Aggravating Factors in a Criminal Case

Last updated on July 12, 2024

aggravating factors in a criminal case

In a typical criminal case, if the accused person chooses to plead guilty, or at the conclusion of a criminal trial where the accused person is found to be guilty, the accused person will be convicted of the charge(s) brought against them.

The next stage is then the sentencing stage, which is when the court will be informed of the offender’s prior criminal records (if any), and will hear submissions from the Prosecution on the appropriate sentence to be imposed, considering any relevant factors that will affect the sentence. The Defence (either the offender’s legal counsel or the offender if they are self-represented) may then make a plea in mitigation (otherwise known as a mitigation plea), seeking a reduced sentence. The Prosecution typically has a right to reply to the mitigation plea. For a more detailed discussion on the mitigation plea, you can refer to our other article on how to plead for leniency in court in Singapore.

Typically, the Prosecution will alert the court to the presence of aggravating factors in the case, while the Defence will try to bring the court’s attention to the presence of mitigating factors in the case. The objective of doing so on the part of the Prosecution and the Defence is usually to persuade the court to impose either a heavier or lighter sentence on the offender respectively. After hearing both parties, the court will then sentence the offender in line with judicial precedents.

This article is intended to explain what are aggravating factors in a criminal case, and how they affect the sentence meted out on the offenders. To shed light on this, this article will cover:

This article only covers the “aggravating factors”. Please refer to our other article for information on the “mitigating factors”.

What are Aggravating Factors?

Aggravating factors refer to factors which indicate the degree of seriousness of the crime committed in relation to the offence with which the accused person was charged.

The degree of seriousness of the crime can be assessed based on the degree of seriousness of the offence itself (e.g. rape would be a more serious offence than simple theft), the manner and mode in which the offence was committed, the degree of seriousness of the consequences of the criminal act (e.g. whether there were victims who were seriously hurt), and the interests of the public.

Examples of aggravating factors include that the offence was committed pursuant to the offender’s meticulous planning and premeditation, the widespread harm caused to property and/or people, and a lack of remorse on the part of the offender.

What are the Different Types of Aggravating Factors?

Broadly speaking, aggravating factors can be categorised into:

  1. Offence-specific aggravating factors, i.e. factors which relate to the circumstances of the offence, such as the manner and mode by which the offence was committed as well as the harm caused to the victim.
  2. Offender-specific aggravating factors, i.e. factors which relate to the particular personal circumstances of the offender.

This distinction between offence-specific and offender-specific aggravating factors is important, because they can have different effects on the eventual sentence imposed, as demonstrated by the following case. In the 2017 decision of Ng Kean Meng Terence v Public Prosecutor, the Singapore Court of Appeal set out a sentencing framework for rape offences in Singapore where the offender has claimed trial and been convicted of the offences in question (i.e. contested rape cases). Under this sentencing framework, the court will approach sentencing in similar cases in two steps:

First, the court will identify under which sentencing band the offence falls within, considering the presence and number of offence-specific aggravating factors. The sentencing band will determine the range of sentences which may usually be imposed for cases falling within the band. The sentencing bands which the Court of Appeal decided were appropriate for contested rape cases are:

Characteristics of cases that fall within each sentencing band Range of sentences
Band 1 Cases with no or limited offence-specific aggravating factors 10 to 13 years’ imprisonment + 6 strokes of the cane
Band 2 Cases involving two or more offence-specific aggravating factors 13 to 17 years’ imprisonment + 12 strokes of the cane
Band 3 The most serious cases by reason of the number and intensity of offence-specific aggravating factors 17 to 10 years’ imprisonment + 18 strokes of the cane

The court will then determine precisely where within the range the present offence falls, so as to derive an indicative starting point. To do so, the court will have to ascertain the gravity of the aggravating factors which are present.

Second, the court will then consider whether there are any offender-specific factors (both aggravating and mitigating), which would require the court to adjust the sentence either upwards or downwards from the indicative starting point.

While the above sentencing framework was developed in the context of contested rape cases, it has since been adapted and applied to other offences, including sexual assault by penetration, fellatio, outrage of modesty, criminal intimidation by anonymous communication, and even cheating while gambling in a casino.

Even for offences where the sentencing framework is not applied, aggravating factors (whether offence-specific or offender-specific) still play a crucial role in determining whether the court will impose a more severe punishment on the offender.

Offence-Specific Aggravating Factors

Offence-specific aggravating factors span a wide variety and differ from offence to offence. Hence, what may be an aggravating factor for one offence may not be an aggravating factor for another. For example, an aggravating factor that is only relevant to the offence of rape is where there has been a forcible rape of a victim below 14 years of age, in line with the law that a female under the age of 14 cannot consent to sexual activity.

Another example of an aggravating factor that is only relevant to the category of private sector corruption offences (e.g. providing and receiving bribes) is the benefit and harm caused to the giver of the gratification. Nonetheless, the common thread running through offence-specific aggravating factors is that they typically relate to either the harm caused by the offence, or the offender’s culpability, or sometimes even both.

A few non-exhaustive examples of offence-specific aggravating factors that are common to most offences are set out below:

  • Offence committed while on bail: If an accused person who has been charged with committing an offence but who is out on bail, commits another offence whilst on bail, then this would be an aggravating factor as it may indicate that the offender is not genuinely remorseful, and that the offender has a propensity for offending behaviour. This may warrant greater attention being placed on the need for the offender to be deterred from committing further offences. For example, in 2017, a young offender who was out on bail for molesting an 11-year-old boy that same year, molested another 5-year-old girl. The judge said that there were many aggravating factors in the case, including that he re-offended while out on bail, and thus sentenced him to a year of reformative training, notwithstanding his young age.
  • Offence committed as part of a group and/or the involvement of a criminal syndicate: If an offender committed the offence as part of a group, then this is an aggravating factor warranting a heavier sentence. The rationale underlying this is that the victim would have suffered greater alarm when being confronted with an entire group of offenders acting together, and also being group offences pose a greater threat to social order. When the group comprises members of a criminal syndicate, this increases the severity of the aggravating factor, because of the organised nature of the group crime.
  • Offence involves an abuse of position and breach of trust: If the offender was in a position of responsibility towards the victim (e.g. parents/caregivers and children, medical practitioners and patients, teachers and their pupils), or where the offender was a person in whom the victim has placed their trust by virtue of the offender’s office of employment (e.g. a policeman or social worker), and the offender exploited his or her position of trust or responsibility in order to commit an offence against the victim, this is an aggravating factor. The reason behind this is that when the offender commits an offence in such a situation, there is a dual wrong: the offender has not only committed a crime, but has also violated the trust placed in him/her by society and by the victim. In a series of wife-sharing rape cases which came to light in 2023, a group of men who had met on an explicit online forum conspired to have their wives/ex-wives drugged and raped by the others in the group. When it came to the sentencing for one of the offenders, the judge noted especially that the fact that the offender, who was the victim’s husband, had abetted a rapist’s entry into the victim’s matrimonial home was a serious breach of trust, which was a substantially aggravating factor in the case. This warranted a severe sentence being imposed on the offender.
  • Offence involved planning and/or premeditation: If the offender committed the offence after much planning and premeditation, this is an aggravating factor. The presence of planning and premeditation demonstrates a carefully considered commitment towards breaking the law, and reflects greater criminality on the part of the offender. Premeditation can be demonstrated by the presence of documentary evidence (e.g. messages or written plans) whereby the offender plans out how he/she is going to commit the offence, or by the circumstantial evidence, such as steps taken to stalk, lure and isolate the victim.
  • Offence involved using violence and/or a weapon: If, while committing the offence, the offender uses or threatens to use violence and/or a weapon, this is an aggravating factor. This is primarily because the use of violence and/or a weapon typically correlates with a potential for more significant harm to be caused to the victim.
  • Severe harm to victim: Related to the above factor, this is where severe harm was caused to the victim as a result of the offence committed against him/her. For example, if the victim suffered injuries or trauma which will stay with the victim for life, this is something which would be an aggravating factor considered in sentencing the offender. In the context of sexual offences, the transmission of a serious disease, or pregnancy, would be a serious aggravating factor.
  • Degradation or humiliation of the victim: While the previous factor focuses on the harm caused to the victim, this factor focuses more on the intention of the offender as manifested in the manner of the offending. Again, in the context of sexual offences, the following examples of degradation or humiliation of the victim have been cited: where the offender had repeatedly raped the victim in the course of one attack, where there was further degradation of the victim (e.g. urination on the victim or forced participation in fetishistic sexual acts). In 2013, an ITE lecturer was sentenced to 3 weeks’ imprisonment for sending the victim’s naked photos to her school and parents. The offender and the victim were in a romantic relationship, but when their relationship ended when the victim told the offender about her new boyfriend, the offender sent obscene photos of the victim to her school, and also to her parents, paired with humiliating captions. The judge noted that it was an aggravating factor that the offender had used the photos coupled with degrading captions to humiliate the victim.
  • Offence against a vulnerable victim: A victim can be vulnerable for a number of reasons, including age, physical frailty, mental impairment or disorder, learning disability etc. The rationale behind the vulnerability of a victim being an aggravating factor is that there is a greater need for general deterrence (e.g. the deterrence of persons other than the offender from committing such offences), which warrants a more severe sentence to deter others from similarly preying on such vulnerable victims.
  • Attempts to cover up the offence or conceal evidence: Another aggravating factor is where the offender attempts to cover up the offence or conceal evidence. The reason behind this is likely to do with the absence of remorse on the part of the offender, as well as the increased difficulty of investigations by the relevant authorities if and when the offence is subsequently discovered. Attempts to cover up the offence or conceal evidence can take the form of disposing of and hiding a corpse after committing murder, or erasing and reformatting one’s hard drive to avoid detection of a cybercrime.

Offender-Specific Aggravating Factors

Offender-specific aggravating factors are any other aggravating factors which are personal to the offender, and which do not directly relate to the commission of the offence. Hence, these aggravating factors are more easily transposable across various cases, even though different offences are involved.

A few non-exhaustive examples of commonly identified offender-specific aggravating factors are set out below:

  • Offences taken into consideration for the purposes of sentencing: When accused persons are faced with multiple charges, the Prosecution has the discretion to proceed on some of the charges, and to ask for other charges to be taken into consideration (TIC Charges). When charges are taken into consideration in Singapore, it means that the accused persons admit to committing the offences stated in the charges without being legally convicted of them. The court will not sentence the offender for charges that have been taken into consideration. However, the presence of TIC Charges is an offender-specific aggravating factor that the court will give weight to when deciding what sentence it should impose for the other charges that the offender has been convicted of.
  • Previous convictions (also known as antecedents): The court will have regard to the presence of previous convictions, which may be an aggravating factor. The chief reason for this is that if the offender has previous convictions, this demonstrates a propensity for the offender to re-offend, as well as a lack of rehabilitation on the part of the offender, which warrants a more severe sentence. Beyond just looking at whether the offender has any previous convictions, the court will also focus on the relationship (if any) between the previous convictions and the current offence, and the time that has elapsed since the previous convictions. Generally speaking, if the previous convictions occurred recently, and are similar to the current offence, this is likely to result in a greater enhancement in sentence. On the other hand, antecedents that are dated and/or dissimilar to the current offence may not necessarily result in an enhancement in sentence.
  • Evident lack of remorse: If the circumstances demonstrate that the offender does not feel any remorse for committing the offence, then this is an aggravating factor that the court will consider in deciding whether to increase the severity of the sentence. For example, if the offender had conducted their defence in an extravagant and unnecessary manner, and made scandalous allegations against the victim, this clearly demonstrates the lack of remorse for their actions. In a reported decision, the offender, who was the father of the victim, was convicted of multiple charges of raping and outraging the modesty of the victim. The offender not only did not take responsibility for his actions, but also blamed his actions on his wife, claiming that she did not want to be intimate with him. The court considered this to be a demonstration of an evident lack of remorse on his part, which was an aggravating factor.

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Aggravating factors play a huge role in the sentencing process, because they can affect the eventual sentence that is imposed. Offence-specific aggravating factors inform the indicative starting point for the offence, whereas offender-specific aggravating factors affect whether an uplift is to be made from that starting point.

If you or your loved ones have been charged with a criminal offence, you are strongly encouraged to seek further legal advice from a criminal defence lawyer. The criminal defence lawyer will be able to advise you on whether there are any aggravating factors that may apply to your specific case, and thus advise you on the possible sentence that may be meted out in your situation. The lawyer may also consider whether it is possible to mitigate against the gravity of some of these aggravating factors and may represent you in the criminal legal process, if necessary.

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