Aqw v Pp

• Jurisdiction: Singapore
• Judgment Date: 19 May 2015
• Date: 19 May 2015
• Docket Number: Magistrate's Appeal No 155 of 2014
• Court: High Court (Singapore)

AQW

Plaintiff

and

Public Prosecutor

Defendant

[2015] SGHC 134

Sundaresh Menon CJ

Magistrate's Appeal No 155 of 2014

High Court

Criminal Procedure and Sentencing—Sentencing—Benchmark sentences—Sexual offences against minors under 16—Sexual exploitation of young person—Offender masturbating male minor above 14 with no element of coercion or pressure or abuse of trust—Whether sentence of tenmonths' imprisonment manifestly excessive—Section 7 (a) Children and Young Persons Act (Cap 38, 2001 Rev Ed)

Criminal Procedure and Sentencing—Sentencing—Benchmark sentences—Sexual offences against minors under 16—Sexual penetration of minor—Offender performing fellatio on male minor above 14 with no element of coercion or pressure or abuse of trust—Whether sentence of 15 months' imprisonment manifestly excessive—Section 376 (1) (c) Penal Code (Cap 224, 2008 Rev Ed)

Criminal Procedure and Sentencing—Sentencing—Consecutive sentences—Sexual offences against minors under 16—Offender performing fellatio on and masturbating male minor above 14 over course of one night—Offences separated by several hours' sleep—No element of coercion or pressure or abuse of trust—Whether offences constituting single transaction—Whether aggregate sentence of 25 months' imprisonment manifestly excessive

The appellant pleaded guilty in the District Court to three proceeded charges, all of which arose out of sexual activity that he had engaged in with a male minor (‘the minor’) over the course of one night. At the time of the offences, the appellant was 35 years old and the minor was just under 15 years old. They became acquainted when the appellant used a Facebook account that he operated under a pseudonym to contact the minor. The appellant introduced himself using another assumed name and told the minor that he was a 19-year-old living alone at home, and the minor in turn told the appellant that he was 14 years old.

They eventually met in person. Following an afternoon meal, they returned to the appellant's flat and the minor was left alone there while the appellant ran some errands. They then went to a restaurant for dinner with a friend of the appellant. Thereafter, the appellant and the minor returned to the flat, where the minor watched television while the appellant packed for an overseas trip he was to make the following day. At midnight, the appellant and the minor proceeded to bed, and there they engaged in sexual activity which involved the appellant masturbating the minor and performing fellatio on him. They fell asleep after this. When they woke the following morning, they engaged in further sexual activity which involved the appellant masturbating the minor. Thereafter, the minor went back to sleep and the appellant left for the airport. The minor left the flat later that day and deposited the house keys in the letterbox. The appellant and the minor had no further contact after that night.

The appellant's act of performing fellatio on the minor gave rise to one charge for the offence of sexual penetration of a minor under s 376 A (1) (c) of the Penal Code (Cap 224, 2008 Rev Ed), while his acts of masturbating the minor gave rise to two charges for the offence of sexual exploitation of a young person under s 7 (a) of the Children and Young Persons Act (Cap 38, 2001 Rev Ed) (‘CYPA’). In the District Court, the appellant was sentenced to 15 months' imprisonment for the offence under the Penal Code and ten months' imprisonment for each of the two offences under the CYPA. The imprisonment terms for the Penal Code offence and one of the CYPA offences were ordered to run consecutively, making a total sentence of 25 months' imprisonment. The appellant considered that this was manifestly excessive and he appealed.

Held, allowing the appeal and reducing the sentence for the Penal Code offence to tenmonths' imprisonment and the sentence for each of the two CYPA offences to sixmonths' imprisonment, with the sentences for the two CYPA offences to run consecutively for an aggregate sentence of 12 months' imprisonment:

(1) Given that the offences under s 376 A (1) of the Penal Code and s 7 of the CYPA had the common objective of protecting a class of vulnerable people, namely minors under the age of 16, from sexual exploitation, the key considerations in sentencing an accused person for these offences were the twin notions of (a) the vulnerability of the minor and (b) the degree to which the accused had exploited the minor: at [13] to [21] and [26] .

(2) It followed that the highest end of the sentencing scale was reserved for cases in which the minor was particularly vulnerable and where the offender had exploited the minor to a significant degree by subjecting him or her to penetrative sexual activity in circumstances involving a great deal of coercion that might include violence. As against this, courts should not impose excessive punishments in situations where the minor was not particularly vulnerable in the sense of being not far off from 16 years of age and manifesting no sub-normality, and where the offender had subjected the minor to no coercion or pressure and there had not been any kind of abuse of trust: at [27] .

(3) Based on the precedents, a sentence of between ten and 12 months' imprisonment was the appropriate starting point for offences under s 376 A of the Penal Code where (a) the sexual act that took place between the offender and the minor was fellatio, regardless of which party performed and which received the fellatio, (b) the minor was 14 years old or above, and did not appear to be particularly vulnerable, (c) the offender did not coerce or pressure the minor into participating in the sexual act, and (d) there was no element of abuse of trust: at [29] to [41] .

(4) As for offences under s 7 of the CYPA, a sentence of between six and eight months' imprisonment was appropriate where (a) the sexual act that took place between the offender and the minor involved touching of naked genitalia, regardless of whose genitalia it was, (b) the minor was 14 years old or above, and did not appear to be particularly vulnerable, (c) the offender did not coerce or pressure the minor into participating in the sexual act, and (d) there was no element of abuse of trust: at [50] .

(5) In the present case, even though the age disparity between the appellant and the minor was substantial and the appellant had misrepresented his age to the minor, there was no evidence that any pressure had been brought to bear on the minor or that the appellant had abused a position of trust. The mere fact that the appellant had used the Internet to befriend the minor was not an aggravating factor, and the offences appeared to have been committed without premeditation. Moreover, the appellant had demonstrated good prospects of rehabilitation. In the circumstances there was no justification for the marked departure from precedent represented by the individual and aggregate sentences imposed by the District Court: at [56] to [63] .

(6) As to the selection of sentences to run consecutively, since all the offences constituted a single transaction, it would be excessive and inconsistent with precedent to impose a total sentence of 16 months' imprisonment by ordering that the sentence of ten months' imprisonment for the Penal Code offence run consecutively with the sentence of six months' imprisonment for one of the CYPA offences. Accordingly, the sentences of six months' imprisonment for each of the two CYPA offences should run consecutively for a total sentence of 12 months' imprisonment : at [52] to [54] and [65] .

[Observation: In cases involving sexual offences against minors, an undue focus on issues of age might distract the court from the key considerations of the minor's vulnerability and the degree of exploitation of the minor. Although the minor's age would generally go towards his vulnerability, the age disparity between offender and minor, without more, did not necessarily say very much about the extent to which the offender had exploited the minor, and hence it ought ordinarily to be given little, if any, weight in sentencing. In the same vein, where an offender lied to a minor about his age, although it tended to suggest a more significant degree of exploitation of the minor, this had to be viewed not in isolation but in the light of all the circumstances of the case. Thus, while the age disparity and the fact of an offender lying about his age served as markers that might warrant closer consideration, their real significance had to be assessed in all the circumstances of the case: at [22] to [26] .]

Mohamed Shouffee bin Adam v PP [2014] 2 SLR 998 (refd)

Pittis Stavros v PP [2015] 3 SLR 181 (refd)

PP v Alex Fong Guo Yuan DAC 12314/2010 and others (refd)

PP v APA [2010] SGDC 544 (refd)

PP v AZN [2012] SGDC 155 (refd)

PP v Chee Ee Cheong DAC 910581/2014 (refd)

PP v Chen Qiang DAC 47804/2013 (refd)

PP v Chock Choon Seng DAC 904172/2014 and others (refd)

PP v Lim Zhixiang Adin DAC 22916/2013 and others (refd)

PP v Low Chuan Wee Anthony [2011] SGHC 258 (refd)

PP v Ong Theng Kiat DAC 33921/2013 (refd)

PP v Parthiban a/l Maniarsu DAC 2849/2013 (refd)

PP v Qiu Shuihua [2015] 3 SLR 949 (refd)

PP v Siti Norlelawati bte Mohamed Jelani [2014] SGDC 64 (refd)

PP v Suhaimi bin Shamsudin DAC 38971/2013 and others (refd)

PP v Yeo Chang Yong DAC 40504/2013 (refd)

Children and Young Persons Act (Cap 38, 2001 Rev Ed) s 7 (a) (consd) ;ss 7, 7 (b)

Criminal Procedure Code (Cap 68, 2012 Rev Ed) s 307 (1)

Films Act (Cap 107, 1998 Rev Ed) s 30 (1)

Penal Code (Cap 224, 2008 Rev Ed) s 376 A (1) (c) (consd) ;ss 354, 354 A, 376 A, 376 A (1) , 376 A (1) (a) , 376 A (1) (b) , 376 A (2) , 376 A (3)

Sexual Offences Act 2003 (c 42) (UK) ss 5, 6, 7, 8, 9, 10

Appellant in person

Christine Liu and Claire Poh (Attorney-General's Chambers) for the respondent.

Sundaresh Menon CJ

1 The appellant pleaded...