Public Prosecutor v ASR

• Jurisdiction: Singapore
• Judge: Woo Bih Li J
• Judgment Date: 20 April 2018
• Neutral Citation: [2018] SGHC 94
• Plaintiff Counsel: David Khoo and Carene Poh (Attorney-General's Chambers)
• Date: 20 April 2018
• Docket Number: Criminal Case No 47 of 2016
• Hearing Date: 06 February 2017,06 November 2017,06 March 2017,12 March 2018,30 October 2017,01 December 2017,13 November 2017
• Subject Matter: Intellectual disability,Young offenders,Sentencing,Criminal Procedure and Sentencing,Rape,Sexual assault by penetration
• Published date: 15 March 2019
• Defendant Counsel: Nadia Ui Mhuimhneachain (Kalco Law LLC) and Muntaz binte Zainuddin (PY Legal LLC)
• Court: High Court (Singapore)
• Citation: [2018] SGHC 94
• Year: 2018

Woo Bih Li J: Introduction

The Accused was convicted of three offences of severe gravity against a female victim. One was for aggravated rape and two were for sexual assault by penetration. He was 14 years of age at the time these offences were committed on 21 November 2014. By the time he was convicted on 6 February 2017, he was past the age of 16.

An important question arose as to whether he should be sent for reformative training (“RT”). The Prosecution submitted that he should not. One of the reasons the Prosecution relied on was that the Accused would not benefit from RT because of his intellectual disability. Instead, the Prosecution pressed for a long term of imprisonment of between 15 and 18 years in aggregate and at least 15 strokes of the cane. The Defence urged the court to sentence the Accused to RT, although there was an alternative submission for an aggregate term of 11 years’ imprisonment and 12 strokes of the cane if RT was not imposed. I sentenced the Accused to RT and the Prosecution has appealed against my decision.

I set out my reasons below, from which it will become apparent that the current regime does not provide adequate sentencing options to deal with young offenders with intellectual disabilities.

Facts The parties

The accused is a Singaporean male named [ASR] (“the Accused”). He was born on 15 July 2000, and he lived with his mother, grandmother, and six siblings in a 1-bedroom flat. At the time of the offences, he was 14 years of age and a Year 2 student at the Assumption Pathway School. According to an intellectual assessment done by the Child Guidance Clinic (“CGH”) of the Institute of Mental Health (“IMH”) in February 2015, the Accused functions in the “extremely low” range of intelligence with a Full Scale Intelligence Quotient (“IQ”) of 61.¹ His “mental age” was assessed by one expert to be 8 years old and by another to be 8 to 10 years old.²

The victim was a female who was 16 years old at the time of the offences (“the Victim”). An intellectual assessment revealed that she had an IQ of 50.³ At the time of the offence, the Victim was also a student at the Assumption Pathway School, but she and the Accused did not know each other.⁴

The charges

In total, ten charges were brought against the Accused: The 1st charge was withdrawn by the Prosecution with leave of court on 6 February 2017.⁵ The Prosecution then proceeded with the 2nd charge for aggravated rape under s 375(1)(a) of the Penal Code (Cap 224, 2008 Rev Ed) (“PC”) punishable under s 375(3)(a)(ii) of the same Code, and the 3rd and 4th charges both for sexual assault by penetration under s 376(2)(a) punishable under s 376(3) of the PC. The Accused pleaded guilty to them without qualification, and I convicted him accordingly.⁶ These proceeded charges will be referred to as the “present offences”. The Accused consented to the 5th to 10th charges being taken into consideration for the purpose of sentencing under s 148 of the Criminal Procedure Code (Cap 68, 2012 Rev Ed) (“CPC”).⁷ These charges will be referred to as the “TIC charges”.

A schedule of the nine charges (excluding the 1st charge that was withdrawn) is shown at Annex A.⁸

Even though the present proceedings centred around the appropriate sentence for the present offences, the timing and details of the TIC charges were also relevant in view of the parties’ submissions on sentencing. It is with that in mind that I turn to the chronology of the facts.

Chronology Events before the offences

Prior to the present set of charges, the Accused was untraced for other offences.

On 20 June 2013, he, together with three others, stole an electric shaver, a bottle of perfume, and a box of manicure tools, with a total value of $41, from a flat. This gave rise to the 7th charge for theft in dwelling with common intention under s 380 read with s 34 of the PC. I note that the Prosecution appeared mistaken in its Schedule of Offences to have referred to the commission of this offence as being on 20 June 2014,⁹ when the charge itself stated 20 June 2013.

On 12 July 2014, the Accused received a student Ez-link card of unknown value belonging to an unknown girl which he had reason to believe was stolen property. This gave rise to the 8th charge for dishonest retention of stolen property under s 411(1) of the PC.

On 14 July 2014, the Accused together with two others was said to have committed housebreaking by night in order to commit theft with common intention by climbing into a flat through the bedroom window and stole $300 and seven packets of cigarettes. This gave rise to the 6th charge under s 457 read with s 34 of the PC.

On 15 July 2014, the Accused together with three others was said to have committed snatch theft with common intention of (a) a Nokia phone, (b) six packets of cigarettes, (c) a wallet, and (d) cash amounting to $1,500. This gave rise to the 5th charge under s 356 read with s 34 of the PC.

The Accused was thereafter arrested. On 18 July 2014, he was charged in the Youth Court and thereupon remanded at the Singapore Boys’ Home (“SBH”) pending investigations for the offences under the 5th to 8th charges.¹⁰

On 24 July 2014, the Accused was released on bail.

Whilst on bail, the Accused committed the offences constituting the 9th and 10th charges.

On 18 September 2014, the Accused converted a skateboard worth $160 to his use. This gave rise to the 9th charge for criminal breach of trust under s 406 of the PC.

On 3 October 2014, the Accused used both hands to grab the left and right buttocks of a female aged 21 years old. This gave rise to the 10th charge for outrage of modesty under s 354(1) of the PC.

He was arrested on 8 October 2014 and released on bail pending investigations into the 10th charge.¹¹

The present offences

The present offences were also committed whilst the Accused was on bail.

On 21 November 2014, the Accused, together with his brother and a friend, was tasked by his mother to distribute flyers to flats in the vicinity of Bukit Panjang. They split up and did so individually. At about 5.00pm that afternoon, the Accused took a break at a nearby 7-Eleven outlet. ¹²

Shortly thereafter, the Accused spotted the Victim waiting at a traffic light junction at Bukit Panjang Road. The Accused decided then to follow her as he “felt horny” upon seeing her. He trailed the Victim across two pedestrian crossings from Bukit Panjang Road to a block of flats where the Victim resided.¹³ On arrival at the block approximately 15 minutes later, the Accused hid behind a wall while the Victim waited for the lift. When the lift doors opened, the Victim entered into the lift and the Accused hurried into it after her. He pressed the button for the highest floor in the block so that she would not suspect that he was following her, whereas the Victim pressed the button for a lower floor.¹⁴ At about 5.37pm, when the lift door opened at the lower floor, the Victim walked out of the lift into the lift lobby. The Accused followed the Victim and said to her “baby, I love you”. The Victim did not reply and continued walking towards her unit.¹⁵

Suddenly, the Accused pushed the Victim against the parapet. She was scared and stood frozen on the spot.¹⁶

The Accused then hugged the Victim at her waist and kissed her on her lips and neck. The Accused heard the Victim say “go away” but he ignored her and continued kissing her. He unzipped his knee-length shorts and took out his penis. He then squatted down, lifted the Victim’s dress until it was below her breasts, and pulled the Victim’s panties to her ankle. Thereafter, he put his hand inside her bra and touched both the Victim’s breasts.¹⁷

The Accused then inserted his finger into the Victim’s vagina, without her consent, causing the Victim to feel pain in her vagina.¹⁸ This gave rise to the 3rd charge for sexual assault by penetration under s 376(2)(a) of the PC, punishable under s 376(3) of the same Code.

Thereafter, the Accused told the Victim to lie down. The Victim refused¹⁹ and tried to flee to her flat. However, the Accused held her back and told her “if you never lie down now, I take out my knife”.²⁰ He then pushed her, causing her to fall backwards onto the floor. The Accused climbed on top of her, pulled down her panties, and inserted his penis into her vagina, causing her to feel pain. He did not use a condom and the Victim did not consent to the penetration. The Accused then ejaculated outside the Victim’s vagina and onto her underwear.²¹ The Victim was petrified. This gave rise to the 2nd charge for aggravated rape under s 375(1)(a) of the PC, punishable under s 375(3)(a)(ii) of the same Code.

The Accused rummaged through the Victim’s bag and found an orange comb that was approximately 15cm in length. He inserted the comb into the Victim’s vagina without her consent, then pulled it out and put it into her mouth. She was shocked, disgusted, and scared, and pulled out the comb.²² This gave rise to the 4th charge for sexual assault by penetration under s 376(2)(a) of the PC, punishable under s 376(3) of the same Code.

The Accused then told the Victim “bye bye” and left the scene.²³ The Victim quickly returned to her flat and started crying. Subsequently, the Victim’s family members accompanied her to make a police report.²⁴

During the incident, the Victim told the Accused a few times that she did not want to have sex with him. The Accused admitted that he continued to have sex with her in spite of her refusal as he “felt horny”.²⁵

Events after the offences

On 23 November 2014, the Accused was arrested. His bail was revoked and he has been remanded in SBH since.²⁶

On 20 April 2015, the 1st to 10th charges were tendered against the Accused in the Youth Court.²⁷ By the Public Prosecutor’s fiat under s 210 of the CPC dated 17 April 2015, the 1st to 4th charges were transmitted to the High Court.

According to...