PP v Tan Meng Soon Bernard

• Jurisdiction: Singapore
• Judge: Valerie Thean J
• Judgment Date: 01 June 2018
• Court: High Court (Singapore)
• Docket Number: Criminal Case No 92 of 2017
• Date: 01 June 2018

Public Prosecutor

and

Tan Meng Soon Bernard

[2018] SGHC 134

Valerie Thean J

Criminal Case No 92 of 2017

High Court

Criminal Procedure and Sentencing — Sentencing — Sexual assault by penetration — Football coach performing fellatio on boys under 12 — Football coach pleading guilty to sexual assault by penetration of minor under 14 years of age under s 376(1)(b) Penal Code (Cap 224, 2008 Rev Ed) — Whether sentencing framework for rape or digital penetration should be applied to offence of fellatio — Section 376(1)(b) Penal Code (Cap 224, 2008 Rev Ed)

Criminal Procedure and Sentencing — Sentencing — Sexual assault by penetration — Offence-specific factors — Youth of victims — Abuse of trust — Premeditation and planning

Criminal Procedure and Sentencing — Sentencing — Sexual assault by penetration — Offender-specific factors — Plea of guilt — Possible history of sexual abuse — Low intelligence — Paedophilia — Lack of antecedents — Potential hardship to family — Multiple similar charges taken into consideration for purposes of sentencing — Specific and general deterrence

Held, sentencing the accused to 26 years' imprisonment and 24 strokes of the cane:

(1) It would not be appropriate to apply the sentencing bands in Terence Ng to the offence of fellatio charged under s 376 of the Penal Code. In Pram Nair, the Court of Appeal drew a distinction between rape and digital penetration because the latter carried no risk of pregnancy and was a relatively less intimate act. The same logic applied to cases of fellatio, which, when compared with rape, carried the same intelligible and defensible difference in offence severity that the Court of Appeal was concerned with. In this vein, our local legislative approach was different from that of several other jurisdictions, where legislation had expressly defined rape to include fellatio: at [23].

(2) On the other hand, the Pram Nair framework was a useful point of reference, so long as one was aware of the context in which the sentencing bands were set. The offence of sexual assault by penetration under s 376 of the Penal Code was introduced by Parliament in 2008. As a result of the above amendments, the Penal Code set one sentencing range for, and grouped together, many forms of sexual penetration under ss 376 and 376A; including penile penetration of the mouth or anus, and penetration of the vagina or anus with any object. Hence, while each provision in the Penal Code reflected some difference in the type of sexual act, the Penal Code, in terms of sentencing, did not draw bright lines separating one form of sexual penetration, not amounting to rape, from another. The sentencing approaches taken by other jurisdictions also did not show any sharp distinction between the various types of penetration not amounting to rape: at [24], [25], [27] and [28].

(3) While some of the previous local authorities drew a distinction, in terms of severity, between different sexual acts that could be charged under s 376 of the Penal Code, consideration of different sexual acts within a specific case was a different issue from that of applicable sentencing bands. These cases concerned multiple offending acts which were carried out in the same factual setting. When imposing sentence in an individual case, it was pertinent to impose different sentences for each type of sexual activity. This was for two reasons: first, to indicate the relative gravity of each offending act; and second, to ensure a correct overall sentence that reflected the totality of the criminal conduct. Thus, the differing gradations used in those cases were best explained in the light of the factual context and overall criminality of the specific cases: at [29].

(4) Across cases, however, which was the comparison that sentencing frameworks sought to draw, a gradation of sexual acts, while still technically relevant, could play a much smaller role, because the facts and circumstances of each case were unique, and the precise nature of the sexual act itself was part of a wider context and factual setting. A specific act of fellatio in a particular setting could cause much greater harm than another specific act of digital penetration in another setting. Therefore, it would be better to weigh the aggravating and mitigating factors in each case, using Pram Nair, very broadly speaking, as a conceptual frame. Moreover, if multiple frameworks were created for each different sexual act within s 376, the applicable bands might any event overlap to such an extent that it might not be useful to have separate ones for each of the disparate acts: at [30] and [31].

(5) A further point to consider was the previous sentencing norms set for fellatio. In PP v BAB[2017] 1 SLR 292 (“BAB”), the Court of Appeal held that in cases involving an abuse of trust, a starting point of ten to 12 years would be appropriate. The Court of Appeal in Pram Nair then remarked that the framework it set out in BAB could require review. The sentencing norm set out in BAB and the framework approach in Pram Nair could be reconciled when modified in the light of the Court of Appeal's concerns expressed in the latter case. The BAB sentencing norm should not be taken as a starting point but merely as guidance in the Band 2 analysis, which, under the Pram Nair framework, corresponded to an indicative range of ten to 15 years' imprisonment and eight strokes of the cane: at [33] to [35].

(6) Using Pram Nair as a broad framework, the offence-specific factors relevant to the first stage were the victims' youth (a statutory aggravating factor under s 376(4)(b) of the Penal Code), abuse of trust, and premeditation and planning. These placed the offences squarely within Band 2 of the Pram Nair framework: at [37] to [43].

(7) As for the offender-specific factors relevant to the second stage, a relevant mitigating factor was the accused's plea of guilt, which spared young victims the trauma of cross-examination and trial: at [45].

(8) There were three different aspects of the accused's psychiatric condition which were of concern in this case. The first was the evidence of paedophilia, which created a risk of re-offending. This was the basis of the Prosecution's submission that prevention and the protection of the public necessitated a higher sentence. While Dr Lee Kim Huat of the Institute of Mental Health stated that treatments for paedophilic disorders existed, he recognised that the evidence of the efficacy of such treatments was weak. In any event, there was a better chance of the accused obtaining treatment within prison: at [46], [52] to [54].

(9) The second and third aspects were relied upon by the Defence in mitigation: these were a possible history of sexual abuse and a previous low IQ diagnosis. On the latter, there was insufficient evidence that the accused was of a low IQ. On the former, there was no evidence of the extent of the trauma which the accused suffered as a result of a previous sexual abuse perpetrated on him. Further, there was no evidence of a causal link between the accused's unfortunate history of sexual abuse and his diagnosis of paedophilia. In addition, arguments which sought to render unlawful conduct excusable in this way must, as a matter of principle, be treated with caution, as they undermined acceptable societal standards and appropriate responses to trauma: at [47] to [51].

(10) The accused's lack of antecedents was given little weight as he had been charged with multiple offences, while the potential hardship to his family was not considered as the circumstances were not exceptional. On the other hand, the number of TIC charges was an aggravating factor: the accused committed offences multiple times against multiple victims. Finally, there was a need for both general and specific deterrence in this case: at [55] to [58].

(11) After weighing up the various issues and considering the objectives of parity, rank order and the spacing of penalties necessary in ensuring ordinal proportionality between the similar case of PP v Yap Weng Wah[2015] 3 SLR 297 and the case at hand, the accused was sentenced to 13 years' imprisonment on each proceeded charge, with two sentences to run consecutively, resulting in a total of 26 years' imprisonment. As for caning, the minimum prescribed punishment was 12 strokes of the cane per charge under s 376(4)(b) of the Penal Code. The accused was therefore ordered to receive a total of 24 strokes, the maximum permitted under s 328(6) of the Criminal Procedure Code (Cap 68, 2012 Rev Ed): at [61] to [65].

Case(s) referred to

Adam bin Darsin v PP [2001] 1 SLR(R) 709; [2001] 2 SLR 412 (refd)

ADF v PP [2010] 1 SLR 874 (refd)

AQW v PP [2015] 4 SLR 150 (refd)

Chang Kar Meng v PP [2017] 2 SLR 68 (refd)

Chen Weixiong Jerriek v PP [2003] 2 SLR(R) 334; [2003] 2 SLR 334 (refd)

Doe v Regina [2013] NSWCCA 248 (refd)

Lai Oei Mui Jenny v PP [1993] 2 SLR(R) 406; [1993] 3 SLR 305 (refd)

Lim Hock Hin Kelvin v PP [1998] 1 SLR(R) 37; [1998] 1 SLR 801 (refd)

Mohamed Shouffee bin Adam v PP [2014] 2 SLR 998 (refd)

Ng Kean Meng Terence v PP [2017] 2 SLR 449 (refd)

PP v BAB [2017] 1 SLR 292 (refd)

PP v BMD [2013] SGHC 235 (refd)

PP v Goh Jun Guan [2017] SGHC 2 (refd)

PP v Law Aik Meng [2007] 2 SLR(R) 814; [2007] 2 SLR 814 (refd)

PP v Yap Weng Wah [2015] 3 SLR 297 (refd)

Pram Nair v PP [2017] 2 SLR 1015 (refd)

R v Arcand [2010] AJ No 1383 (refd)

R v Hajar 2016 ABCA 222 (refd)

Facts

The accused was a coach of a football team comprising mostly primary school boys aged 12 or below. He organised training sessions for the boys every Friday afternoon, Saturday morning and Sunday morning. These training sessions were held at an open field beside a community club, where the accused and the boys usually changed and showered after training. On many occasions, the accused had meals with the boys, brought the boys from their homes to the training venue, and sent them home. He also visited some of the boys at their homes...