What is probation
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Probation is a period of time during which an offender is not sent to prison, but has to keep within the law and be under the supervision of a probation officer.

The court has discretion to put an offender on probation (except for offences for which there is a mandatory minimum sentence). The Probation of Offenders Act (Cap 252), states:

…where a court ….. is of the opinion that having regard to the circumstances, including the nature of the offence and the character of the offender, it is expedient to do so, the court may, instead of sentencing him, make a probation order …

It is common for lawyers to ask the court to grant a probation order instead of a jail sentence. The rehabilitation of offenders constitutes one of the objectives by which a court is guided in passing sentence. The courts retain the discretion to decide the appropriateness of a rehabilitative sentence (such as probation) in any individual case. In virtually every case in which probation or a conditional discharge is asked for by an accused person, remorse is professed; reformation is promised. Yet, plainly, such assurances by themselves cannot form the sole basis on which a decision as to the suitability of a rehabilitative sentence is made.

The court takes into account various other factors including evidence of the accused’s previous response to attempts at rehabilitating him. Thus, for example, all things being equal, a court will be far more disinclined to order probation in the case of an accused who has in the past flouted with impunity the conditions imposed by a probation order.

In one case, the accused was convicted under an offence which carried a mandatory minimum sentence of 18 months. The court had no discretion to make a probation order.

Young offenders

The Probation of Offenders Act seeks to promote the rehabilitation of young first-time offenders. The courts take into consideration the suitability of such offenders for rehabilitation while weighing

the needs of the individual

the interests of the public and

the need to apply the law fairly.

In Fay v Public Prosecutor, Fay was 18 years old when he pleaded guilty to several charges including vandalism by spraying paint from a spray paint can onto motor vehicles. Upon being convicted, he was sentenced to two months’ imprisonment and three strokes of the cane in respect of each charge. His lawyer urged the court to put him on probation.

Section 5(1) Probation of Offenders Act (Cap 252) stipulates that:

…. where a person is convicted of an offence for which a specified minimum sentence or mandatory minimum sentence of imprisonment or fine or caning is prescribed by law, the court may make a probation order if the person —

(a) has attained the age of 16 years but has not attained the age of 21 years at the time of his conviction; and

(b) has not been previously convicted of any …. offence…

In arguing the suitability for probation, the lawyer produced testimonials supplied by his schools and highlighted the factors indicating suitability for probation, namely: that Fay was only 18 years old, his plea of guilt; the remorse he felt; he had no previous criminal record; his agreement to co-operate with the police; and his family circumstances.

Fay originally faced a total of 53 charges. He pleaded guilty to five charges and consented to 20 others being taken into consideration for the purposes of sentencing. Of the 20 charges taken into consideration, 16 of them were charges of vandalism committed with paint. Furthermore, all the acts of vandalism were committed relentlessly and wilfully over a period of 10 days, from 17 September to 26 September 1993, and amounted to a calculated course of criminal conduct.

The appeal court agreed with the district court that Fay's case did not warrant an order of probation and confirmed the jail sentence and caning.

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