Kanagasuntharam v Public Prosecutor

• Jurisdiction: Singapore
• Judgment Date: 30 November 1991
• Date: 30 November 1991
• Docket Number: Criminal Appeal No 11
• Court: Court of Appeal (Singapore)

Kanagasuntharam

Plaintiff

and

Public Prosecutor

Defendant

[1991] SGCA 44

Yong Pung How CJ

,

Goh Joon Seng J

and

S Rajendran J

Criminal Appeal No 11 of 1991

Court of Criminal Appeal

Criminal Procedure and Sentencing–Sentencing–Principles–Applicability of one transaction rule and totality principle–Effect of s 18 Criminal Procedure Code (Cap 68, 1985 Rev Ed)

The appellant pleaded guilty to one charge of rape with hurt and to two charges of voluntarily having carnal intercourse against the order of nature under s 376 (2) and s 377 of the Penal Code (Cap 224, 1985 Rev Ed) respectively. The trial judge sentenced the appellant to 14 years' imprisonment and 24 strokes of the cane for the first charge of rape with hurt and to six and eight years' imprisonment on the remaining two charges respectively. The sentences in the first and third charge were ordered to run consecutively and the appellant was therefore sentenced to a total of 22 years' imprisonment and 24 strokes of the cane. He appealed against the sentence on the ground that it was excessive.

Held, dismissing the appeal:

(1) In deciding whether sentences should run concurrently or consecutively when the offences took place in a short space of time and were against the same victim, the one transaction rule, which stated that sentences should run concurrently in such instances, would likely apply. What constituted “one transaction” depended on the facts and all the circumstances of the case: at [5].

(2) However, the one transaction rule was not an absolute rule and further, its applicability in Singapore was qualified by s 18 of the Criminal Procedure Code (Cap 68, 1985 Rev Ed) (“the CPC”), which stated that where an accused was convicted and sentenced to imprisonment for more than two distinct offences, the sentences for at least two of the offences should run consecutively. The present case, comprising three charges related to three distinct sexual acts, was one to which s 18 of the CPC applied: at [6] to [8].

(3) The sentencing court, when exercising its discretion as to which of the sentences should run consecutively, ought to have regard to the common law principles of sentencing applicable to the imposition of consecutive sentences, namely, the one transaction rule and the totality principle: at [10].

(4) The court was correct in not ordering all three terms to run consecutively as the one transaction rule applied and two consecutive terms were appropriate punishment in this case: at [11].

(5) When deciding upon which sentences to run consecutively, the court should have regard to the totality principle. The first limb of that principle stated that the aggregate sentence should not be substantially above the normal level of sentences for the most serious of the individual offences involved; the second limb stated that the sentence should not be a crushing one not in keeping with his records and prospects. However, in certain instances, and the present case was one such instance, giving full effect to the totality principle would frustrate the purpose of s 18 of the CPC, and the first limb of the principle had to be qualified accordingly: at [13] and [14].

(6) As such, although the total term imposed by the trial judge was 22 years' imprisonment, in excess of the 20-year maximum term for the most serious charge of aggravated rape, this could not be said to be wrong in principle. In view of the appellant's antecedents for sexual offences, the sodomy charges that were taken into consideration and the nature and circumstances of the offences, it also could not be said that the sentence was a crushing one not in keeping with his record and prospects: at [17].

PP v Chot Saik Kam [1990] 1 SLR (R) 806; [1990] SLR 756 (refd)

PP v Teo Heng Chye [1989] 1 SLR (R) 680; [1989] SLR 659 (refd)

R v Faulkner (1972) 56 Cr App R 594 (refd)

R v Hussain [1962] Crim LR 712 (refd)

R v Skinner (1986) 8 Cr App R (S) 166 (refd)

R v Wheatley (1983) 5 Cr App R (S) 417 (refd)

Rajendra Prasad v PP [1991] 1 SLR (R) 402 (refd)

Wong Kai Chuen Philip v PP [1990] 2 SLR (R) 361; [1990] SLR 1011 (refd)

Criminal Procedure Code (Cap 68, 1985 Rev Ed) s 18

Penal Code (Cap 224, 1985 Rev Ed) ss 71, 376, 377

Appellant in person

Christine Lee (Deputy Public Prosecutor) for the respondent.

Judgment reserved.

Yong Pung How CJ

(delivering the judgment of the court):

1 The appellant pleaded guilty in the High Court to a charge of rape with hurt under s 376 (2) of the Penal Code (Cap 224) (“the Code”) and to two charges of voluntarily having carnal intercourse against the order of nature under s 377 of the Code. One of...