Pp v Afr

• Jurisdiction: Singapore
• Judgment Date: 27 May 2011
• Date: 27 May 2011
• Docket Number: Criminal Appeal No 9 of 2010
• Court: Court of Appeal (Singapore)

Public Prosecutor

Plaintiff

and

AFR

Defendant

[2011] SGCA 27

Chao Hick Tin JA

,

V K Rajah JA

and

Kan Ting Chiu J

Criminal Appeal No 9 of 2010

Court of Appeal

Criminal Procedure and Sentencing—Sentencing—Benchmark sentences—Courts' robust sentencing policy towards parents and caregivers who inflicted senseless violence on young victims—Sentencing benchmark for offence of culpable homicide not amounting to murder under s 304 (b) Penal Code (Cap 224, 2008 Rev Ed) where physical abuse inflicted by parent or caregiver caused death of young victim—Whether insufficient weight was given to aggravating factors—Whether undue weight was placed on alleged mitigating factors—Section 304 (b) Penal Code (Cap 224, 2008 Rev Ed)

On the evening of 6 January 2009, the respondent and his wife, [B], returned home and found their 23 months' old daughter (‘the Child’), playing with and chewing on the respondent's cigarettes. The respondent shouted at the Child and brought her into the kitchen so that his voice would not be overheard by the neighbours. The Child began to cry as the respondent scolded her. He claimed that being stressed at the time, he slapped and punched the Child a few times. The Child then turned her body away from him as she could not take the pain. Despite so, the respondent continued to ‘smack’ her several more times. As the Child fell into a kneeling position, the respondent continued to punch the respondent, pulled her ears back, and hit her back a few times. The trial judge (‘the Judge’) found that the respondent had kicked and stamped on the Child's back several times while her chest and face were touching the floor. The Child died of ‘haemopericardium’ due to a ruptured inferior vena cava (‘IVC’).

The respondent was charged with murder, but was eventually convicted of the lesser offence of culpable homicide not amounting to murder under s 304 (b) of the Penal Code (‘PC’). The Judge imposed a sentence of six years' imprisonment. The Court of Appeal allowed the Prosecution's appeal against the sentence, and enhanced the sentence to ten years' imprisonment with ten strokes of the cane.

Held, allowing the appeal:

(1) In view of the disturbing brutal violence inflicted on the Child and the disconcerting increase in the incidence of domestic violence cases involving young children, the Court of Appeal was compelled to send a clear signal to all parents and caregivers that any unwarranted infliction of violence on young children would not be tolerated and would be met with the full force of the law. No parent or caregiver had licence to inflict violence with impunity on young children under his charge, and any parent or caregiver who did so would not be allowed to mitigate his culpability on the ground of financial or social problems: at [12].

(2) The sentencing precedents showed that the courts had unequivocally and consistently adopted a robust sentencing policy towards parents and caregivers who inflicted senseless violence on young victims. The maximum sentence of ten years' imprisonment had been imposed in s 304 (b) cases where a parent who caused the death of his child by violence: at [14] and [15].

(3) The Judge gave insufficient weight to the aggravating factors in the present case. The respondent had repeatedly punched the Child even when she had fallen into a kneeling position. The intensity of the violence was evident, as the rupture to the Child's IVC was a rare injury more commonly found in high-speed collisions. The Child's pain and suffering had to have been unbearably severe, as her pericardial cavity was found to contain 40ml of blood. There were altogether 58 external injuries found on the Child. [B] gave evidence that the respondent had stamped on the Child's back with his feet several times, and that the respondent had kicked the Child's back when her chest and face were touching the floor. Nothing was said in the GD on sentence (see [2011] 3 SLR 680) about the respondent kicking and stamping on the Child. This left the Court of Appeal with considerable doubt as to whether this aspect of physical abuse inflicted on the Child was given sufficient consideration by the Judge: at [23] to [30].

(4) The Court of Appeal considered the sentencing principles of deterrence and retribution. On general deterrence, it emphasised that social and financial problems would provide absolutely no excuse for parents or caregivers to vent their frustrations by physically abusing young children under their care. On specific deterrence, it noted that the respondent's other two children would still be at a vulnerable age if the respondent was imprisoned for only the six-year term (on the assumption that the respondent was granted remission of sentence for good conduct). In addition, it held that retributive justice mandated that a heavy sentence had to be imposed on the respondent to ensure that the respondent's punishment was proportionate to his culpability as reflected by the viciousness with which he inflicted violence on the Child: at [31] and [32].

(5) The Judge gave undue weight to the mitigating factors relied on by the respondent. The Judge should not have accepted the respondent's excuse that he had committed the offence on the spur of the moment in a fit of uncontrolled anger, as there was overwhelming evidence that at the material time, the respondent still had considerable presence of mind and had retained considerable control over his own actions: at [35] to [41].

(6) The Judge was unduly sympathetic to the respondent's claim that he was a loving father and was remorseful for what he had done to the Child. The Court of Appeal expressed the view that it was totally unimaginable that a truly loving father would inflict on his own child such severe injuries as the ones suffered by the Child; the actions of the respondent were fundamentally inconsistent with his claim to be a loving father to the Child. The Judge found that there was evidence that the respondent had been physically abusive towards the Child. There were 22 scars which ranged from a week old to a month old at the time of the Child's death. In addition, fresh radial lacerations were found on the Child's anal rim: at [42] to [54].

(7) In view of the extreme violence inflicted by the respondent on the Child, and having regard to the principles of deterrence and retributive justice, the Court of Appeal also imposed ten strokes of the cane on the respondent: at [57].

Chia Kim Heng Frederick v PP [1992] 1 SLR (R) 63; [1992] 1 SLR 361 (refd)

Chua Tiong Tiong v PP [2001] 2 SLR (R) 515; [2001] 3 SLR 425 (refd)

Knight Glenn Jeyasingam v PP [1992] 1 SLR (R) 523; [1992] 1 SLR 720 (refd)

Lim Pei Ni Charissa v PP [2006] 4 SLR (R) 31; [2006] 4 SLR 31 (refd)

PP v AFR [2011] 3 SLR 653 (refd)

PP v Devadass s/o SuppaiyahCriminal Case No 41 of 1997 (refd)

PP v Dwi Arti SamadCriminal Case No 12 of 2000 (refd)

PP v Firdaus bin Abdullah [2010] 3 SLR 225 (refd)

PP v Mohd Azhar GhaparSubordinate Courts Case No 31981 of 2010 (refd)

PP v Mohd Ismail Bin Abdullah @ Nai HenryCriminal Case No 37 of 1994 (refd)

PP v Sumarni bte PonoCriminal Case No 11 of 2001 (refd)

PP v UI [2008] 4 SLR (R) 500; [2008] 4 SLR 500 (refd)

Children and Young Persons Act (Cap 38, 2001 Rev Ed) s 5 (1)

Criminal Procedure Code (Cap 68,1985 Rev Ed) s 175 (1)

Penal Code (Cap 224,1985 Rev Ed) s 304 (b) ,325

Penal Code (Cap 224,2008 Rev Ed) s 304 (b) (consd) ;s 325

Cheng Howe Ming and Peggy Pao Pei Yu (Attorney-General's Chambers) for the appellant

N Kanagavijayan and P Thirunavukkarasu (Kana & Co) and Rajan Supramaniam (Hilborne & Co) for the respondent.

Chao Hick Tin JA

(delivering the grounds of decision of the court):

Introduction

1 This appeal was brought by the Prosecution against the sentence of six years' imprisonment imposed by the High Court on the respondent for causing the death of his 23-month-old daughter (‘the Child’) as a result of the physical injuries which he inflicted upon her. The respondent was held guilty of culpable homicide not amounting to murder under s 304 (b) of the Penal Code (Cap 224, 2008 Rev Ed) (‘the PC’) on the grounds that his acts of violence towards the Child were ‘done with the knowledge that [they were] likely to cause death, but without any intention to cause death, or to cause such bodily injury as [was] likely to cause death’ (see PP v AFR [2011] 3 SLR 653 (‘the GD on conviction’) at [47]). At the conclusion of the hearing of the appeal, we were satisfied, having regard to all the circumstances of the case, that the punishment imposed by the trial judge (‘the Judge’) was manifestly inadequate and substituted it with a term of imprisonment of ten years, plus ten strokes of the cane. We now give our reasons for so deciding.

Background facts

2 On 6 January 2009 at around 6.30pm, the respondent and his wife, [B], left their three young daughters - viz, the Child (who was the eldest), [C] (then aged one) and [D] (then aged two months) - asleep in their flat (‘the Flat’) while they went out to buy groceries. At the supermarket, the respondent saw some dolls for sale and suggested to [B] that they should buy one for the Child as her birthday was approaching. The respondent and [B] returned home at around 7.30pm. Upon entering the Flat, the respondent saw the Child playing with and chewing on his cigarettes, with several cigarettes scattered on the floor. At that point in time, [B] was still outside the door of the Flat putting their shoes in place. The respondent shouted at the Child and asked her why she was so stubborn. [B] heard the shouts. The respondent also asked the Child why she did not play with her toys instead. According to the respondent, the Child had done something similar to his cigarettes two days earlier, and he had warned her then not to touch his cigarettes. Subsequently, the respondent brought the Child into the kitchen so that his voice would not be...