Muhammad Sutarno bin Nasir v Public Prosecutor

• Jurisdiction: Singapore
• Judge: Sundaresh Menon CJ
• Judgment Date: 30 July 2018
• Neutral Citation: [2018] SGCA 43
• Plaintiff Counsel: The appellant in person
• Docket Number: Criminal Appeal No 60 of 2017
• Date: 30 July 2018
• Hearing Date: 30 July 2018
• Subject Matter: Criminal Procedure and Sentencing,Sentencing,Totality principle,Rule against double counting
• Published date: 03 August 2018
• Defendant Counsel: and Charlene Tay Chia and Nicholas Lai (Attorney-General's Chambers)
• Court: Court of Appeal (Singapore)
• Citation: [2018] SGCA 43
• Year: 2018

Sundaresh Menon CJ (delivering the judgment of the court ex tempore):

This is an appeal against the sentence imposed by the High Court on the appellant, who pleaded guilty to three charges: (a) aggravated rape punishable under s 375(3)(a)(i) of the Penal Code (Cap 224, 2008 Rev Ed); (b) house-breaking by night with theft punishable under s 457 of the Penal Code; and (c) possession of diamorphine in contravention of s 8(a) and punishable under s 33(1) of the Misuse of Drugs Act (Cap 185, 2008 Rev Ed) (“MDA”). The appellant admitted to breaking into the home of a 27-year-old female (“the victim”) at night, punching her several times and raping her, and stealing items from her home. He also admitted to having ownership and possession of a straw of diamorphine, which had been recovered from a café that he had broken into on another occasion.

The High Court Judge (“the Judge”) sentenced the appellant to an aggregate sentence of 21 years’ imprisonment and 18 strokes of the cane. This comprised three consecutive sentences: 16 years and 18 strokes for the rape offence, three years for the house-breaking offence, and two years for the drug possession offence. The appellant contends that his overall sentence is manifestly excessive and that the three sentences should run concurrently instead of consecutively.

Facts

The relevant facts are set out in the statement of facts which the appellant admitted to.

On 24 July 2016 at about 5am, the appellant was walking in the vicinity of the victim’s housing estate intending to break into a house to steal items. He climbed through an open window on the second floor of a walk-up shop-house unit in which the victim and her grandmother resided.

After ransacking the living room, the appellant entered the victim’s bedroom where he saw her sleeping. He covered the victim’s mouth and squeezed her neck to prevent her from screaming. He then punched her in the face several times to silence and immobilise her. The victim pretended to have fainted in order to avoid being physically assaulted further. The appellant removed the victim’s shorts and underwear and penetrated her vagina with his penis for about two minutes. The appellant then left the unit with the victim’s mobile phone as well as the victim’s and her grandmother’s handbags.

The police and paramedics were called and the victim was brought to the hospital. The victim’s medical report stated that she was distressed, dishevelled and vomiting. She had three bruises of about 1–2cm in length on her cheeks, chest and arm, a 2cm abrasion on her neck, a contusion on her lip, and experienced tenderness in her back.

The appellant was arrested later that morning at 10.20 am. The police found one glass bottle and two glass tubes in his pocket. The appellant admitted to ownership and possession of these items, which are utensils used for drug consumption.

The appellant’s DNA was found on the victim’s endocervical swab, and his semen and DNA were found on the victim’s underwear. The victim’s blood and DNA were detected on the inter-digital area of the appellant’s left hand. The victim’s DNA was also found on his penile swab.

The victim was subsequently referred to the Institute of Mental Health for a psychiatric assessment. She told her psychiatrist that she was extremely terrified in the immediate aftermath of the rape and that her fiancé broke up with her because she was raped. She reported struggling with thoughts of self-blame. The psychiatrist found that she was suffering from post-traumatic stress disorder with prominent intrusive memories of the event.

The statement of facts further relates an earlier incident which took place in the morning of 27 June 2016 when a manager of a café discovered that the café had been broken into. A small sling bag was found on the premises and it contained the appellant’s expired passport as well as a straw containing not less than 0.15g of white granular powdery substance later analysed and found to contain diamorphine. The appellant admitted to having ownership and possession of the bag and its contents.

In the proceedings below, the appellant pleaded guilty to the charges of house-breaking by night with theft and aggravated rape in respect of his actions on 24 July 2016. He also pleaded guilty to the drug possession charge in respect of the diamorphine which was found on 27 June 2016.

The appellant agreed to the following five charges being taken into consideration for the purposes of sentencing (“TIC charges”): house-breaking by night with theft, punishable under s 457 of the Penal Code, by breaking a glass panel on a door of a post office to gain entry into a building used for the custody of property to commit theft of a jacket on 26 June 2016; house-breaking by night, punishable under s 456 of the Penal Code, by prying open the kitchen door of a café to gain entry into a building used for the custody of property on 26 June 2016; consumption of morphine in contravention of s 8(b)(ii) and punishable under s 33(1) of the MDA, on or...