GCX v Public Prosecutor

• Jurisdiction: Singapore
• Judge: See Kee Oon J
• Judgment Date: 24 January 2019
• Neutral Citation: [2019] SGHC 14
• Plaintiff Counsel: Peter Keith Fernando (M/s Leo Fernando)
• Date: 24 January 2019
• Docket Number: Magistrate’s Appeal No 9125 of 2018
• Hearing Date: 29 August 2018,05 November 2018
• Subject Matter: Sentencing,Calling of Mandatory Treatment Order suitability report,Criminal Procedure and Sentencing,Mandatory Treatment Order
• Published date: 05 February 2019
• Defendant Counsel: Tan Wee Hao and Shana Poon (Attorney-General's Chambers)
• Court: High Court (Singapore)
• Citation: [2019] SGHC 14
• Year: 2019

See Kee Oon J:

The appellant was convicted in the District Court after pleading guilty to one charge of voluntarily causing hurt pursuant to s 323 of the Penal Code (Cap 224, 2008 Rev Ed) (“the Penal Code”). A separate charge for breaching a Personal Protection Order (“PPO”) punishable under s 65(8) of the Women’s Charter (Cap 353, 2009 Rev Ed) was also taken into consideration for the purposes of sentencing. Both charges arose out of a single incident at the appellant’s home where he assaulted his former wife, causing her to suffer multiple injuries. The appellant was sentenced to 12 weeks’ imprisonment on the proceeded charge under s 323 of the Penal Code.

The appellant appealed against his sentence. In his Petition of Appeal, the appellant identified two grounds of appeal. The first ground was that the District Judge erred in failing to call for a Mandatory Treatment Order (“MTO”) suitability report. In so doing, the District Judge had failed to properly assess and appreciate the facts, circumstances, and psychiatric report tendered before her. The second was that the sentence of 12 weeks’ imprisonment was manifestly excessive and unreasonable in consideration of the facts, circumstances and psychiatric condition of the appellant. In his submissions before me, however, the appellant only pursued his first ground of appeal, ie, the District Judge’s failure to call for an MTO suitability report.

After hearing submissions on 29 August 2018, I was persuaded that an MTO suitability report should have been called for. Accordingly, I did so and the appellant was sent for a psychiatric assessment at the Institute of Mental Health (“IMH”). The report dated 16 October 2018 (“the MTO Suitability Report”) found the appellant suitable for an MTO, and the appellant indicated that he was willing to undergo the medication and treatment programme specified by IMH. Parties returned before me on 5 November 2018 to make further submissions. I was persuaded that an MTO was indeed appropriate. I accordingly allowed the appeal, set aside the appellant’s term of imprisonment, and substituted it with an MTO for 24 months.

These proceedings raised issues about the MTO regime which have not been previously considered by the High Court, in particular, the question of when an MTO suitability report should be called for. I have therefore decided to set out my reasons in full in this grounds of decision.

Facts

The facts described in this section are drawn from the Statement of Facts, which the appellant admitted to without qualification.

At the time of the incident, the appellant and the victim resided at an apartment together. They were undergoing divorce proceedings then. Before that, the victim had obtained a PPO from the Family Justice Courts in 2014.

On the night of 22 February 2017, the appellant and the victim had gotten into a verbal dispute over the lighting of a prayer lamp. During the argument, the appellant wanted to feed their daughter, who was present in the room, but the victim refused to allow him to do so. The appellant became angry. He hoisted the victim up by her shirt and punched her in the face multiple times, causing her to fall and hit her rib area against a table. The appellant then dragged her by her hair to an area near the door. The victim fainted, and at that point the appellant stopped and called for the police. These actions took place in the presence of their daughter.

The paramedics who attended to the victim at the scene assessed her injuries to be life-threatening. The victim was conveyed to Changi General Hospital, where she was examined at the Accident and Emergency Department and then admitted to the Department of General Surgery. Her medical report shows that she suffered the following injuries: Swelling over her cheeks and upper lip; Superficial laceration over her upper lip; Nasal bone fracture; Left frontal scalp hematoma; Multiple liver lacerations; Right 10th rib fracture; and Contusions over her right and left knees.

The victim was discharged from Changi General Hospital on 25 February 2017.

The appellant was arrested by the police on 23 February 2017.

The appellant was also brought to the IMH for a psychiatric assessment. The IMH psychiatrist, Dr Jerome Goh (“Dr Goh”), produced a report on 8 March 2017 (“the IMH Report”), assessing the appellant to have been suffering from an “adjustment disorder around the time of the offence and presently, secondary to his severe marital problems and impending divorce which has caused him a lot of stress”. Dr Goh took the view that the appellant’s “adjustment disorder [had] substantially contributed to the offence”, and that the appellant “would benefit from ongoing psychiatric follow-up”.

Decision below

The District Judge’s full reasons are set out in the reported grounds of decision in PP v GCX [2018] SGDC 130 (“the GD”). I set out a brief summary of her grounds here.

The District Judge held that the sentencing principles of general deterrence and retribution should be given precedence in the present case in light of the serious injuries sustained by the victim (at [21] of the GD). The District Judge noted that this was a case involving domestic violence resulting in serious physical injury, and that the courts typically take a strict sentencing position in respect of such offences (at [19]). Further, there was the added dimension of emotional injury suffered by the daughter, who had witnessed the appellant’s brutal assault against her mother (at [22]).

The District Judge accepted the assessment in the IMH Report that the appellant was suffering from an adjustment disorder at the time of the offence (at [23]). She appreciated that the appellant was therefore under “a lot of stress”, as opined by Dr Goh. But she found no evidence that the appellant was still suffering from the adjustment disorder at the time of sentencing on 12 April 2018 (at [24]). Instead, the appellant’s adjustment disorder at the time of the offence in February 2017 arose out of the divorce proceedings, which were ongoing at that time. Those proceedings had concluded by the time the matter was before the District Judge. The District Judge therefore concluded that the stressors which gave rise to the disorder had fallen away (at [26]).

The District Judge also specifically enquired of the appellant whether he would be inclined to attend a Community Court Conference (“CCC”) facilitated by a court psychologist. The appellant declined to attend the CCC. It thus appeared to the District Judge that the appellant was either unwilling to seek treatment, or did not require any treatment (at [24]).

In those circumstances, the District Judge saw no reason to call for an MTO suitability report. In her view, the sentencing principles of general deterrence and retribution – grounded on the offence being committed in the familial context, in breach of a PPO, with serious injuries caused to the victim – outweighed any considerations of rehabilitation, especially when the emotional stressors that might have necessitated psychiatric treatment appeared to have fallen away: at [26]. Instead, a custodial sentence was justified.

That said, the District Judge gave mitigating weight to the appellant’s psychiatric disorder in reducing the term of imprisonment (at [27]). It was also mitigating that the appellant was a first offender who had pleaded guilty to the offence. He was remorseful and, as even the victim accepted, was unlikely to commit such offences again (at [29]). Mitigating weight was also accorded to the victim’s provocation of the appellant (at [29]).

Taking into account all the sentencing factors, the District Judge concluded that a term of 12 weeks’ imprisonment would be fair and just in the circumstances.

The parties’ cases Appellant’s Case

The appellant’s case was that the District Judge erred in appreciating the material before her, and should have called for an MTO suitability report. The appellant noted that pursuant to s 339(3) of the Criminal Procedure Code (Cap 68, 2012 Rev Ed) (“CPC”), three cumulative conditions must be satisfied before a court exercises its discretion to order an MTO: (1) the offender must be suffering from a psychiatric disorder which is susceptible to treatment; (2) the offender is assessed to be suitable for treatment; and (3) the psychiatric condition of the offender must have been one of the contributing factors for his committing the offence.

There was no dispute that the appellant was suffering from an adjustment disorder at the time of the offence. The appellant also relied on the IMH Report stating that this disorder had “substantially contributed” to his commission of the offence. According to the appellant, this essentially satisfied the third requirement under s 339(3) CPC that the condition be a contributing factor for the offender’s commission of the offence. This alone should have impelled the District Judge at least to have called for an MTO suitability report, instead of rejecting the possibility of rehabilitation under an MTO out of hand.

Further, the District Judge erred in appreciating the appellant’s need or willingness to receive psychiatric treatment. The District Judge should not have inferred from the mere fact that the appellant did not wish to attend the CCC that he was unwilling to receive psychiatric treatment or that he did not require any treatment. Instead, the very purpose of an MTO suitability report is to assess whether psychiatric treatment is required by the offender and whether he would benefit from it. That assessment must be done by a psychiatrist specialising in the field, and should not have been left to be inferred by the District Judge.

When parties returned before me on 5 November 2018, after the MTO Suitability Report had been provided to both parties, the appellant relied heavily on the opinion of the appointed...