Probation: Eligibility and Whether It Leaves a Criminal Record

Probation is offered as a rehabilitative sentencing option by the Singapore court. It is an alternative to penal or corrective sentences that are carried out in juvenile homes or prison.

Am I Eligible for Probation?

Under section 5 of the Probation of Offenders Act, you are generally eligible for probation if you are:

• A first-time offender;
• Older than 16 years of age and younger than 21 years of age;
• Charged with an offence with either a mandatory minimum sentence OR a specified minimum sentence, and NOT an offence with sentence fixed by law.

The differences between the 3 types of offences mentioned in the previous point are as follows:

Offences with sentences that are fixed by law

Offenders who have committed an offence with a sentence that is fixed by law will not be eligible for probation.

An offence with a sentence “fixed by law” means that its sentence is fixed in quantum (duration or amount payable) and in type.

This means that the court will have to impose the sentence on you as prescribed by law. The court cannot make any adjustments to this sentence, such as choosing to impose a custodial sentence or a fine, or amending the duration of the jail term or the amount to be fined.

For example, if you have been charged with an offence which:

“shall be punishable with a $1,000 fine”

as prescribed by law, the court must impose a $1,000 fine on you. Probation will not be an available alternative for you.

Offences with a mandatory minimum sentence

Offenders who have committed offences with a mandatory minimum sentence may be eligible for probation.

An offence with a mandatory minimum sentence is one where:

• The law has prescribed a minimum quantum for a particular type of sentence; and
• The imposition of the type of sentence is mandatory.

For example, if you have been charged with an offence with a mandatory minimum sentence such that you:

“…shall be punished with imprisonment of at least 3 years and up to 15 years”

the court must impose the imprisonment sentence on you. However, the court can choose to vary the duration of the sentence from anywhere between 3 years and 15 years as prescribed by law.

Notwithstanding this mandatory minimum sentence, probation may remain an alternative sentencing option at the court’s discretion.

Offences fixed with a specified minimum sentence

Offenders who have committed an offence fixed with a specified minimum sentence may be eligible for probation.

An offence with a specified minimum sentence is one where the law has prescribed a minimum quantum for a particular type of sentence. However, the imposition of the type of sentence is not mandatory.

For example, if you have been charged with an offence with a specified minimum sentence, such that you:

“…shall be liable on conviction to imprisonment of at least 3 years or with fine of not less than $2,000 or with both”

the court may choose to impose on you either:

• A custodial sentence (which is prescribed by law to be at least 3 years in duration); or
• A fine on you (which is prescribed by law to be at least $2,000 in quantum); or
• Some other sentence instead (such as probation).

This is because the word “liable” indicates that you can be punished in the manner that has been provided, but this is not mandatory.

I am 21 years old or older. Does this mean I am not eligible for probation?

While probation is commonly ordered for those under the age of 21, the court may also order probation for offenders above the age of 21.

This is provided that the offence is not one for which a specified minimum sentence, mandatory minimum sentence, fine or caning is prescribed by the law. The offender must also demonstrate an “extremely strong propensity for reform“.

Notwithstanding, the typical offender placed on probation is one of a younger age. Older offenders are typically rehabilitated through other appropriate means, although they are not automatically denied probation.

Will I Be Granted Probation?

Even if the offence you have been charged with qualifies you for probation, this does not necessarily mean that the court will place you under probation. Rather, the court has the discretion to decide whether to do so.

As the main sentencing principle underlying probation is rehabilitation, the court will consider whether you are capable of reform and, if so, whether probation will be most suited for helping you achieve reform.

There are several factors that the court will consider when deciding whether to grant probation:

• The nature and severity of the offence;
• Your character; and
• A Pre-Sentence Report (PSR) prepared by the Probation Officer containing background information on the offender’s family, education/work, social activity and attitude.

How Long Does Probation Last?

The probation period may range from 6 months to 3 years, which will be specified in the Probation Order. During this time, you will be placed under the supervision of a Probation Officer.

What Can/Must I Do or Not Do While on Probation?

During your probation, you must not reoffend. You can continue with most day-to-day activities such as school, work or National Service.

However, you must comply with the conditions stipulated by the court in the Probation Order, which are meant to ensure your good conduct and prevent you from committing further offences.

These conditions may include:

• Regular reporting sessions to the Probation Officer;
• Curfews;
• Community service requirements;
• Residence in approved institutions for a maximum of 12 months; and
• Programmes designed to your specific risks and needs.

What Happens If I Breach the Probation Order?

A breach of the Probation Order occurs when you do not comply with the conditions stated in the Probation Order. If so, you may be given warnings by the Probation Officer. You may even be taken to court, where the following may occur:

• The Probation Order may be amended. For example, by cancelling any of the requirements in the order and/or inserting conditions to be complied. This may or may not include extending the duration of the probation period by up to 3 years, Periodic Training Order, Detention Order or Weekend Detention Order;
• You are sentenced for the offence that you had originally committed
• You are fined up to $1,000
• You are detained in prison for up to 14 days

Even if you have been sentenced, fined or detained, you may also still have to continue with your Probation Order afterwards.

Can I Get Early Discharge from Probation?

The Probation Order may also be discharged prematurely before the completion of the probation period. This is subject to the:

• Good progress of the offender; and
• The court’s discretion.

In determining whether to make an order for discharge, the court will have regard to the circumstances including the nature of the offence and the character of the offender.

For example, offenders who have been complying with the conditions stated in the Probation Order and cooperated with the Probation Officer are likely to show good character. This would be a favourable circumstance that will persuade the court in making an order for discharge.

Discharge may be absolute or conditional. A conditional discharge means that upon discharge, the offender must not commit any offence during a period of up to 12 months from the date of the order for conditional discharge.

However if you violate the condition and/or commit a further offence, you are likely to face a more severe punishment for the original offence that  you were placed on probation for and/or additional punishment for the further offence.

Will I Have a Criminal Record after Completing Probation?

Under section 11 of the Probation of Offenders Act, probation is not considered a conviction. This means that the offence will not be on your criminal record, which will not affect your chances of employment or education.

However, probation will be considered a conviction if:

• You are older than 16 years old at the time when you were placed on probation or conditionally discharged; and
• You are subsequently sentenced for the original offence for which you were placed on probation. For example, you commit a further offence during the period of conditional discharge and are subsequently sentenced for the original offence.

Regardless of whether your probation is considered a conviction, you will still need to answer “yes” if you are asked if you have ever been charged in court.

Giving of Security for Probation

Under section 10 of the Probation of Offenders Act, the court can ask for security to be given by any willing party. This is if the court thinks that the giving of security will be “expedient for the purpose of the reformation of the offender” during the probation period or period of conditional discharge.

The willing party will then make a monetary deposit with the court to guarantee the offender’s good behaviour. However, if the offender does not comply with the conditions stated in the Probation Order or the order for conditional discharge, the security may be forfeited.

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Should you require more information as to the sentencing option of probation in Singapore and whether you qualify for probation, feel free to get in touch with our criminal lawyers for assistance.