisonment. During probation, the offender will be placed under the supervision of an officer for a period between 6 months to 3 years, and will need to comply with the conditions imposed by the court.

To be eligible for probation, you must meet certain criteria. For one, you must be a first-time offender.

Also, probation is generally granted to only offenders below the age of 21. This is because rehabilitation – the process of helping an offender reintegrate into society – is a key sentencing consideration for offenders below 21.

However, adult offenders above 21 may also be able to obtain probation if the court decides that:

1. The offender has demonstrated an “extremely strong propensity for reform”; and
2. The offence committed does not call for a deterrent sentence.

This article explains these 2 issues in greater detail.

Demonstrating an “Extremely Strong Propensity for Reform”

The court uses a 3-step framework that focuses on the characteristics of the wrongdoer to determine his propensity for reform. These 3 steps are:

1. Has the offender demonstrated a positive desire to change since committing the offence?
2. Are there conditions in the offender’s life that are conducive to helping him turn over a new leaf?
3. Are there any risk factors that would lean against the granting of probation?

Each step will be discussed in detail below.

1. Demonstration of a positive desire to change

At this stage, the court focuses on the offender’s actions, between the time the offence had been committed and the time that sentence is passed, with the aim of evaluating whether the offender is sincerely determined to change his ways.

One key factor is whether the offender has displayed evidence of genuine remorse. In other words, the offender should recognise that he is in the wrong, and be genuinely sorry for what he has done.

Actions that can help show genuine remorse include:

• Pleading guilty to the offence early
• Cooperating fully with investigations
• Fully and honestly disclosing information related to previous criminal involvement

Other relevant factors that could show a positive desire to change may be whether the offender has:

• Taken active steps after his offence to leave his errant ways behind, such as displaying visible, significant effort to quit an  addiction related to the crime committed;
• Complied with and is receptive to rehabilitative measures, such as counselling programmes (especially if they had taken the initiative to attend such programmes); and
• Committed any other offence since the offence that he is currently being punished for.

Finally, whether the offence is “out of character” is also a relevant consideration in assessing your suitability for probation. In this respect, the court is not so much concerned with whether you possess a criminal record, but whether your offence is an anomaly compared to the behaviour you normally display.

If you have demonstrated exemplary character in the past, for example, the court may then infer that your desire to change is genuine, because your offence had been “out of character” and that you are unlikely to re-offend in future.

2. Conditions conducive to helping the offender turn over a new leaf

Here, the focus shifts to the offender’s living environment, and whether they are beneficial to the offender’s efforts to change for the better.

In this regard, much hinges on how supportive the offender’s family is towards the offender and the degree of closeness of their relationship. Other sources of motivation for reform could come in the form of (as applicable) the offender’s children, romantic partner, and religious community.

Moreover, the availability of positive avenues to channel energy – such as enrolment in school, vocational training or employment – is also relevant.

However, the court will not conclude that an offender is deserving of probation simply because he excels academically. This fact is irrelevant unless a link between the offender’s ability to do well in school, and his capability of being reformed, can be drawn.

3. Risk factors

If the evaluation from the first two steps are positive (i.e. you are shown to have a positive desire to change and that there are conditions conducive to helping you turn over a new lead), the court may conclude that you have shown a “sufficiently strong propensity for reform”.

If so, the court will then assess the risk of you relapsing into a life of crime to decide whether to “upgrade” their finding into an “extremely strong propensity for reform”.

Risk factors that the court will consider include whether you:

• Regularly associate yourself with negative peers; or
• Are a habitual user of drugs.

If such risk factors are not present, the court can deem you as having an “extremely strong propensity for reform”.

Whether the Offence Committed Calls for a Deterrent Sentence

Even if you clear the 3 hurdles outlined above and show an “extremely strong propensity for reform”, the court will still need to evaluate the nature and severity of your offence to decide whether to grant you probation.

It is unlikely that probation will be granted if your offence was of a particularly severe nature such that you or others need to be deterred from committing such an offence in the future. This is even if you had shown an “extremely strong propensity for reform”.

Case Study

In 2019, NUS undergraduate Terence Siow Kai Yuan pleaded guilty to outraging the modesty of a woman on an MRT train while he was 22 years old. He was initially sentenced to 21 months of supervised probation and 150 hours of community service, but his sentence was changed to 2 weeks’ jail on appeal to the High Court.

This was because the High Court found that Siow, as an adult offender, had not demonstrated an “extremely strong propensity for reform” for the purposes of being granted probation:

Siow had not demonstrated a strong desire to change

At the first stage, the court did not find strong evidence of Siow’s desire to change.

Though Siow had pleaded guilty to his offence, it appeared to the court that he had yet to take responsibility for his own actions, for he described them as accidental.

Furthermore, while Siow had sought psychiatric help, this was for his anxiety over his court proceedings, rather than to address any root cause of his offending behaviour.

In addition, while Siow did express remorse, such remorse seemed to flow from his fear of the consequences of his actions on himself, rather than from a recognition of the harm his actions had brought about.

As to whether Siow had taken active steps to reform himself, the court observed that Siow’s actions were not sufficient to demonstrate an extremely strong propensity for reform.

In particular, Siow continued to consume pornography, which had been the cause of his misconduct. It was not enough that he had reduced his consumption of pornography somewhat – instead, the court was looking for complete cessation or a more significant reduction.

Finally, Siow’s offence was not out of character. While Siow did appear to be a studious and successful student, this persona was simply a façade that hid his co-existing preoccupation with pornography. As a whole, Siow failed to clear even the first hurdle of the inquiry.

Siow’s environment was not conducive for his reform

Despite having a “positive avenue to channel energy”, in that Siow remained enrolled at NUS, the court noted that this avenue had already existed when he began his consumption of pornography and commission of sexual misconduct offences. Accordingly, there was nothing to show that the same avenue would be able to aid Siow in mending his ways.

Moreover, Siow’s family was a strict and conservative one where matters relating to sexuality were not discussed. Because of their reluctance to talk about the root cause of their son’s offences, and their inability to ensure that Siow stopped his consumption of pornography, the court remained unconvinced that Siow possessed the requisite familial support to reform himself.

Risk factors

This being the case, given that Siow had failed to clear the first 2 hurdles, it was not necessary for the court to determine the presence and effect of any risk factors.

Nonetheless, the court took into account the psychologist’s assessment that Siow’s risk of re-offending was “moderate”, and determined that probation was ultimately unsuitable for compelling Siow to change for the better.

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In summary, looking at the comprehensive framework laid down by the court above, it seems fairly difficult for an adult offender to obtain probation. In deciding whether to grant probation, the court’s ultimate concern is the adult offender’s likelihood of rehabilitation and/or re-offending, with regard to the nature of the offence committed.

Hence, if you have been charged with a criminal offence and would like to know your likelihood of getting probation, you are encouraged to engage a criminal lawyer for legal advice.

As the court emphasised, the analysis is a fact-sensitive one that depends on each offender’s individual situation, and a lawyer will be able to better assess your own unique circumstances.