Public Prosecutor v UI

• Jurisdiction: Singapore
• Judge: Chan Sek Keong CJ
• Judgment Date: 05 August 2008
• Neutral Citation: [2008] SGCA 35
• Date: 05 August 2008
• Subject Matter: Possible exception to general principle where forgiveness provided evidence that victim's psychological and/or mental suffering as result of offender's criminal conduct must be very much less than would normally be the case,Sentencing,Serial nature of offences being aggravating factor,Sentence overly lenient and unprecedented,Familial relationship of authority and trust between offender and victim being aggravating factor,Mitigation,Criminal Procedure and Sentencing,Offence of rape of woman below age of 14 under s 376(2) of the Penal Code,Aggravating factors,Extra acts of perversion being aggravating factor,General principle that forgiveness should have little weight as mitigating factor,Charge,Appeals,Sentence increased to 24 years' imprisonment,General principle that not proper for court to depart from sentencing precedents without cogent reasons,Section 178 Criminal Procedure Code (Cap 68, 1985 Rev Ed),Possible exception to general principle where sentence aggravated distress of victim,Benchmark sentencing range of 12-15 years' imprisonment,Age of victim per se not being additional aggravating factor,Forgiveness of offender by victim as mitigating factor,General principle that mature age of offender will carry little weight in sentencing,High court,Principles regarding use of sentencing precedents,Outstanding offences,General principle that offences to be taken into account should have effect of increasing sentence which court would otherwise have imposed for offences actually proceeded with,Benchmark sentences,Court should not impose sentence that effectively amounted to life sentence unless Legislature had prescribed life sentence for offence,Age as mitigating factor,Minimum sentence of 16 years' imprisonment meted out by trial judge,Principles regarding taking outstanding offences into consideration for purposes of sentencing,Exception where sentence was long term of imprisonment,Courts and Jurisdiction
• Docket Number: Criminal Appeal No 10 of 2007
• Published date: 08 August 2008
• Defendant Counsel: Respondent in person
• Court: Court of Appeal (Singapore)
• Plaintiff Counsel: Daniel Koh and Charlene Tay (Attorney-General's Chambers)

5 August 2008

Chan Sek Keong CJ (delivering the grounds of decision of the court):

Introduction

1 This was an appeal by the Prosecution against the sentence imposed for the offence of rape of a woman under the age of 14 (which we will also refer to as “rape of a young girl”). This offence, which is a form of aggravated rape, is punishable under s 376(2) of the Penal Code (Cap 224, 1985 Rev Ed) with imprisonment for a term of not less than eight years and not more than 20 years, as well as with caning of not less than 12 strokes (cf the punishment for rape simpliciter, which is “imprisonment for a term which may extend to 20 years ... and ... fine or ... caning” (see s 376(1) of the Penal Code)).

2 The respondent in the present appeal (“the Respondent”) pleaded guilty to three charges of rape under s 376(2) of the Penal Code (“the Rape Offences”), and agreed that the court should take into account, for the purposes of sentencing, two other charges of rape under s 376(2) of the Penal Code and five charges of outrage of modesty under s 354 of the Penal Code (collectively referred to as “the Outstanding Offences”). The offences set out in these ten charges were committed by the Respondent against his natural daughter (“the Victim”) when she was aged between ten and (below) 14.

3 The trial judge (“the Judge”) sentenced the Respondent to the minimum punishment mandated by s 376(2) of the Penal Code, viz, eight years’ imprisonment, for each of the Rape Offences (see PP v UI [2007] 4 SLR 270 (“the Judgment”)). Two of the imprisonment terms were ordered to run consecutively as required by s 18 of the Criminal Procedure Code (Cap 68, 1985 Rev Ed). Accordingly, the total punishment meted out to the Respondent was 16 years’ imprisonment, and this was backdated to his date of remand (ie, 31 December 2006). The punishment of caning was not applicable to the Respondent as he was above the age of 50 at the date of his conviction (see s 231(c) of the Criminal Procedure Code).

4 The Prosecution appealed against the sentence on the ground that it was manifestly inadequate having regard to, inter alia, the sentencing precedents for similar offences. (Indeed, the present case was the first instance of the High Court imposing the minimum sentence for the offence under s 376(2) of the Penal Code.) At the conclusion of the hearing, we allowed the appeal and increased the term of imprisonment for each of the Rape Offences to 12 years, with two of the terms of imprisonment to run consecutively, making a total of 24 years’ imprisonment. We now give the reasons for our decision.

The facts

5 The Respondent is a male Eurasian aged 55. Prior to his arrest, he worked as a part-time security guard. He married in 1984 and had a son in 1986. He subsequently became estranged (but not divorced) from his wife and began cohabiting with a former colleague in 1990. This latter relationship led to the birth of the Victim in 1992 and the Victim’s sister in 1997.

6 The Respondent’s sexual offences against the Victim began in 2002 when she was ten years old. Investigations revealed that the Respondent raped the Victim on at least four occasions in 2005 and one occasion in 2006, and outraged her modesty on no less than five occasions between 2002 and 2006. Arising from these incidents (which the Respondent admitted to), the Respondent was charged with the following:

(a) one count of outrage of modesty by inserting a finger into the Victim’s vagina, committed sometime in 2002;

(b) one count of outrage of modesty by inserting a finger into the Victim’s vagina, committed sometime in 2003;

(c) one count of rape, committed sometime between January 2005 and February 2005;

(d) one count of rape, committed sometime between March 2005 and April 2005;

(e) one count of rape, committed sometime in June 2005;

(f) one count of rape, committed sometime between November 2005 and December 2005;

(g) one count of outrage of modesty by inserting a finger into the Victim’s vagina, committed sometime between January 2006 and March 2006;

(h) one count of rape, committed sometime in March 2006;

(i) one count of outrage of modesty by inserting a finger into the Victim’s vagina, committed sometime between April 2006 and 13 June 2006; and

(j) one count of outrage of modesty by inserting a finger into the Victim’s vagina, committed sometime in November 2006.

7 The offences came to light in December 2006 when the Victim was reprimanded for misbehaviour by a maternal aunt. The aunt told the Victim that she should not misbehave as her parents loved her. In response, the Victim retorted that she did not like the love that her father (ie, the Respondent) gave to her. When questioned on what she meant, the Victim told the aunt about the various sexual acts committed against her by the Respondent. The aunt informed the Victim’s mother of what the Victim had told her. After a discussion, they reported the matter to the police.

8 The Respondent, when arrested on 31 December 2006, readily confessed to having raped and outraged the modesty of the Victim. In the High Court, he pleaded guilty to the third, fifth and eighth of the charges enumerated at [6] above (ie, the Rape Offences). The facts relating to these offences were similar. During the material period, the Victim shared a double-decker bed with her sister and slept on the top deck. The Respondent would enter the Victim’s bedroom at night while everyone else was asleep and would proceed to touch the Victim’s body while standing on the bed frame of the lower deck. After touching the Victim’s body for some time, he would remove her shorts and panties, spread her legs and penetrate her vagina with his penis. After a while, he would withdraw his penis and make the Victim masturbate him with her hands until he ejaculated.

The proceedings in the High Court

Submissions on sentencing

9 In the High Court, the Prosecution pressed for a deterrent sentence as it felt that this was warranted, given the nature of the Rape Offences and the relationship between the Respondent and the Victim. For guidance and assistance in determining the appropriate sentence, the Prosecution provided the Judge with a series of similar cases from the last decade where the courts had consistently imposed sentences which were much higher than the mandatory minimum sentence prescribed by s 376(2) of the Penal Code. The most pertinent cases (some of which were not actually cited directly by the Prosecution, but were instead to be found within the cases provided) included the following:

(a) In PP v Radhakrishna Gnanasegaran Criminal Case No 14 of 1999 (27 April 1999) (unreported), the offender raped his daughter over a period of ten years from the time when she was seven years old. He was convicted of, inter alia, four charges of aggravated rape under s 376(2) of the Penal Code and was sentenced, on each charge, to 15 years’ imprisonment and 12 strokes of the cane. Two of the sentences were ordered to run consecutively, making a total of 30 years’ imprisonment and 24 strokes of the cane (id at [138]). This sentence was subsequently affirmed by this court in Criminal Appeal No 9 of 1999.

(b) In PP v Peh Thian Hui [2002] 3 SLR 268, the offender raped his girlfriend’s daughter over a period of five years which began from the time when she was nine years old. He pleaded guilty to, inter alia, five charges of aggravated rape under s 376(2) of the Penal Code and was sentenced, on each charge, to 12 years’ imprisonment and 15 strokes of the cane. Three of the sentences were ordered to run consecutively, making a total of 36 years’ imprisonment and (as a result of s 230 of the Criminal Procedure Code) 24 strokes of the cane. The offender’s appeal to the Court of Appeal (viz, Criminal Appeal No 8 of 2002) was dismissed.

(c) In PP v MW [2002] 4 SLR 912, the offender raped his daughter on several occasions when she was just below the age of 14 as an act of revenge against her mother for divorcing him. He pleaded guilty to three charges of aggravated rape under s 376(2) of the Penal Code and was sentenced, on each charge, to 12 years’ imprisonment and 12 strokes of the cane. Two of the sentences were ordered to run consecutively, making a total of 24 years’ imprisonment and 24 strokes of the cane.

(d) In PP v MV [2002] SGHC 161, the offender raped his stepdaughter on several occasions when she was aged between eight and 13. He pleaded guilty to three charges of aggravated rape under s 376(2) of the Penal Code and was sentenced, on each charge, to 12 years’ imprisonment, with two of the sentences to run consecutively, making a total of 24 years’ imprisonment. As he was above the age of 50, the punishment of caning was not applicable.

(e) In PP v MX [2006] 2 SLR 786, the offender pleaded guilty to, inter alia, four charges of aggravated rape under s 376(2) of the Penal Code. The victims were his five daughters from his various wives (he had a total of four legal wives and six contractual wives). Two of his daughters became pregnant as a result of the rapes. He was sentenced, on each charge, to 12 years’ imprisonment and 12 strokes of the cane. One of these sentences was ordered to run consecutively with two of the sentences imposed in respect of five charges of rape simpliciter under s 376(1) of the Penal Code. (The offender had likewise pleaded guilty to the charges under s 376(1), and had been sentenced to ten years’ imprisonment and eight strokes of the cane for each of these charges.) The total sentence was thus 32 years’ imprisonment and (as a result of s 230 of the Criminal Procedure Code) 24 strokes of the cane.

(f) In PP v NF [2006] 4 SLR 849 (where the offence in question was rape simpliciter under s 376(1) of the Penal Code, as opposed to aggravated rape under s 376(2)), V K Rajah J expressed the opinion that a review of the sentencing practice for rape cases was necessary. To this end, Rajah J set out four broad categories of rape, as follows (at...