Public Prosecutor v BMF

• Jurisdiction: Singapore
• Judge: Valerie Thean J
• Judgment Date: 27 September 2019
• Neutral Citation: [2019] SGHC 227
• Court: High Court (Singapore)
• Docket Number: Criminal Case No 88 of 2017
• Year: 2019
• Published date: 16 April 2020
• Hearing Date: 02 July 2019,12 July 2019
• Plaintiff Counsel: Kavita Uthrapathy and Amanda Han (Attorney-General's Chambers)
• Defendant Counsel: Skandarajah s/o Selvarajah (S Skandarajah & Co) (instructed) and Sudeep Kumar (S K Kumar Law Practice LLP)
• Subject Matter: Criminal Law,Offences,Outrage of modesty,Fellatio,Criminal Procedure and Sentencing,Sentencing
• Citation: [2019] SGHC 227

Valerie Thean J: Introduction

The accused faced ten charges. On 2 July 2019, he pleaded guilty to, and was convicted of the following three charges: one charge of sexual assault by penetration of a person under 14 years of age, an offence under s 376(1)(a) of the Penal Code (Cap 224, 2008 Rev Ed) (“Penal Code”) punishable under s 376(4)(b) of the same (“the 4th Charge” which I later refer to as “the SAP Charge”); and two charges of aggravated outrage of modesty, punishable under s 354(2) of the Penal Code (“the 6th Charge” and “the 8th Charge”, collectively “the OM Charges”).

The accused admitted to seven other charges and consented to having these charges taken into consideration for the purposes of sentencing (“the TIC Charges”). The TIC Charges concerned the offence of aggravated outrage of modesty, punishable under s 354(2) of the Penal Code.

After considering the accused’s mitigation plea, the aggravating factors, the sentencing precedents, the Prosecution and Defence submissions on sentence and the TIC Charges, I imposed the following sentences: for the 4th Charge, 12 years’ imprisonment and 12 strokes of the cane; for the 6th Charge, 3 years’ imprisonment and 6 strokes of the cane; and for the 8th Charge, 3 years’ imprisonment and 6 strokes of the cane.

The terms of imprisonment for the 4th Charge and the 8th Charge were ordered to run consecutively, with the term of imprisonment for the 6th Charge to run concurrently. In the result, the aggregate term of imprisonment was 15 years, with effect from the date of remand on 14 May 2019, and 24 strokes of the cane. The accused has appealed against the sentences imposed and I furnish the grounds of my decision.

Facts

The material facts are as follows. The accused is presently 42 years old and is the victim’s stepfather. The victim is at present 12 years old and was between 8 and 9 years old at the time of the offences. The victim addressed the accused as “Abah”, which means father in the Malay language.

The accused married the victim’s mother, [N], sometime in 2013. The accused moved into [N]’s parents’ flat after their marriage (“the Flat”). The accused, [N], the victim and two of the victim’s step-siblings shared a bedroom with two beds (“the Bedroom”).

Although the victim slept on a separate bed from the accused, there were occasions when she slept with the accused and [N] on their bed. On these occasions, the accused would position himself between the victim and the wall. The accused would sleep in the middle, between [N] and the victim. There were also other occasions when the accused and the victim slept alone on either of the two beds.

The charges brought, including the TIC Charges, concerned offences which were committed from January 2015 to October 2016 in the Bedroom while everyone else was asleep. On most occasions, the sexual assaults took place while the accused was lying beside his wife on the same bed.

The three proceeded charges concerned three different incidents, which I now turn to.

The SAP Charge (the 4th Charge)

Sometime in 2015, the victim was lying on her own bed in the Bedroom when there was a heavy thunderstorm. She was scared and called out to the accused, who proceeded to lie down beside the victim on her bed. Thereafter, the victim fell asleep. The accused became sexually aroused and proceeded to engage in various sexual activities with the victim. Although the victim woke up when such activity occurred, she pretended to be asleep and stayed still.

The victim then felt something going into her mouth and realised that the accused was putting his penis into her mouth (ie, fellatio). While she tried to clamp shut her lips and close her mouth, she was unable to do so. She developed an itching sensation around her mouth as a result of the accused’s pubic hair and the pushing of his penis in and out of her mouth. She also felt some liquid in her mouth and was disgusted.

The OM Charges (the 6th Charge and 8th Charge)

The OM Charges related to two separate incidents.

The 6th Charge concerned an incident which occurred between January 2016 and September 2016. The victim was asleep in the Bedroom when the accused started kissing her. She was awakened by his tongue inside her mouth but pretended to be asleep. The accused pulled the victim’s panties down, took out his penis from his shorts and engaged in sexual activity with her. After lifting her onto her side such that her back was towards him, he rubbed his penis against her exposed anus until he ejaculated. The victim felt pain at her anal and vaginal area due to the accused’s vigorous rubbing motion.

The 8th Charge related to an incident which occurred either on 13 October 2016 or 14 October 2016. As with the 6th Charge, the victim was asleep in the Bedroom when the accused started kissing her. She pretended to be asleep although she had been awakened by his tongue inside her mouth. The accused took out his penis from his shorts and placed her hands on his penis. He also touched her chest and buttocks. Thereafter, the accused pulled the victim’s panties down and positioned himself above the victim. He then licked her vagina, such that she felt a tickling sensation. The accused subsequently used his finger and rubbed against the victim’s vagina, before re-positioning himself above her and rubbing his penis against her vagina. Throughout this incident, the victim continued to pretend to be asleep. She felt some pain and an itching sensation at her vagina.

On 17 October 2016, shortly after the incident relating to the 8th Charge took place, the victim’s biological father was about to send her back to the Flat when she began to cry hysterically. The victim refused to enter the Flat. The victim was brought downstairs when she then revealed that the accused had sexually assaulted her. A police report was lodged on 18 October 2016 and the accused was arrested on the same day.

The parties’ submissions on sentence

The Prosecution pressed for an aggregate sentence of at least 18 years’ imprisonment and 24 strokes of the cane. This comprised the following sentences: at least 14 years’ imprisonment and 12 strokes of the cane for the SAP Charge and at least 4 years’ imprisonment and 6 strokes of the cane for each of the OM Charges, with the sentence for the SAP Charge running consecutively with one of the OM Charges.

The Defence’s primary position was that the court ought to exercise judicial mercy on account of the accused’s glaucoma resulting in legal blindness. In the alternative, the Defence in written submissions suggested a global sentence of 12 years and 12 strokes of the cane, with 8 years and 12 strokes of the cane for the SAP Charge and 20 months and 3 strokes of the cane for each of the OM Charges. In oral submissions, Mr Skandarajah sought 8 to 10 years’ imprisonment for the SAP Charge and a year’s imprisonment for each of the OM Charges.

For completeness, I mention the history of the Defence’s position. The accused’s case was first fixed for a plea of guilt on 7 March 2019. On that occasion, the matter did not proceed because the accused disputed a part of the Statement of Facts (“SOF”). Initially the Prosecution wished to then make arrangements for a Newton hearing, but decided subsequently to amend the SOF. After the accused confirmed in a pre-trial conference with a Senior Assistant Registrar that he wished to plead guilty to the SOF, the matter was relisted and a Criminal Legal Aid Scheme (“CLAS”) counsel was arranged for the accused. On 14 May 2019, after his plea of guilt was taken and after the SOF was read, the accused disputed parts of the SOF, although he stated that he remained intent on pleading guilty. In the circumstances, I rejected the plea of guilt. Subsequently, the accused then indicated, before the Senior Assistant Registrar in another pre-trial conference, that he was no longer disputing the SOF and confirmed that he wanted to plead guilty. The matter was again relisted on 2 July 2019, when the accused admitted the SOF without any qualification and pleaded guilty. With the CLAS counsel having discharged himself on 14 May 2019, Mr Dhanwant Singh (“Mr Singh”), the new counsel for the accused, asked for an adjournment to prepare a further mitigation, to be used together with the mitigation and submissions that had been filed by CLAS counsel. The case was thus adjourned for mitigation and sentencing on 12 July 2019.

Prior to 12 July 2019, Mr Singh filed written submissions that criticised various introductory parts of the SOF. On 12 July 2019, Mr Singh was not present in court. Instructed counsel Mr Skandarajah appeared on behalf of the accused and was unable to explain the written submissions, because it had been filed by Mr Singh. When asked, the accused stated he was not aware of what was stated in the submissions filed. After the case was stood down for the accused to be advised by Mr Skandarajah, both Mr Skandarajah and the accused confirmed that the accused admitted to the SOF in its entirety, without any qualification as to any part of the SOF. Mr Skandarajah clarified that he was merely inviting the court to “focus on [the] facts relating to the charge[s]” within the SOF. I turn, then, to the charges.

The SAP Charge (the 4th Charge) The applicable sentencing framework

In Ng Kean Meng Terence v Public Prosecutor [2017] 2 SLR 449 (“Terence Ng”) at [47], the Court of Appeal set out a two-step sentencing framework for the offence of rape, involving the use of sentencing bands. The two-step framework in Terence Ng was later transposed to the offence of digital penetration in Pram Nair v Public Prosecutor [2017] 2 SLR 1015 (“Pram Nair”). The sentencing bands were calibrated downwards given that the offence of digital penetration was of a lesser gravity than rape (Pram Nair at [159]).

At the first step, the court should consider the offence-specific aggravating factors in...