Public Prosecutor v AOM

• Jurisdiction: Singapore
• Judge: Steven Chong J
• Judgment Date: 07 February 2011
• Neutral Citation: [2011] SGHC 29
• Court: High Court (Singapore)
• Hearing Date: 26 October 2010
• Docket Number: Criminal Case No 28 of 2010
• Plaintiff Counsel: Gail Wong and Lee Lit Cheng (Attorney-General's Chambers)
• Defendant Counsel: Defendant in person.
• Subject Matter: Criminal Procedure and Sentencing,Mitigation,General principle that consent is not a relevant mitigating factor for offences of statutory rape and sexual penetration of a minor,General principle that absence of aggravating factor cannot ipso facto constitute a mitigating factor,Sentencing,Aggravating factors,Offences of rape of minor below 14 years of age punishable under s 376(1) of the Penal Code (1985 Rev Ed) and s 375(2) of the Penal Code (2008 Rev Ed),Offences of sexual penetration of a minor under 16 years of age punishable under s 376A(2) of the Penal Code (2008 Rev Ed),Long period of sexual offences,Abuse of position of trust and authority,Exploitation of victim's innocence,Serious psychological and emotional harm caused,Transmission of sexual disease
• Published date: 14 February 2011

Steven Chong J: Introduction

The defendant (also referred to as [AOM]) pleaded guilty to and was convicted of the following charges: (a) Two charges of rape of a minor below 14 years of age (“statutory rape”) punishable under s 376(1) of the Penal Code (Cap 224, 1985 Rev Ed); (b) One charge of rape of a minor below 14 years of age (“statutory rape”) punishable under s 375(2) of the Penal Code (Cap 224, 2008 Rev Ed); and (c) One charge of sexual penetration (penile-vaginal) of a minor below 16 years of age punishable under s 376A(2) of the Penal Code (Cap 224, 2008 Rev Ed).

In addition, the defendant consented to seven other charges to be taken into consideration (“TIC”) for the purposes of sentencing. They are, in particular: (a) Two charges of statutory rape punishable under s 376(1) of the Penal Code (Cap 224, 1985 Rev Ed); (b) Two charges of statutory rape punishable under s 375(2) of the Penal Code (Cap 224, 2008 Rev Ed); (c) Two charges of sexual penetration (penile-vaginal) of a minor below 16 years of age punishable under s 376A(2) of the Penal Code (Cap 224, 2008 Rev Ed); and (d) One charge of sexual penetration (digital-vaginal) of a minor below 16 years of age punishable under s 376A(2)of the Penal Code (Cap 224, 2008 Rev Ed).

After considering the defendant’s mitigation plea, the aggravating factors, the sentencing precedents, the Prosecution’s submissions on sentencing, and the TIC charges, I imposed the following sentences on the defendant: (a) 13 years’ imprisonment and 12 strokes of the cane for each charge of statutory rape under s 376(1) of the Penal Code (Cap 224, 1985 Rev Ed) and s 375(2) of the Penal Code (Cap 224, 2008 Rev Ed); and (b) 7 years’ imprisonment for the charge of sexual penetration (penile-vaginal) of a minor below 16 years of age under s 376A of the Penal Code (Cap 224, 2008 Rev Ed).

I ordered the sentences for the two charges under s 376(1) to run consecutively, with the other sentences to run concurrently. In total, the defendant was ordered to serve 26 years’ imprisonment (with effect from the date of arrest on 6 October 2009), and ordered to suffer 24 strokes of the cane. The defendant has since appealed against the sentences imposed. I now set out the reasons for the sentences.

Facts

Sometime in 2005, the victim’s parents were divorced and the victim’s mother was granted sole custody of the victim. The defendant was in a sexual relationship with the victim’s mother. The defendant resided at [the Flat] with the victim and the victim’s mother. The victim was entrusted to the defendant’s care, acting as her de facto guardian and the victim effectively regarded the defendant as her father. As the victim was afraid of the dark, she would at times sleep with her mother and the defendant in their bedroom on the same bed.

The victim was only 12 years old when she was first sexually assaulted by the defendant. The defendant started touching the victim’s breasts and vulva in 2007 when she was a Primary Six student. The first act of statutory rape took place in mid-2007. At that time, the victim did not know what sexual intercourse entailed. The defendant continued to commit statutory rape on the victim on several occasions when the victim’s mother was not at home.

Sometime in 2008, the victim’s mother obtained employment in a company located in Jurong. The victim’s mother moved to an address in Jurong to be closer to her office. Thereafter, the relationship between the victim’s mother and the defendant came to an end. The victim, however, continued to reside with the defendant at the Flat on weekdays as the Flat was closer to the victim’s school. The victim would spend weekends and school holidays at her mother’s place in Jurong. Throughout this period of time, the victim’s mother had entrusted the victim to the defendant’s care. In August 2009, the victim moved out of the Flat to stay with her mother permanently after the defendant had informed the victim’s mother that the power supply to the Flat might be cut off as he had not paid the power bill. The victim would return to the Flat from time to time to collect her belongings. On occasions when the victim and the defendant were alone in the Flat between February and October 2009, the defendant repeated his acts of sexual penetration on the victim.

The defendant exploited the naivety of the victim by misleading her into believing that he had sex with her so that she would not be curious about sex and be cheated in the future. The defendant had also instructed the victim not to reveal their sexual intercourse to anyone, as he would be arrested, jailed and caned. It appeared that the victim did believe what she was told by the defendant. After receiving sex education in school when she was in Secondary Two (in 2009), the victim realised that what the defendant had been doing to her was wrong. Thereafter, the victim actually tried to stop the defendant on a few occasions when the defendant sexually assaulted her, but was at the same time fearful that the defendant would be annoyed with her. In the meantime, the victim did not tell anyone about the sexual assaults as she did not want the defendant to go to jail. She cared for the defendant and had treated him like her own father.

On 5 October 2009, the victim’s mother asked the victim whether she was still a virgin. That was when the victim first disclosed to her mother the details of the multiple sexual assaults committed by the defendant. On 6 October 2009, the victim’s mother confronted the defendant. The defendant initially denied having ever touched the victim. However, after some probing by the victim’s mother, the defendant eventually admitted that he had had sexual intercourse with the victim. The victim’s mother asked him to turn himself in to the police, but the defendant asked for one month to settle his personal matters. The victim’s mother initially agreed to the defendant’s request on condition that the defendant handed over his passport to her and on his written confirmation that he would turn himself in. Subsequently the victim’s mother changed her mind and insisted that the defendant surrendered himself to the police immediately.

On 6 October 2009, the defendant was arrested after he turned himself in at a police post. The defendant confessed to the police that he had been having sex with the victim. Thereafter a police report was lodged by the victim after the police contacted the victim’s mother following the defendant’s surrender. The defendant is at present 43 years of age. He admitted to the Statement of Facts tendered by the Prosecution (“SOF”) without qualification.

At the hearing before me, the Prosecution pressed for a sentence in excess of 24 years’ imprisonment with 24 strokes of the cane. At the hearing, the defendant submitted a written mitigation plea. In paragraph two of his mitigation plea, the defendant alleged that the facts as presented by the Prosecution were “unfair, unreasonable, falsely incriminated and distorted with many doubtful points”. When I highlighted to him that this aspect of his mitigation plea was in direct conflict with his unqualified admission to the SOF, the defendant informed the Court that he wished to delete it from his mitigation plea. I however advised the defendant that the decision was entirely up to him, and he should proceed as he deemed appropriate¹. He then confirmed his decision to delete the second paragraph of his mitigation plea². In the defendant’s mitigation, he alleged that the sexual intercourse was consensual. He also sought to emphasise that no force, weapons, drugs or alcohol was used in the commission of the offences. He also sought to attach weight to his guilty plea. I have considered and dealt with each of these alleged mitigating factors in my decision below. Before embarking on an examination of these factors, it would be appropriate to set out the sentencing benchmarks that are relevant to the present case.

The decision Sentencing precedents

In Public Prosecutor v NF [2006] 4 SLR(R) 849 (“PP v NF”), the accused pleaded guilty to a charge of rape under s 376(1) of the Penal Code (1985 Rev Ed). The accused was the biological father of the 15 year old victim. V K Rajah J (as he then was) expressed the opinion that a review of the sentencing practice for rape cases was due and necessary. He set out four broad categories of rape. For the first category of rape ("Category 1 rape"), it was observed that (see [20]):

At the lowest end of the spectrum are rapes that feature no aggravating or mitigating circumstances.

The second category of rape includes rape where aggravating factors are present ("Category 2 rape") (see PP v NF at [20]):

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...