Public Prosecutor v BUS

• Jurisdiction: Singapore
• Judge: Tan Siong Thye J
• Judgment Date: 03 December 2020
• Neutral Citation: [2020] SGHC 266
• Court: High Court (Singapore)
• Docket Number: Criminal Case No 38 of 2020
• Published date: 06 December 2020
• Year: 2020
• Hearing Date: 03 December 2020
• Plaintiff Counsel: Gail Wong and Sheryl Yeo (Attorney-General's Chambers)
• Defendant Counsel: Vigneesh s/o Nainar and Sadhana Devi d/o Daevnrd Rai (Law Society Pro Bono Services)
• Subject Matter: Criminal Law,Offences,Rape,Sexual assault by penetration,Criminal Procedure and Sentencing,Sentencing
• Citation: [2020] SGHC 266

Tan Siong Thye J (delivering the judgment of the court ex tempore): Introduction

The accused is [BUS], a 48-year-old male Singaporean. He has pleaded guilty to a charge of sexual assault by penetration (“the Charge”), which is an offence under s 376(2)(a) of the Penal Code (Cap 224, 2008 Rev Ed) (“Penal Code”), punishable under s 376(3) of the same. The charge reads as follows:

That you, [BUS],

between the night of 6 July 2018 and the morning of 7 July 2018, at [address redacted], Singapore, did sexually penetrate, with your finger, the vagina of [the victim], a 14-year-old female born on [date redacted], without her consent, and you have thereby committed an offence under section 376(2)(a) and punishable under section 376(3) of the Penal Code (Cap 224, 2008 Rev Ed).

The facts

The victim is the accused’s niece, who was 14 years old at the time of the offence. At the material time, the victim lived with her grandaunt. Prior to this arrangement she had lived with her grandparents who took her in after her parents’ divorce when she was very young.¹

The victim shared a close relationship with the accused’s daughters, who were around her age. On some weekends, she stayed over at the accused’s home (“the Flat”). When the victim slept over at the Flat, she usually slept on a mattress in the only bedroom in the Flat with two of the accused’s daughters. The accused, his wife, and their son slept in the living room of the Flat.²

The accused provided the victim with pocket money and ensured that she attended school regularly. When the accused brought his children out for gatherings, he also brought the victim along as well. The accused also bought food for the victim and treated her like his own child. The victim liked and respected the accused as an uncle.³

Facts relating to the Charge

On the night of 6 July 2018, the victim stayed over at the Flat as the victim’s father was getting re-married and she was invited to stay over so that they could attend as a family. That night, as the bedroom was in a mess, only one of the accused’s daughters slept in the bedroom. The accused’s other daughter and the victim slept on a blanket in the living room. The accused, his wife, and their son slept on another blanket in the same living room. The accused’s daughter was between the accused and the victim when the victim went to sleep. Sometime in the course of the night, the accused moved to be beside the victim, with his daughter on the other side.⁴

In the middle of the night, without the victim’s consent, the accused started to massage her and this woke her. The victim shifted her body to lie flat on her back, and the accused came on top of her. The victim opened her eyes and saw that it was the accused. The accused kissed her on her right cheek. The victim then went back to sleep as she thought that the accused had only meant to kiss her goodnight.⁵

Subsequently, the victim was awoken by a pain in her vagina. She opened her eyes and saw that the accused had placed his right hand into her shorts and underwear through the waist band and was sexually penetrating her vagina with his finger. This was done without her consent. Feeling afraid, the victim did not say anything and shut her eyes, pretending to be asleep. Unbeknownst to her, the accused had seen the victim open her eyes as he was penetrating her, but no consent was obtained from her.⁶ After the accused withdrew his finger from the victim’s vagina, he lifted her shirt with his other hand and touched her breasts without asking for her consent. The accused then sucked on the victim’s nipples without asking for her consent.⁷

A few minutes later, while the victim still pretended to be asleep, the accused sexually penetrated the victim’s vagina with his finger a second time, and moved his finger in and out of her vagina. The accused then withdrew his finger.⁸

A few minutes later, while the victim continued to pretend to be asleep, the accused sexually penetrated the victim’s vagina with his finger a third time, moving his finger in and out of her vagina. He also touched her breasts, and kissed the victim on the lips before going back to bed. The total duration of the penetration lasted several minutes.⁹ At all material times, the victim did not consent to any of the sexual acts performed on her by the accused.¹⁰

Events following the commission of the offence

On 15 August 2018, the victim informed her teacher that the accused had “fingered her”. On 27 August 2018, the victim met with the school counsellor and was brought for a medical assessment at a hospital. The victim was subsequently removed from her grandaunt’s house and placed in a voluntary welfare home.¹¹

On 27 August 2018, the accused was arrested by the police. The moment the police officers approached the accused and asked him if he knew the victim, the accused apologised and admitted to “fingering her vagina”.¹²

The accused’s plea of guilt

The accused has pleaded guilty to the Charge and he also admitted to the Statement of Facts without qualification. The accused’s counsel confirmed that the accused understood the nature and consequences of his plea, and intended to admit to the offence without qualification. Accordingly, I convict the accused on the Charge.

The accused has also consented to a similar charge being taken into consideration for the purpose of sentencing (“the TIC Charge”). The charge to be taken into consideration reads as follows:

That you, [BUS],

…

on 28 July 2018, sometime in the afternoon, at [address redacted], Singapore, did sexually penetrate, with your finger, the vagina of [the victim], a 14-year-old female born on [date redacted], without her consent, and you have thereby committed an offence under section 376(2)(a) and punishable under section 376(3) of the Penal Code (Cap 224, 2008 Rev Ed).

The statutorily prescribed sentence and sentencing guidelines The sentencing framework

Pursuant to s 376(3) of the Penal Code, the prescribed punishment for the Charge is imprisonment for a term which may extend to 20 years, with the accused also being liable to fine or caning.

It is not disputed that the applicable sentencing framework is that set out by the Court of Appeal in Pram Nair v Public Prosecutor [2017] 2 SLR 1015 (“Pram Nair”).¹³ The sentencing framework is as follows: the court must (a) identify the number of offence-specific aggravating factors in a case, (b) determine, based on the number and intensity of the aggravating factors, which of three sentencing bands the case falls under, (c) identify where precisely within the sentencing band the case falls in order to derive an indicative starting sentence, and (d) adjust that indicative sentence to reflect the presence of any offender-specific aggravating and mitigating factors (Pram Nair at [119], citing Ng Kean Meng Terence v Public Prosecutor [2017] 2 SLR 449 (“Terence Ng”) at [73]). In considering the number and intensity of the aggravating factors, the court is “guided not only by the number of offence-specific aggravating factors but also the seriousness of the particular factor vis-à-vis the offence committed” (see Public Prosecutor v BMF [2019] SGHC 227 (“BMF”) at [22]).

The sentencing bands are as follows (see Pram Nair at [122] and [159]; Public Prosecutor v BMU [2020] SGHC 231 (“BMU”) at [45]):

Band	Condition	Sentencing range
1	Cases with no offence-specific aggravating factors or where the factors are only present to a very limited extent	Seven to ten years’ imprisonment and four strokes of the cane
2	Cases with two or more offence-specific aggravating factors	Ten to 15 years’ imprisonment and eight strokes of the cane
3	Extremely serious cases due to the number and intensity of the aggravating factors	15 to 20 years’ imprisonment and 12 strokes of the cane

The Prosecution’s address on sentence

The Prosecution submits that the accused should be sentenced to 12 years’ imprisonment and eight strokes of the cane.¹⁴ The Prosecution raises three offence-specific factors: the accused’s abuse of position and betrayal of trust; the victim’s young age and vulnerability, arising partly from the fact that she was asleep when the accused first inserted his finger into her vagina; and the significant psychological harm caused to the victim.

Based on these factors, the Prosecution submits that the appropriate starting point is a sentence in the upper end of Band 2, specifically, 13 years’ imprisonment and 8 strokes of the cane.¹⁵

As regards the offender-specific factors, the Prosecution submits that the accused’s absence of antecedents is a neutral factor and should not be given mitigating effect. However, the Prosecution accepts that the accused’s timeous plea of guilt should be given mitigating effect, given that it indicates his remorse and he had thereby spared the victim from having to testify in court.¹⁶ As regards the aggravating offender-specific factors, the Prosecution submits that the TIC Charge, which is of a similar nature as the Charge and against the same victim, would ordinarily warrant an uplift in the sentence. The Prosecution also highlights that the sexual penetration in this case was sustained and highly intrusive.¹⁷

Taking all of this into account, the Prosecution submits that its proposed sentence of 12 years’ imprisonment and eight strokes of the cane is fair.¹⁸

The Defence’s plea in mitigation

The Defence submits that the accused should be sentenced to between eight and ten years’ imprisonment and eight strokes of the cane.¹⁹ As regards the offence-specific factors, the Defence submits that there are two in the present case: (a) the accused’s abuse of his position; and (b) the victim’s young age and thus, her vulnerability.²⁰

However, the Defence disagrees with the Prosecution’s submissions in two regards. First, the Defence submits that the factor raised by...