GCM v Public Prosecutor and another appeal

• Jurisdiction: Singapore
• Judge: Aedit Abdullah J
• Judgment Date: 25 January 2021
• Neutral Citation: [2021] SGHC 18
• Published date: 29 January 2021
• Docket Number: Magistrate’s Appeals Nos 9040 of 2020/01 and 9040 of 2020/02
• Year: 2021
• Hearing Date: 18 September 2020
• Plaintiff Counsel: Anand George and Radakrishnan s/o Kannusammy Somalingam (BR Law Corporation)
• Citation: [2021] SGHC 18
• Defendant Counsel: Sruthi Boppana and Teo Pei Rong Grace (Attorney-General's Chambers)
• Court: High Court (Singapore)
• Subject Matter: Sentencing,Extremely strong propensity for reform,Adult offenders,Sexual offences against minors under 16,Criminal Procedure and Sentencing

Aedit Abdullah J: Introduction

These are cross-appeals by the Prosecution and the accused in respect of the aggregate sentence of 24 months’ imprisonment imposed by the District Judge (“DJ”) after the accused had pleaded guilty to three proceeded charges under s 376A(3) of the Penal Code (Cap 224, 2008 Rev Ed) (the “Penal Code”) for sexual penetration of a minor under 14 years of age. Eight other charges were taken into consideration for the purposes of sentencing. The Prosecution had sought a sentence of 33 months’ imprisonment, while counsel for the accused had argued that a probation report should be ordered.

Factual background

The accused pleaded guilty on 6 January 2020 to the following charges: DAC 926957/2018: that the accused, on 25 April 2017, at his residence, did digitally penetrate the vagina of the victim, who was 13 years old at the material time, thereby committing an offence under s 376A(1)(b) of the Penal Code and punishable under s 376A(3) of the Penal Code (the “First Proceeded Charge”); DAC 926960/2018: that the accused, on 29 April 2017, at his university hostel, did penetrate the mouth of the victim, who was 13 years old at the material time, with his penis, thereby committing an offence under s 376A(1)(a) of the Penal Code and punishable under s 376A(3) of the Penal Code (the “Second Proceeded Charge”); and DAC 926962/2018: that the accused, on 5 May 2017, at his residence, did penetrate the vagina of the victim, who was 13 years old at the material time, with his penis, thereby committing an offence under s 376A(1)(a) of the Penal Code and punishable under s 376A(3) of the Penal Code (the “Third Proceeded Charge”). What is apparent from the proceeded charges is twofold: that the accused had committed offences under s 376A of the Penal Code on three separate occasions, and that he had engaged in digital, oral, and then penile penetration.

The eight charges taken into consideration for the purposes of sentencing comprised four charges under s 376A of the Penal Code for orally (two charges) and digitally penetrating (two charges) the same victim over the three occasions outlined above, and four other charges for (a) the transmission of obscene images under s 292(a) of the Penal Code; (b) the sexual exploitation of a child under s 7(b) of the Children and Young Persons Act (Cap 38, 2001 Rev Ed ) (“CYPA”); and (c) two charges under the Films Act (Cap 107, 1998 Rev Ed) (“Films Act”) for the accused’s possession of 19 obscene or uncertified films.

I now turn to the facts as set out in the Statement of Facts, which the accused admitted to without qualification.¹ I do not propose to fully reproduce the Statement of Facts here, and only outline the salient points.

The victim was, at the material time in 2017, 13 years old. She was a secondary school student at the time. The accused was, at the material time, 22 years old, and was a student in university at that time. The victim became acquainted with the accused sometime in early-April 2017. Both the accused and victim were alumni from a school group at their primary school. The victim returned to her alma mater once or twice a week to help with the group. During one such session, she was introduced to the accused by a fellow student. The accused explained that he had also been from the group previously, and was there to help out. The accused informed the victim that he was a student at university, while the victim shared that she was a Secondary 2 student. The accused and victim exchanged handphone numbers.

Thereafter, a few days prior to 25 April 2017, the accused contacted the victim for the first time, via Instagram messages. The accused and victim exchanged correspondence, and the accused called the victim at about midnight. They spoke for four hours, and in the course of their conversation, they started talking about sex. The accused told the victim about his previous sexual experiences. At the end of the conversation, the accused asked the victim if she wanted to meet up. He suggested that they could hang out. Thinking that the accused was interested in her and that they might get into a relationship, the victim agreed to meet the accused on 25 April 2017. However, the relationship never materialised.

In the course of their conversations before they met on 25 April 2017, the victim and accused also shared their respective dates of birth with each other. The accused was aware of the victim’s age at the material time. The accused also told the victim that he had exchanged nude photos with other girls in the past, and asked to do the same with her. To facilitate this, he requested that she download an application called “Telegram”, and forwarded a photograph of his erect penis to the victim. He then asked her to reciprocate by sending a nude photograph of herself. The victim complied with the accused’s request.

Subsequently, the accused requested that the victim make her way to a bus stop after school in the afternoon of 25 April 2017. The victim complied. The accused then met the victim at the bus stop and brought her back to his residence. He brought her into his room, where the parties subsequently kissed and undressed themselves. While both of them were naked on the bed, the accused began rubbing the victim’s vagina and penetrated her vagina with his finger repeatedly. Shortly thereafter, the victim stroked his penis with her hand. The accused also persuaded the victim to fellate him, and she again complied. Parties then showered, got dressed, and the victim left while the accused remained at his residence. These acts on 25 April 2017 formed the basis for, inter alia, the First Proceeded Charge.

After their meeting on 25 April 2017, the accused continued to stay in touch with the victim, with the parties continuing to exchange messages. On 29 April 2017, in the afternoon, the accused invited the victim to come over to his university hostel room. The victim made her way to the accused’s hostel room. At all material times, the accused and victim were alone in the hostel room. Whilst there, they started to watch the movie “Fifty Shades of Grey”. When a sex scene in the movie started, the parties started to kiss each other. They undressed themselves and the accused began rubbing the victim’s vagina area before digitally penetrating her vagina. The victim also masturbated the accused. Shortly thereafter, the accused penetrated the victim’s mouth with his penis and moved his penis in and out of her mouth. Thereafter, both parties cleaned themselves up and chatted for a while in the hostel room before going their separate ways. These acts on 29 April 2017 formed the basis for, inter alia, the Second Proceeded Charge.

The parties continued to chat with each other over WhatsApp for the next few days, while the victim was at a school camp. They arranged to meet at the accused’s residence again after the victim’s camp ended. On 5 May 2017, in the afternoon, the victim made her way to a mall near the accused’s residence, where she met the accused. After purchasing some groceries, the accused took the victim back to his residence. The victim and accused had lunch in the accused’s room, after which the accused asked the victim to massage him. The accused took off all his clothing apart from his underwear, and the victim proceeded to massage his back. Thereafter, the accused turned the victim over such that she lay on her back. He mounted her and started to kiss her. The parties then undressed themselves completely, and the accused began digitally penetrating the victim’s vagina. After doing so for a while, the accused asked the victim whether he could penetrate her vagina with his penis. The victim indicated that she was still a virgin and that she was not comfortable with having sexual intercourse at this point. However, the victim eventually relented, presumably after further persuasion from the accused. The accused then penetrated the victim’s vagina with his penis. He did not wear a condom. Shortly afterwards, the victim asked the accused to stop as she was in pain because of the intercourse.

Shortly thereafter, the accused requested that the victim masturbate and fellate him. She complied with his requests. Parties then washed up and the victim left the accused’s residence thereafter. These events of 5 May 2017 formed the basis for the Third Proceeded Charge.

After the aforementioned events on 5 May, the accused informed the victim that he was going to start working as a relief teacher at her school. The parties stopped seeing each other thereafter. They did not meet up privately again after 5 May 2017. After the accused started working at the victim’s school and began teaching her class, the victim confided in her friends that she had had sex with the accused and regretted it. Sometime in July 2017, the victim confided in her form teacher about what had happened with the accused. The victim’s parents were informed, and a police report was subsequently made.

After the police report was made, the accused was confronted by his head of department and the school principal. He denied the allegations that he had had sexual relations with the victim, and was suspended from his job as a relief teacher. The accused subsequently deactivated his Instagram account and deleted all of the chats and photographs with the victim.

It was only later in the course of investigations that the accused eventually admitted to his acts with the victim.

The decision below

Before the DJ, the Prosecution sought a sentence of 15 months’ imprisonment for each of the First and Second Proceeded Charges, and a sentence of 18 months’ imprisonment for the Third Proceeded Charge. The Prosecution argued that the sentences for the First and Third Proceeded Charges should be run consecutively, for an aggregate sentence of 33 months. By contrast, counsel for the accused indicated in mitigation that the Court ought...