Pp v Asr

• Jurisdiction: Singapore
• Court: Court of Appeal (Singapore)
• Judge: Sundaresh Menon CJ,Andrew Phang Boon Leong JA,Judith Prakash JA,Tay Yong Kwang JA,Chao Hick Tin SJ
• Judgment Date: 11 March 2019
• Neutral Citation: [2019] SGCA 16
• Citation: [2019] SGCA 16
• Published date: 16 May 2019
• Plaintiff Counsel: Kow Keng Siong, Sarah Shi, Carene Poh and Jamie Pang (Attorney-General's Chambers)
• Defendant Counsel: N Sreenivasan SC, Jerrie Tan and Jason Lim (Straits Law Practice LLC), Amarick Gill (Amarick Gill LLC), Muntaz Zainuddin (IRB Law LLP) and Cheryl Ng (Intelleigen Legal LLC)
• Docket Number: Criminal Appeal No 10 of 2018
• Hearing Date: 19 September 2018
• Date: 11 March 2019
• Subject Matter: Intellectually disabled offenders,Sentencing,Young offenders,Criminal Procedure and Sentencing

Sundaresh Menon CJ (delivering the grounds of decision of the court): Introduction

Writing in 1968, H L A Hart observed of criminal sentencing that “[t]he most difficult problems are presented by young children and the mentally abnormal”: see “Punishment and the Elimination of Responsibility” in Punishment and Responsibility (John Gardner ed) (Oxford University Press, 2nd Ed, 2008) ch 7 at p 184. This appeal was a lucid testament to the truth of this observation as it concerned an offender, the respondent, who was possessed of both characteristics, being just over 14 years of age at the time of the offences which were in issue, and also afflicted with an intellectual disability. Compounding the difficulty of the case was the seriousness of his crimes: he raped a teenage girl in broad daylight and committed serious sexual abuse on her in other ways. On the other hand, but for his age, he might have invoked a statutory defence to criminal liability on the ground of his lack of maturity. Finally, the minimum sentences stipulated in the charges to which he pleaded guilty, the number of those charges, and the existing sentencing regime presented the sentencing court with only two real alternatives which differed starkly: a lengthy term of imprisonment with caning, or reformative training.

In these circumstances, the High Court chose the latter sentencing option. After hearing the Prosecution’s appeal for the former to be imposed instead, we agreed with the High Court and dismissed the appeal. In these grounds, we explain our reasons in full as well as discuss the delicate and complex issues of sentencing principle that arose for determination.

Background

The respondent was 17 at the time he was sentenced in the court below, and 18 when this appeal was heard. Before he was remanded for the offences in issue, he lived with his mother, grandmother and six siblings in a one-bedroom flat. He was a student at a school for children with special needs, and was assessed by the Institute of Mental Health (“IMH”) a few months after the commission of the offences to have an IQ of 61. His mental age was assessed by one expert to be eight years old, and by another to be between eight and ten years old. It appears that the respondent was just 11 when he first committed an offence. He was thereafter placed on a one-year guidance programme, which he completed. Between the middle of 2013 and 2014, he committed a series of offences which culminated in these proceedings. He was 13 at the time of the earliest of those offences, and 14 at the time of the three sexual offences which were the subject of the charges proceeded with in this case.

The early offences

In June 2013, the respondent and three of his friends burgled a flat and stole a number of household items in the total value of $41. He was not charged for this and was instead administered a stern warning in April 2014 on the condition that he not reoffend within the next twelve months. Three months later, in July 2014, he breached that condition by acquiring an EZ-link card of unknown value which he had reason to believe was stolen property. In the same month, he also burgled another flat and stole $300 in cash as well as seven packets of cigarettes. The next day, together with three friends, he stole a mobile phone, six packets of cigarettes and $1,500 in cash from a stranger.

The respondent was arrested shortly after. For his conduct in the four incidents mentioned above, he was charged under the Penal Code (Cap 224, 2008 Rev Ed) (“the Penal Code”) with, respectively: (a) theft in a human dwelling with common intention under s 380 read with s 34; (b) dishonest retention of stolen property under s 411(1); (c) house-breaking by night in order to commit theft with common intention under s 457 read with s 34; and (d) snatch theft with common intention under s 356 read with s 34. These were, respectively, the seventh, eighth, sixth and fifth charges in this case.

The respondent was then remanded at the Singapore Boys’ Home pending the investigation of these offences. He was released on bail towards the end of July 2014, and proceeded to commit two other offences. In September 2014, he appropriated a friend’s skateboard, and in October 2014, he grabbed the buttocks of a 21-year-old girl. For these actions, he was charged under the Penal Code with criminal breach of trust under s 406 and outrage of modesty under s 354(1) respectively. These were, respectively, the ninth and the tenth charges in this case. He was arrested, and later released on bail again.

The rape

On 21 November 2014, the respondent was distributing flyers with his brother and a friend in Bukit Panjang. At about 5.00pm he went to a convenience store to take a break. It was then that he spotted the victim. She was 16 years old at the time, and has been assessed to have an IQ of 50. She was a schoolmate of the respondent, although they did not know each other.

The respondent decided to follow the victim because he had become aroused upon seeing her. He tailed her across two pedestrian crossings to the block of flats where she lived. He hid behind a wall while she waited for the lift. When she entered the lift, he hurried in after her. He pressed the button for the highest floor, while she pressed the button for a lower floor. When the doors opened for her floor, she exited into the lobby. He followed her and said, “Baby, I love you.” She did not respond and walked towards her flat.

The respondent then pushed her against the parapet. Afraid, she froze. He hugged her and kissed her on her lips and neck. She told him to go away, but he persisted. He then unzipped his shorts and took out his penis. Squatting down, he lifted her dress and pulled her panties to her ankles. He placed his hand inside her bra and felt her breasts. He then inserted a finger into her vagina. She felt pain. He then told her to lie down. She refused and tried to flee, but he restrained her, saying: “If you never lie down now, I take out my knife.” He then pushed her to the floor.

Climbing on top of her, the respondent inserted his penis into her vagina. He was not wearing a condom at that time. Again, the victim felt pain. He then ejaculated on her underwear. But her ordeal was not over. He went through her belongings and found a comb that was about 15cm long. He inserted it into her vagina. After taking it out, he placed it into her mouth. He had no reason to believe that she consented to his actions, but decided to have his way because, in his own words, he “felt horny”. He then said, “Bye bye”, and left the scene.

The aftermath

The victim returned to her flat and began to cry. Her family later brought her to make a police report. Two days later, the respondent was arrested. His bail was revoked and he has been remanded at the Singapore Boys’ Home since then.

For inserting his finger and the comb into the victim’s vagina, the respondent was charged under the Penal Code with two counts of sexual assault by penetration under s 376(2)(a), which is punishable under s 376(3). For threatening to use a knife and penetrating the victim’s vagina with his penis, the respondent was charged under the Penal Code with one count of aggravated rape under s 375(1)(a) read with s 375(3)(a)(ii). These three charges were the third, fourth and second charges respectively in this case. There was originally a first charge for rape, but that was later withdrawn.

In April 2015, all ten charges were laid against the respondent in the Youth Court. The first to the fourth charges were transmitted to the High Court. Although the investigations had concluded by then, according to the Prosecution, “the pre-trial process, the need to secure various psychiatric reports, and the need to fix hearing dates that took into account the court[’s] and [the] parties’ availabilities” resulted in the matter being heard only almost two years later in February 2017. By then, the respondent had turned 16 and had spent nearly two years in remand.

The proceedings below

Before the High Court judge (“the Judge”), the Prosecution proceeded with the second, third and fourth charges, and, with the respondent’s consent, invited the Judge to take the fifth to the tenth charges into consideration for sentencing purposes. The respondent pleaded guilty to the proceeded charges, and the Judge convicted him accordingly.

The Newton hearing

After hearing submissions on the appropriate sentence, the Judge called for a report on the respondent’s suitability for reformative training. Dr Jacob Rajesh, a senior consultant psychiatrist in the Singapore Prisons Service (“the SPS”), prepared and issued a series of memoranda between February and March 2017 in which he maintained that because the respondent had mild mental retardation, he was not suitable for reformative training.

The parties then applied in April 2017 for a Newton hearing to determine two issues: (a) the respondent’s prospects of rehabilitation; and (b) his risk of reoffending. At the hearing, the Judge directed the Prosecution to provide statistics on: (a) the historical number of sexual offenders who had been deemed eligible for reformative training, the number who had been sentenced accordingly and the number who had not; (b) for those offenders who had not been sentenced to reformative training, the reasons why; (c) the number of offenders in each of the two categories who had sub-normal IQ; and (d) for those with sub-normal IQ, what had been recommended in their reformative training suitability reports.

The statistics showed that the mere fact that a sexual offence was involved did not preclude the imposition of a sentence of reformative training. Out of 830 reformative training suitability reports surveyed, 11 offenders (including the respondent) had been convicted of sexual offences, meaning rape simpliciter, sexual assault by penetration or outrage of modesty. Of these 11, nine...