PP v Pram Nair
| Jurisdiction | Singapore |
| Judge | Woo Bih Li J |
| Judgment Date | 03 October 2016 |
| Court | High Court (Singapore) |
| Docket Number | Criminal Case No 45 of 2015 |
| Date | 03 October 2016 |
[2016] SGHC 213
Woo Bih Li J
Criminal Case No 45 of 2015
High Court
Criminal Procedure and Sentencing — Sentencing — Rape — Accused being sentenced for offence of rape — Whether rape of intoxicated victim fell within Category 1 or 2 — Section 375(2) Penal Code (Cap 224, 2008 Rev Ed)
Criminal Procedure and Sentencing — Sentencing — Sexual assault by penetration — Accused being sentenced for offence of sexual assault by penetration — Whether sentence for offence of sexual assault by penetration should be lower than sentence for offence of rape — Section 376(3) Penal Code (Cap 224, 2008 Rev Ed)
The accused was convicted on 18 July 2016 in respect of (a) one charge of rape under s 375(1)(a) punishable under s 375(2) of the Penal Code (Cap 224, 2008 Rev Ed) (‘the Penal Code’); and (b) one charge of sexual assault by penetration (with his finger, also referred to as digital penetration) under s 376(2)(a) punishable under s 376(3) of the Penal Code. The victim was intoxicated due to alcohol at the time of the offences.
Held, sentencing the accused to 11 years and 19 days' imprisonment and 12 strokes of the cane:
(1) With respect to the offence of rape, intoxicated victims were especially vulnerable because of their physical and mental state even though this was a temporary state and, in many instances, was also self-induced. This was because such persons would be in less of a condition to resist any sexual assault. The court would place rapes of intoxicated victims somewhere between Category 1 and 2 (of the four broad categories of rape adopted in PP v NF[2006] 4 SLR(R) 849; [2006] 4 SLR 849) and consider all the other facts of each case before deciding on the sentence. This was not to suggest that the rape of an intoxicated victim was to be treated lightly. On the contrary, it was to be considered as a more serious crime than Category 1 rape: at [28] and [30].
(2) Notwithstanding the Prosecution's attempts to raise aggravating factors, the court found that there was none. The court considered as neutral factors the fact that the accused had no antecedents and that he was 23 years of age at the time of the offences and was working part-time as a beach patroller. There was no mitigating factor. A sentence of 12 years' imprisonment and six strokes of the cane would be appropriate for the offence of rape: at [48] to [50].
(3) With regard to the offence of sexual assault by penetration, victims of sexual assault by penetration experienced the same emotional scars as rape victims. Furthermore, the act of inserting one's finger into a vagina was similar to that of inserting one's penis into a vagina. It certainly was a grave violation of the victim. Although there were the risks of pregnancy and of contracting sexually transmitted diseases in the case of rape, the court doubted that such risks should give rise to any marked differentiation between the benchmark sentences for the two offences. Moreover, the structure of ss 375 and 376 of the Penal Code suggested that both offences were considered to be of the same severity. Thus, the punishment for the accused for the offence of sexual assault by penetration should be the same as that for the rape offence: at [56] to [58].
(4) The court took into account the fact that the accused was in remand for 11 months and 11 days before he was released on bail. Furthermore, the court had increased the accused's bail amount after it delivered its judgment on 18 July 2016 to convict the accused in respect of the two charges. As the accused was unable to provide the increased bail, he had remained in remand from that date. In the circumstances, the court sentenced the accused to 11 years and 19 days' imprisonment and six strokes of the cane for each of the two offences. In view of the one transaction rule, the sentences of imprisonment would run concurrently from 18 July 2016. The aggregate sentence was 11 years and 19 days' imprisonment and 12 strokes of the cane: at [59] and [61].
Chia Kim Heng Frederick v PP [1992] 1 SLR(R) 63; [1992] 1 SLR 361 (refd)
Juraimi bin Mohd Sharif v PP MA 519/1993 (refd)
Lee Foo Choong Kelvin v PP [1999] 3 SLR(R) 292; [1999] 4 SLR 318 (distd)
PP v AUB [2015] SGHC 166 (folld)
PP v GBA [2015] SGDC 168 (not folld)
PP v Muhammad Fadly bin Abdull Wahab [2016] SGHC 160 (refd)
PP v Muhammad Hazly bin Mohamad Halimi Criminal Case No 34 of 2016 (refd)
PP v NF [2006] 4 SLR(R) 849; [2006] 4 SLR 849 (folld)
PP v Ng Jun Xian [2015] SGDC 317 (not folld)
PP v Ong Jack Hong [2016] 5 SLR 166 (folld)
PP v Ow Siew Hoe Criminal Case No 36 of 2015 (refd)
PP v Pram Nair [2016] 4 SLR 880 (refd)
PP v Shamsul bin Sa'at [2010] 3 SLR 900 (not folld)
R v BillamWLR [1986] 1 WLR 349; (1986) 8 Cr App R (S) 48 (refd)
R v Daniel RakUNK [2016] EWCA Crim 882 (folld)
R v MillberryWLR [2003] 1 WLR 546; [2003] 2 Cr App R (S) 31 (refd)
R v Nightingale [2010] 2 Cr App R (S) 59 (not folld)
Rizal bin Abdul Razak v PP [2000] SGHC 148 (refd)
Seow Choon Meng v PP [1994] 2 SLR(R) 338; [1994] 2 SLR 853 (refd)
V Murugesan v PP [2006] 1 SLR(R) 388; [2006] 1 SLR 388 (refd)
Penal Code (Cap 224, 2008 Rev Ed) ss 375(2), 376(3) (consd); ss 375, 375(1), 375(1)(a), 376, 376(2)(a), 376A(1)(a)
Bhajanvir Singh, Kavita UthrapathyandKenneth Chin(Attorney-General's Chambers) for the Prosecution;
Peter Ong Lip Cheng (Templars Law LLC) for the Accused.
3 October 2016
Judgment reserved.
Woo Bih Li J:
1 The accused, Pram Nair (‘the Accused’), was convicted on 18 July 2016 in respect of the following two charges:
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(a) one charge of rape under s 375(1)(a) punishable under s 375(2) of the Penal Code (Cap 224, 2008 Rev Ed) (‘the Penal Code’); and
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(b) one charge of sexual assault by penetration (with his finger, also referred to as digital penetration) under s 376(2)(a) punishable under s 376(3) of the Penal Code.
2 The circumstances as to how the Accused committed the offences are set out in my judgment dated 18 July 2016 (PP v Pram Nair[2016] 4 SLR 880). I now have to address the issue of the appropriate sentences. I will refer to the victim in the present case as ‘the Victim’. She was intoxicated due to alcohol at the time of the offences. She was 20 years of age at the time of the offences while the Accused was 23 years of age then.
3 In so far as the offence of rape is concerned, both the Defence and the Prosecution relied on the case of PP v NF[2006] 4 SLR(R) 849 (‘NF’), a decision by V K Rajah J. In that case, Rajah J referred (at [19]) to the decision of the English Court of Appeal in R v William Christopher Millberry[2003] 2 Cr App R (S) 31, in which the court accepted the continued relevance and validity of the four broad categories of rape first articulated in R v Keith Billam(1986) 8 Cr App R (S) 48. Rajah J elaborated (at [20] and [21]) as follows:
20 At the lowest end of the spectrum are rapes that feature no aggravating or mitigating circumstances. The second category of rapes includes those where any of the following aggravating features are present:
(a) The rape is committed by two or more offenders acting together.
(b) The offender is in a position of responsibility towards the victim (eg, in the relationship of medical practitioner and patient, teacher and pupil); or the offender is a person in whom the victim has placed his or her trust by virtue of his office of employment (eg, a clergyman, an emergency services patrolman, a taxi driver or a police officer).
(c) The offender abducts the victim and holds him or her captive.
(d) Rape of a child, or a victim who is especially vulnerable because of physical frailty, mental impairment or disorder or learning disability.
(e) Racially aggravated rape, and other cases where the victim has been targeted because of his or her membership of a vulnerable minority (eg, homophobic rape).
(f) Repeated rape in the course of one attack (including cases where the same victim has been both vaginally and anally raped).
(g) Rape by a man who is knowingly suffering from a life-threatening sexually transmissible disease, whether or not he has told the victim of his condition and whether or not the disease was actually transmitted.
21 The third category of cases involves those in which there is a campaign of rape against multiple victims. The fourth category deals with cases where the offender “has manifested perverted or psychopathic tendencies or gross personality disorder, and where he is likely, if at large, to remain a danger to women for an indefinite time”: see Billam at 50–51.
4 Rajah J also said (at [24]) that the benchmark sentence for Category 1 rapes, without mitigating or aggravating factors, should be ten years' imprisonment and not less than six strokes of the cane as a starting point. Rajah J observed that this was already determined by the Court of Appeal in Chia Kim Heng Frederick v PP[1992] 1 SLR(R) 63 (‘Frederick Chia’). I should also point out that this benchmark applies to a contested case.
5 For Category 2 rapes, Rajah J cited a number of precedents. In many of these precedents, the accused was the father or stepfather of the victim. In one other precedent, the victim was a 13-year-old neighbour of the accused while in yet another precedent...
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