https://www.lawnet.sg/lawnet/web/la...net3baseportlet_docId=/Judgment/27226-SSP.xml
Public Prosecutor v ABC
[2022] SGDC 40
| Case Number | : | DAC 920451 of 2021 & Ors, Magistrate's Appeal No. MA-9019-2022-01 |
| Decision Date | : | 28 February 2022 |
| Tribunal/Court | : | District Court |
| Coram | : | Kaur Jasvender |
| Counsel Name(s) | : | Lim Shin Hui and Samyata Ravindran (Attorney-General's Chambers) for the Prosecution; Yeo Kee Teng, Mark (Kalco Law LLC) |
| Parties | : | Public Prosecutor — ABC |
[LawNet Editorial Note: An appeal to this decision has been filed in MA 9019/2022/01.]
| 28 February 2022 |
District Judge Kaur Jasvender:
1 The accused faced seven charges; one charge of sexual assault by penetration of the vagina using a finger when the victim was below 13 years of age under s 376(2)(a) of the Penal Code (Cap 224, 2008 Rev Ed), which is punishable under s 376(3), one charge of sexual penetration of the vagina with two fingers when the victim was 14 years of age under s 376A(1)(b) Penal Code, punishable under s 376A(2)(b), three charges of committing an obscene act under s 7(a) Children and Young Persons Act (Cap 38, 2001 Rev Ed) (“CYPA”), one charge of production of child abuse material under s 377BG(1)(a) Penal Code, punishable under s 377BG(2) read with s 124(4) Criminal Procedure Code (Cap 68, 2012 Rev Ed), (“the CPC”) and one charge of meeting the victim during the Circuit Breaker under Regulation 6 COVID-19 (Temporary Measures) (Control Order) Regulations 2020, punishable under s 34(7)(a) COVID-19 (Temporary Measures) Act 2020 (No.14 of 2020).
2 The sexual assault by penetration offence punishable under s 376(3)Penal Code is ordinarily triable in the High Court (pursuant to the First Schedule of the CPC). The Accused consented to the prosecution’s application under s 9(3) of the CPC for the matter to be tried in the District Court. The prosecution proceeded on this single charge to which the accused pleaded guilty. The remaining six charges were taken into consideration for the purpose of sentence on the application of the prosecution and with the consent of the accused.
3 The accused was sentenced to six years’ imprisonment and three strokes of the cane. He has appealed against that sentence which he has commenced serving.
Summary of Facts
4 The victim was between 13 and 14 years of age (D.O.B. 25/04/2006) at the time of the offences. The accused, who was then 28 years of age, had been attending City Harvest Church (“the church”) since 2009. At the material time, he was volunteering as a facilitator with the Children’s Ministry of the church. Specifically, he helped to facilitate classes for children on Saturday afternoons. The victim and her family also attended the church, and two of her siblings attended the class facilitated by the accused on Saturdays.
5 The victim first became acquainted with the accused sometime in early 2020 as she would pick her siblings up after their class, which the accused was facilitating. The victim also started volunteering with the church, and the accused and victim’s relationship developed from there. The accused and victim soon started messaging each other on Instagram, and thereafter moved to WhatsApp. The accused was aware of the victim’s age.
6 Sometime in February 2020, after the accused and victim started messaging each other on WhatsApp, they started meeting in-person. They entered into a relationship soon thereafter, which the accused and victim kept secret. The accused was the victim’s first boyfriend, while the victim was the accused’s sixth girlfriend.
7 At the start of their relationship, the accused would meet the victim after school a few times a week at NEX, and they would then go to the staircase landing of a block of HDB flats to talk, kiss, and hug. After the first few meet-ups, the accused began touching the victim’s private parts sometime in March 2020. The accused touched the victim’s breasts over her clothes on the first occasion. The victim was shocked when the accused did so, but allowed him as she did not want to disappoint him. Thereafter, on a subsequent occasion, the accused progressed to touching the victim’s breasts under her clothes (skin-to-skin). The victim was likewise taken aback but allowed the accused to do so, although she eventually pushed him away as she was afraid that they would be seen. On a third occasion, the accused touched the victim’s breasts under her clothes (skin-to-skin) and touched her vagina over her clothes. Eventually, the accused progressed to digitally penetrating the victim, with one finger on the first occasion, and with two fingers on the second occasion.
8 During the course of their relationship, between March and June 2020, the victim also sent videos and photographs of herself in various states of undress and/or masturbating to the accused on his request. The victim first started sending such videos and photographs to the accused after he requested a nude video of her sometime in March 2020. The victim agreed to do so as she believed that the accused wished to see her naked and wanted to give in to his wishes.
9 Sometime in June 2020, the victim’s mother checked the victim’s handphone and found that she had been in contact with the accused. She also saw that the victim had sent the accused a video of herself removing her clothes. The victim’s mother questioned the victim, who then admitted that she was in a relationship with the accused. On 14 June 2020, the victim lodged a police report against the accused, who was arrested on 15 June 2020.
1st charge (DAC-920451-2021)
10 Sometime in March 2020, the accused and victim met up after the victim ended school. The victim was in her school uniform at the time. She was then 13 years old and the accused knew the victim’s age.
11 They proceeded to a staircase landing at a block of HDB flats, which was not too close to the ground floor, as the accused was afraid of being spotted by people in the vicinity. Thereat, the accused unbuttoned the victim’s shirt and touched her breasts beneath her bra. He then slid his hand up the victim’s thigh, under her skirt, and touched the victim’s vagina under her underwear (skin-to-skin). The accused then inserted a finger into the victim’s vagina and moved his finger in and out for about a minute. The accused and victim hugged before parting ways. The victim initially felt pain because it was the first time her vagina had been digitally penetrated. The victim consented to the accused’s actions.
Prosecution’s Address on Sentence
12 It was submitted that the dominant sentencing considerations are general deterrence and retribution. The sentencing bands in the guideline judgment of Pram Nair v Public Prosecutor [2017] 2 SLR 1015 (“Pram Nair”) for offences of sexual assault by penetration involving digital-vaginal penetration were summarised by the prosecution as follows:
Band | Types of cases | Indicative Range |
Band 1 | Cases featuring no offence-specific aggravating factors or cases where these factors are only present to a very limited extent and therefore have a limited impact on sentence | Seven to 10 years’ imprisonment and four strokes of the cane |
Band 2 | Cases usually containing two or more offence-specific aggravating factors | 10 to 15 years’ imprisonment and eight strokes of the cane |
Band 3 | Extremely serious cases of sexual assault by penetration by reason of the number and intensity of the offence-specific aggravating factors | 15 to 20 years’ imprisonment and 12 strokes of the cane |
13 The prosecution submitted that the case fell within Band 1, and within Band 1, it was submitted that it fell within the range of between seven and eight years’ imprisonment.
14 With respect to the offence-specific factors, it was submitted that the accused’s conduct of first touching the victim’s breasts over her clothes, to eventually digitally penetrating her over the course of their meet-ups showed that the progressive escalation was premeditated. In addition, the significant gap in age and sexual experience between the accused and victim were emphasised.
15 As regards the offender-specific aggravating factor, the prosecution relied on the three TIC charges of committing an obscene act and one similar TIC charge of digital penetrating her when she was 14 years of age. In addition, particular emphasis was placed on the fact that the accused asked the victim for obscene photographs and videos, of which 108 images were recovered from the accused’s handphone. This was the subject-matter of another TIC charge.
16 The prosecution acknowledged the plea of guilt was an offender-specific mitigating factor and submitted for a discount of two years. In the final analysis, the prosecution urged me to impose a sentence of between five to six years’ imprisonment and three strokes of the cane.
Mitigation
17 The accused is now 30 years of age. It was submitted that whilst the accused and the victim met in church, there was ‘no special trust or confidence’ between them as they were both volunteers and in different roles in the youth service.
18 It was submitted that the accused and the victim were in a ‘consensual, non-exploitative romantic relationship’. It was claimed that the accused had genuine feelings towards the victim and he did not set out to exploit her for his own selfish wants.
19 It was highlighted that the victim was not materially younger than the stipulated age ceiling as she was less than a month away from her 14th birthday. In this regard, reference was made to GBR v Public Prosecutor [2018] 3 SLR 1048 at [29(f)] where the Court stated that “The aggravating factor of young age would, in relation to enhanced offences, apply if the victim concerned was materially younger than the stipulated age ceiling, and in a graduated manner depending on how much younger the victim was.”
20 It was emphasised that there was no coercion or pressure. It was said that the offence of digital penetration occurred only twice; once prior to, and once after the victim turned 14 years of age.
21 It was submitted that the accused recognises that he ought to have known better; that he is deeply remorseful; and that he has taken responsibility by pleading guilty timeously.
22 The defence sought a sentence of three years’ imprisonment. It was acknowledged that the sentencing framework in Pram Nair was applicable. It was submitted that there is no offence-specific aggravating factor and the application of the framework would result in an indicative starting point of seven years’ imprisonment.
23 The defence, however, went on to assert that “applying Pram Nair strictly results in an outcome that is manifestly excessive and disproportionate to the overall criminality of the Accused…” It was submitted that the overall criminality of the accused was closer to cases involving s 376A(3) and it was asserted that those precedents would be ‘highly instructive’ in determining the appropriate sentence as they deal with “the exact same offence”.
24 The defence referred to the following three precedents under s 376A(3):
(a) PP v Medrano Ermin Marasigan (SC-906026-2021)
Offender pleaded guilty to two charges under s 376A(1)(a) p/u s 376A(3) Penal Code and one charge under s 376A(1)(c) p/u s 376A(3). Three charges under s 376A(1)(a) p/u s 376A(3) and one charge under s 7(a) CYPA were TICed. The offender was 35 years old. The victim was a 12 year old boy who joined two gay dating apps. The offender initiated communication with the victim via the app. He was aware that the victim was underaged. Two of the proceeded charges involved fellatio and one involved penetration of the victim’s anus with the offender’s penis. He was sentenced to a total term of 32 months’ imprisonment.
(b) PP v Rojas Gil Dominic Barbosa (SC-902818-2019)
Offender, aged 24, pleaded guilty to one charge under s 376A(1)(a) p/u s 376A(3) Penal Code. He penetrated the vagina of a 13 year old girl with his penis. The victim consented after some pressure. He met the victim through a live stream app. He was aware of her age. He had two prior similar convictions where he was placed on probation and sentenced to reformative training. He received 4 years and 11 months imprisonment and two strokes of the cane.
(c) PP v Nick Chong Seng Cheong (SC-904399-2020)
Offender was aged 21 to 22 years at the time of the offences. He pleaded guilty to three charges of penile-vaginal penetration under s 376A(1)(a) p/u s 376A(3) and one charge under s 30(1) Films Act. Three charges under s 376A(1)(a) p/u s 376A(3) and four charges under s 376A(1)(a) p/u s 376A(2) were TICed. The victim was 13 to 14 years at the time of the offences. The offender and the victim got to know each other via a Chat application. The offender was aware of her age. The victim agreed to engage in sexual activities on condition of payment. He was sentenced to 34 months’ imprisonment in total.
25 It was submitted that caning should not be imposed as the principle of retribution was not sufficiently engaged because (a) there was no gross violation of the victim’s physical integrity because she had consented to the acts without coercion or pressure, and (b) the offence did not involve any violence or brutality. Reference was also made to the s 376A(3) precedents where no caning was ordered except for Rojas Gil Dominic Barbosa who was a repeat offender.
26 As regards the offender-specific mitigating factors, it was highlighted that the accused has a clean record. It was submitted that the accused cooperated throughout the investigation and entered an early plea of guilt. It was claimed that the accused’s conduct was ‘a one-off mistake, borne out of a lapse of judgment’. Character testimonials from the accused’s friends and colleagues were tendered. A letter from the accused’s mother was also tendered.
Sentence
27 Section 376(3) came into effect on 1 January 2020. It provides for an imprisonment term of up to 20 years and a liability to caning or to a fine for a sexual assault involving penetration committed against a person under 14 years of age regardless of the person’s consent.
28 It is well-established that for sexual offences against minors, the overarching object of the law is to protect minors and the dominant sentencing objective is deterrence to prevent such offences. In Public Prosecutor v AOM [2011] 2 SLR 1057, the rationale for the protection was explained as follows at [34]:
“The underlying rationale behind these provisions is to protect young and vulnerable girls from being sexually exploited. Indeed, as a matter of societal morality and legislative policy, girls below 16 years of age are, due to their inexperience and presumed lack of sexual and emotional maturity, considered to be vulnerable and susceptible to coercion and hence incapable of giving informed consent. This is epitomised by the fact that the offences of statutory rape and sexual penetration of a minor are strict liability offences as far as consent is concerned.” [Emphasis added]
29 In the same vein, any consent ostensibly given by the 13 year old victim in this case cannot be endorsed as positive consent because she would have lacked the requisite ‘sexual and emotional maturity’.
Section 376A(3) precedents
30 There is an overlap in punishment for s 376(3) and s 376A(3) when the victim is below 14 years of age.
31 To put the three s 376A(3) precedents in context, with regard to Rojas Gil Dominic Barbosa and Nick Chong Seng Cheong, these two cases were dealt with prior to the enactment of s 376(3). As for Medrano Ermin Marasigan, only one s 376A(3) charge was committed on 3 January 2020, whilst the rest of the offences pre-dated the enactment of s 376(3).
32 In assessing the value of sentencing precedents based on an offence different from that for which the court is to pass sentence, the court must consider that the offences are analogous in terms of both policy and punishment (see Keeping Mark John [2017] SLR 170 and Luong Thi Trang Hoang Kathleen v PP [2010] 1 SLR 707).
33 As stated at [30], the maximum punishment of s 376A(3) is the same as s 376(3) where the victim is below 14 years of age. For the policy behind the recently enacted s 376(3), I turn to the Penal Code Review Committee Report (August 2018) which stated at [23-24]:
The PCRC is of the view that sexual activity with minors below 14 years of age is especially egregious, due to their young age and lack of emotional maturity and understanding of sexual activity. Thus, provisions relating to sexual activity with such young minors should be situated within the most serious sexual offences provisions in the Penal Code: s 375 (Rape) and s 376 (Sexual assault by penetration). Section 376 of the Penal Code should be amended to criminalise consensual acts of sexual penetration (excluding penile-vaginal penetration, which is covered under s 375) committed against minors under the age of 14, with or without consent.
Therefore, there will be a new offence of “statutory sexual assault by penetration” in s 376. This is similar to the offence of statutory rape under s 375, where the consent of the minor below the age of 14 is irrelevant for the purposes of liability. This way, a clear signal is sent to the offender and society that due to their inherent vulnerabilities, penetrative sexual activity with such young minors should be labelled more severely as “sexual assault”, cf the current label of such an act as “sexual penetration of a minor under 16” under s 376A(3), which does not convey the same opprobrium. (Emphasis added)
34 It is therefore clear that the policy undergirding the enactment of s 376(3) is to treat offences under s 376(3) against those who are below 14 years of age, which are labelled ‘sexual assault’, more severely than s 376A(3) offences which are labelled ‘sexual penetration’. It reflects the abhorrence that society has towards such crimes involving young victims and the intention to provide protection to such victims and would be victims, irrespective of consent.
35 Accordingly, I rejected the defence submission that s 376A(3) “deals with the exact same offence”. In my view, the reliance by the defence on sentencing precedents under s 376A(3) is misplaced.
Pram Nair Framework
36 The prosecution and the defence were both aligned that this case falls within Band 1 which has a range of 7 to 10 years imprisonment and 4 strokes for claim trial cases. In any case, the sentencing jurisdiction of a district court is up to 10 years, which only encompasses Band 1.
37 The prosecution submitted that the case falls within the 7-to-8-year range and 4 strokes whilst the defence submitted that the offence should be placed at the starting point of 7 years.
Offence-specific aggravating factor
38 I think it is important to appreciate the background to the offending. The accused was 28 years of age. He has had five prior girlfriends. The accused knew the victim was 13 years of age. They were not close in age. The accused must have known that it was a wholly inappropriate relationship. The undisputed facts state that “[at] the start of their relationship, the accused met the victim after school a few times a week and they would go to the staircase landing … to talk, kiss and hug.” It is plain therefore that this was not a virtuous friendship from the start. In fact, the undisputed facts reveal that after the “first few meet-ups”, the accused began touching the victim’s private parts. The victim was shocked but acquiesced as she did not want to disappoint the accused.
39 The prosecution relied on one offence-specific aggravating factor of premeditation. The Court in Ng Kean Meng Terence v Public Prosecutor [2017] 2 SLR 449 at [44(c)], mentioned the following examples of premeditation:
Premeditation: The presence of planning and premeditation evinces a considered commitment towards law-breaking and therefore reflects greater criminality. Examples of premeditation include the use of drugs or soporifics to reduce the victim’s resistance, predatory behaviour (eg, the grooming of a child or young person), or the taking of deliberate steps towards the isolation of the victim (eg, by arranging to meet at a secluded area under false pretences).
The prosecution did not submit that there was ‘predatory behaviour’ but argued that premeditation is “evidenced by the clear progressive escalation in the accused’s conduct” and referred to the significant age gap and the sexual inexperience of the victim.
40 In my view, it is reasonable to infer that the accused had acted in a calculated manner. I rejected the mitigation that it was a “one-off mistake, borne out of a lapse in judgment.” It was clearly not a “one-off mistake” or a “lapse in judgment” as he did not commit an isolated offence. He committed five sexual offences against the victim; two of which were for digital penetration of the vagina with the finger. The undisputed facts showed an increasing escalation in the severity of the intrusions which led up to the digital penetration for about one minute. Further, most of the meetups where the offences were committed occurred at the staircase of a block of HDB flats. It would be reasonable to infer that the venue was chosen because some physical intimacy was contemplated by the accused. For the digital penetration charge, the accused chose a staircase which was not too close to the ground floor, as he was afraid of being spotted by people in the vicinity.
Offender-specific aggravating factor
41 There was one offender-specific aggravating factor. This was the number of charges that were TICed. Three of the charges related to touching the victim’s private parts and another charge related to digitally penetrating her on a second occasion with two fingers. In addition, the accused had requested the victim to send to him videos and photographs in various states of undress and/or masturbation for his sexual gratification. A total of 108 images were recovered from him which showed the victim’s breasts and genitals exposed.
42 Looking at the entire circumstances of the offending, the defence submission to place the offence at the start of Band 1 was unsustainable. I placed the offence at the end of the range, i.e. 8 years and 4 strokes. In this regard, I took note of the defence submission that the victim was close to the stipulated age ceiling. Considering the circumstances of the offending, this by itself did not justify situating the offence at the start of Band 1. In fact, if she had been younger, I would have situated the offence higher in the range of Band 1 than eight years imprisonment.
43 With respect to my decision to impose caning, the fact that there was no violence or coercion is irrelevant. This is because if there was violence or lack of consent, the offence would have been dealt with under s 376(4) where there is a minimum imprisonment term of eight years and 12 strokes, or it may have fallen within Band 2 of the Pram Nair framework. The circumstances revealed a course of physical intrusions which grew in severity and the obtaining of videos and photographs of the victim in a state of nakedness for the accused’s sexual satisfaction. This revealed serious abuse of the victim where the principle of retribution was fully engaged. Accordingly, I was of the firm view that the seriousness of the offending warranted a sentence of caning.
Offender-specific mitigating factor
44 The only mitigating factor is the accused’s plea of guilt. The fact that the accused has no antecedents is a neutral factor (see BPH v Public Prosecutor and another appeal [2019] 2 SLR 764 at [85]). As regards the character references, the countervailing factor is the nature and circumstances of the offending. In addition, its relevance is limited to the extent that the principle of specific deterrence is not engaged to impose a heavier punishment (see Stansilas Fabin Kester v Public Prosecutor [2017] 5 SLR 755 at [99]). As regards the mother’s plea that the accused has lost his career and that it has affected the accused and the ‘whole family’ mentally, such collateral consequences are not relevant to sentencing (see M Raveendran v Public Prosecutor [2021] SGHC 254 at [32] and [38]).
45 I accepted the prosecution’s submission for a two-year discount in the imprisonment term and a reduction in the number of strokes by one on account of the plea of guilt, which was a 25% discount. This resulted in a sentence of six years’ imprisonment and three strokes of the cane.
