Public Prosecutor v Siow Kai Yuan Terence

1. Introduction

2. [2]

   [2] The present case concerned an offender who outraged the modesty of a victim while using the public transport network. He was, and remains, a university undergraduate with a seemingly bright future. The learned District Judge (“DJ”) sentenced him to probation and rejected the Prosecution’s submission for a six-week custodial sentence. The DJ explained her decision in a judgment spanning 16 pages. Among the principal factors she took into account in preferring a non-custodial sentence were the relative gravity (or lack thereof) of the offences committed and the fact that because of the offender’s academic record and potential, the chances were high that he could be successfully rehabilitated.

3. [3]

   [3] In doing this, the DJ was not adopting an approach that was unprincipled. Nor was it especially remarkable. She was certainly not suggesting that undergraduates were a privileged class immune from the usual consequences visited upon those who break the law. Unfortunately, that is how some have interpreted her decision. This is regrettable, to say the least, because there are few things more corrosive of the legitimacy of the judiciary, upon which the justice system is founded, than the perception that it is stacked in favour of any individual or class. And, that is especially regrettable, where, as is the case here, it is wholly without basis.

4. [5]

   [5] On the specific relevance of an offender’s educational background, I can do no better than to refer to these observations of Steven Chong JA in Praveen s/o Krishnan v Public Prosecutor [2018] 3 SLR 1300 (“Praveen”) at [45]:

5. [6]

   [6] The question in each case is ultimately the same: what is the most appropriate sentence that fits the circumstances of the particular offender and the particular offence before the court. As I have already noted, judges are there to balance considerations that can, and often do, pull in different directions, in an endeavour to reach what they hope will be the right answer in each case. But, in seeking that answer, the social status of the offender is invariably irrelevant because in the eyes of the law, all are equal before it.

6. Facts

7. [7]

   [7] The facts in this matter are relatively simple and not in dispute. Terence Siow Kai Yuan (“the Respondent”) was 22 years of age when he saw the victim taking a seat on the train. He decided to sit beside her and, feeling an urge, used his left hand to touch the side of the victim’s right thigh. The victim shifted away from the Respondent, and crossed her right thigh over her left leg. Undeterred, the Respondent again used his left hand to touch the side of the victim’s right thigh.

8. [8]

   [8] The victim then moved one seat away from the Respondent. When she alighted at her station, the Respondent alighted with her. It is not disputed that this was not done with a view to stalking the victim as the Respondent had intended to alight at the station in any event.

9. [9]

   [9] After alighting, the Respondent followed the victim. Again, he felt the urge to touch her. While they were ascending the escalator, he stood behind the victim and used his finger to touch her buttocks over her shorts.

10. [10]

    [10] The victim immediately turned around and saw the Respondent. She shouted at him, and he quickly walked towards the control station. The victim then informed the station officer that she had been molested, pointing to the Respondent. Meanwhile, the Respondent hastened to the exit and left the station. The police were notified, and the victim duly made a police report.

11. [11]

    [11] Following investigations, the Respondent was arrested and eventually charged with offences arising out of these acts against the victim. By the time he entered his plea, the Respondent was 23 years of age. He pleaded guilty to one charge of outraging the victim’s modesty by touching her buttocks over her shorts with his finger while on the public transport network (“the proceeded charge”). He consented to two other charges, concerning his touching of the victim’s thigh, being taken into consideration for the purpose of sentencing (“the TIC charges”). At the time of sentencing, the Respondent was untraced.

12. Conduct of proceedings below

13. [12]

    [12] In her submissions on sentence, the learned Deputy Public Prosecutor Deborah Lee (“DPP Lee”) sought a custodial term of at least six weeks’ imprisonment. This was arrived at by the application of the offence-specific and offender-specific factors that were identified in Kunasekaran s/o Kalimuthu Somasundara v Public Prosecutor [2018] 4 SLR 580 (“Kunasekaran”) (at [45]), being factors that are relevant when sentencing for outrage of modesty offences under s 354(1) of the Penal Code (Cap 224, 2008 Rev Ed) (“Penal Code”). In DPP Lee’s view, the present case fell within the higher end of Band 1 of the Kunasekaran framework.

14. [13]

    [13] In mitigation, counsel for the Respondent, Mr Raphael Louis (“Mr Louis”), made a number of points that can broadly be grouped into three main points:

15. (a) The Respondent was only 22 years old at the time of the offence, which was a year past the age of majority. Mr Louis suggested that in these circumstances, the court should give due consideration to the fact that he was just past the age at which a primarily rehabilitative sentencing option, such as probation, would have been presumptively applied.

16. (b) The Respondent was still in university with a strong academic record and this suggested that he had a strong propensity for reform and rehabilitation.

17. (c) Consideration should be given to avoiding further unnecessary disruption to his studies as he had already been suspended from the university for one semester because of these offences. Since it is plain that this could not have been based on the Respondent’s convenience, I take it that it was raised in the context of seeking to maximise the Respondent’s prospects of rehabilitation.

18. [14]

    [14] In addition, Mr Louis pointed to the fact that the Respondent had sent a letter of apology to the victim. In all the circumstances, he urged the DJ to call for a probation report with a view to assessing the Respondent’s suitability for probation.

19. [15]

    [15] DPP Lee countered some of these points, noting that because the Respondent was over the age of majority, deterrence rather than rehabilitation was the dominant sentencing consideration, and that this would be so unless the Respondent could demonstrate an extremely strong propensity for reform and/or exceptional circumstances. In short, while probation was not necessarily excluded, it would only be selected exceptionally.

20. [16]

    [16] Having heard the parties, the DJ held that, “on the balance”, a probation report ought to be called. Sentencing was therefore adjourned to enable the preparation of the report.

21. The probation report

22. [18]

    [18] In her assessment, the Probation Officer noted that the psychologist, Ms Jodi Chiang, had assessed the Respondent’s risk of sexual re-offending to be “moderate”. In this respect, a number of risk factors were identified:

23. (a) The modus operandi and offending behaviour suggested boldness in his actions and cognitive distortions towards sexuality and social boundaries.

24. (b) His involvement in these offences suggested an inability to manage his stressors and desire for sexual gratification pro-socially. This led him to devise deviant methods to gain pleasure with little regard for the nature of his actions.

25. (c) His consumption of and exposure to pornography increased his sexual preoccupation and contributed to the cognitive distortions mentioned at [18(a)] above.

26. (d) The Respondent admitted to the Probation Officer that he was “usually attracted to exposed skin on females and engaged in sexual fantasies”. He also admitted to have “previously also touched other females in crowded buses or trains but managed to escape detection.” While he “[w]as unable to recall the number of times” he had done so, he “reported that the behaviour started when he commenced university in Aug[ust] 2016.” His previous successes in avoiding detection for these inappropriate acts towards other females, coupled with a lack of moral guidance from his parents, had emboldened him to continue with such behaviour.

27. (e) The Respondent’s parents failed to supervise his private and online activities and were oblivious to his unhealthy exposure to pornography. In this regard, aside from the Respondent’s consumption of pornography, he admitted that he had started drinking in 2016 during an orientation camp in school. According to him, he had consumed “Soju” on the day of the offence which impaired his thinking.

28. [19]

    [19] On the other hand, the following protective factors were also identified:

29. (a) The Respondent had received positive reports from his school and his National Service supervisors. His good behavior across various settings suggested that he was able to behave pro-socially when guided closely.

30. (b) He had maintained good academic performance through the years, which highlighted his potential to excel in life.

31. (c) He expressed willingness to receive offence-specific intervention.

32. (d) A time restriction had been implemented on a trial basis. He had adhered to this, thus demonstrating the capacity to be responsible and disciplined.

33. (e) His parents had expressed their willingness to work towards improving their parenting skills and communication with the Respondent.

34. (f) There was an absence of other anti-social behaviours, which suggested a positive prognosis for his rehabilitation.

35. [20]

    [20] In all the circumstances, the Probation Officer assessed probation to be a suitable option for the Respondent.

36. Sentencing the Respondent to probation

37. [21]

    [21] On 25 September 2019, after the probation report had been prepared, the learned Deputy Public Prosecutor Benedict Chan (“DPP Chan”) and Mr Louis appeared before the DJ to make submissions on whether probation would be the appropriate sentence for the Respondent.

38. [22]

    [22] DPP Chan emphasised the seriousness of the offence and the fact that it had taken place while the Respondent and the victim were using the public transport network, which has been held to be an aggravating factor. He pointed out that the High Court in Kunasekaran (supra [12]) had observed (at [58]) that general deterrence ought to be the predominant sentencing consideration when such offences were committed in this setting. In these circumstances, unless an adult offender, such as the Respondent, had an extremely strong propensity for reform or was able to point to exceptional circumstances, he should not be granted probation. DPP Chan also observed from the probation report that the Respondent had committed similar offences since 2016, which suggested a deeper problem. As he considered that there was nothing to deviate from the sentencing norm for similar cases involving adult offenders, he, like DPP Lee, sought an imprisonment term of six weeks.

39. [23]

    [23] In reply, Mr Louis submitted that the Respondent did indeed demonstrate a strong propensity for reform, pointing to the following: (a) he was still pursuing his education; (b) he had remained free of any criminal behavior since the offence; (c) he had sought and obtained counselling; (d) he had made a conscious effort to seek treatment to address his sexual urges; and (e) he had been very candid during the interview and admitted to his prior conduct of touching other females, which was a “clear indication of remorse”.

40. [24]

    [24] Having heard the submissions and considered the contents of the probation report, the DJ found that the Respondent had “demonstrated an extremely strong propensity for reform”. While he was 22 years old at the time of the offence, which suggested that deterrence was presumptively the dominant sentencing consideration, she noted that “the nature of the acts [were] relatively minor”. She also had regard to the Respondent’s academic record, which suggested a good prognosis. In all the circumstances, she considered that “the sentencing of probation [was] the most appropriate disposition”. Accordingly, in line with the Probation Officer’s recommendation, the DJ sentenced the Respondent to 21 months’ supervised probation with time restrictions from 11pm to 6am daily. He was also required to serve 150 hours of community service, and to attend offence-specific treatment programmes.

41. Stay of sentence

42. The DJ’s decision

43. [26]

    [26] In her grounds of decision, (see Public Prosecutor v Terence Siow Kai Yuan [2019] SGMC 69 (“the GD”)), the DJ recognised that “age is a critical factor and the imposition of probation for adult offenders is the exception rather than the norm” [emphasis added], with one such exception arising where the offender demonstrates an “extremely strong propensity for reform” (the GD at [23]).

44. [27]

    [27] Furthermore, the DJ observed that, even if the adult offender is found to have demonstrated an “extremely strong propensity for reform”, this “can be eclipsed or diminished by considerations of deterrence or retribution if the circumstances warrant”. Broadly speaking, this may be case where (a) the offence is serious; (b) the harm caused is severe; (c) the offender is hardened and recalcitrant; or (d) the conditions do not exist to render rehabilitative sentencing options viable (citing Public Prosecutor v Lim Chee Yin Jordon [2018] 4 SLR 1294 (“Jordon Lim”) at [35]): the GD at [24]).

45. [28]

    [28] On the present facts, the DJ observed that while the offences were serious in nature, their particular manifestation in terms of the intrusions in this case were relatively minor. Specifically, it involved “a brief and light touch with one finger” (for the proceeded charge) and “momentary touches to the side of the thigh” (for the TIC charges) (the GD at [41] and [51]). Nonetheless, in the light of the setting of the offences, namely that these had occurred on public transport, and the fact that there were three offences (including the TIC charges) against the victim, the DJ held that the custodial threshold would in principle be crossed. However, she considered that the case would fall within the lower end of Band 1 of the Kunasekaran framework, warranting an imprisonment term of two weeks at the highest (the GD at [42]).

46. [29]

    [29] The DJ also observed that the Respondent had pleaded guilty at the earliest time and spared the victim any further anguish. Further, the investigation officer reported that the Respondent had been co-operative during investigations. In the circumstances, she accepted that his plea of guilt had been motivated by regret and accorded weight to this (the GD at [50]).

47. [30]

    [30] Turning to the appropriate sentencing principles, the DJ recognised that deterrence would ordinarily be the dominant sentencing consideration for such a case. However, considering that the nature of the intrusions was relatively minor and also that the overall gravity of the offences here fell at the lower end of Band 1, she determined that rehabilitation should be given prominence notwithstanding the need for deterrence (the GD at [51]).

48. The parties’ submissions

49. The Prosecution’s submissions

50. [32]

    [32] Before me, the learned Deputy Public Prosecutor Ms Kristy Tan (“DPP Tan”), who appeared on behalf of the Prosecution, first submitted that the analytical approach undertaken by the DJ was erroneous, in that the DJ seemed to consider that rehabilitation and deterrence were considerations that were equally applicable. DPP Tan submitted that the appropriate starting point in this case was to recognise that deterrence was the dominant sentencing consideration for an adult offender, which the Respondent was, and that rehabilitation would only eclipse the need for deterrence if he was able to demonstrate exceptional circumstances or an extremely strong propensity for reform.

51. [33]

    [33] In this case, neither exceptional circumstances nor an extremely strong propensity for reform had been demonstrated. While the Respondent demonstrated a measure of self-awareness and a recognition of his problems, the degree of his family support was unexceptional. Most importantly, DPP Tan submitted that nothing in the material before the court evidenced a nexus between the Respondent’s good performance in other areas of his life, such as in his National Service or his education, and his rehabilitative capacity in the context of his urges to engage in these types of offences. In fact, she pointed out that the Respondent had committed the present offences at the same time that he was performing well in school, suggesting that he was able to compartmentalise his deviance and wrongdoing from other well-functioning aspects of his life. DPP Tan was at pains to register the fact that the Prosecution was taking this stance not to fulfil purely retributive or penal ends but because it considered that the emphasis on deterrence in this case was principled and would most likely result in the successful rehabilitation of this offender. DPP Tan submitted that a short custodial sentence of at least three weeks would be appropriate in this case, and could prove to be the critical change agent that would “kick-start” the Respondent’s reformative journey.

52. The Respondent’s submissions

53. [34]

    [34] As was his position before the DJ, Mr Louis submitted that the Respondent did in fact demonstrate an extremely strong propensity for reform, such that probation was the appropriate sentence. In Mr Louis’ submission, the Respondent had shown deep remorse for his actions. He also emphasised that the Respondent had actively sought help by seeking a referral for treatment with a psychiatrist from his university-mandated counsellor, Mr Benjamin Tan (“Mr Tan”). The Respondent was also positively engaged at school, and had not engaged in any criminal behaviour since the offences. He pointed to the fact that the Probation Officer had noted that the Respondent had a sincere desire and willingness to change, and that this was said to underscore his exceptional propensity for reform.

54. The psychiatric report

55. [36]

    [36] During the first consultation on 2 April 2019, the Respondent informed Dr Ko that he was under investigations for the present offences. In his account of the events to Dr Ko, he stated that his apartment was undergoing the Home Improvement Programme at the material time and, as a result, he was “feeling tired”. He was on his way home when he “accidentally touched” the right thigh of the victim. He claimed that as the victim did not show any objection, he did not move his hand away. When she alighted at the station, he alighted too, and followed her up the escalator, and again “accidentally poked her right buttock”. It was then that she reported him to the staff of the station. As had been the case with his Probation Officer, the Respondent also spoke about his frequent use of pornography, which could last for “up to 2 hours every other day”, although it was “about an hour every other day” when he was busy with his work.

56. [37]

    [37] The Respondent admitted that he did not seek the victim’s consent, and that he knew that what he was doing was wrong; he expressed regret for his actions as well as the hope that he would be shown leniency. In Dr Ko’s assessment, the Respondent was able to empathise with the victim, as evidenced in his statement that he would not want to be at the receiving end of what he had done to the victim. Further, the Respondent did not exhibit any signs of a mental disorder, although he showed anxiety over having to deal with the molestation charges. No medication was prescribed for him after the first consultation, and he was advised to continue seeing his counsellor (Mr Tan) for further psychological support. It was therefore evident that the Respondent could not assert that his actions were induced by any sort of medical condition. In fairness, Mr Louis did not attempt to mount any such argument.

57. [38]

    [38] Dr Ko saw the Respondent for two further reviews on 22 May and 2 July 2019. In the course of those sessions, the Respondent again expressed remorse and shame for his behaviour, as well as fear that his future career could be ruined once the case became a matter of public knowledge. He was also afraid of receiving a custodial sentence for the offences, and expressed hope that he would be given a second chance to turn over a new leaf. In Dr Ko’s assessment, his mood was not depressed, and no medical treatment was needed. Even though the Respondent was invited to seek psychiatric treatment subsequently if the need arose, he did not return for further consultations with Dr Ko after 2 July 2019.

58. [39]

    [39] Instead, he voluntarily resumed his counselling with Mr Tan, seeing him on seven occasions between January and October 2019. While the Respondent had demonstrated during these sessions a willingness to focus on specified “treatment issues”, specifically the anxiety brought about by the repercussions of the present proceedings as well as “recidivism avoidance”, no specific treatment programme was followed during these sessions. Instead, they “focused on the topic of anxiety, mainly as triggered by the legal/court process and media scrutiny” surrounding the Respondent’s case. The topic of recidivism avoidance was monitored during each session through an ongoing discussion.

59. The central issue before me

60. [40]

    [40] As I explained to DPP Tan during the course of the hearing before me, I do not think that the DJ misapprehended the applicable principles that guided her decision. As seen at [19]–[25] of her GD, the DJ clearly appreciated that general deterrence was presumptively the dominant sentencing consideration in this case. She also recognised that the imposition of probation for adult offenders was the exception rather than the norm, and that this required the adult offender to demonstrate an extremely strong propensity for reform or other exceptional circumstances. Further, even if the adult offender was found to have such an “extremely strong propensity for reform”, the significance of rehabilitation could be eclipsed by an emphasis on the need for deterrence where, for example, the offence was a serious one, or the harm caused was severe. In my judgment, the DJ correctly articulated the relevant and applicable principles in this case.

61. [41]

    [41] Therefore, the central issue before me is whether she applied them correctly and, more specifically, whether the Respondent, as an adult offender both at the time of the offence and of sentencing, has demonstrated an extremely strong propensity for reform, such that rehabilitation comes to the fore. This is where I part company with the DJ. For the reasons that follow, I find that the Respondent has failed to provide sufficient evidence to support such a finding. Accordingly, deterrence remains the controlling principle that guides sentencing in this context.

62. My decision

63. Deterrence is generally the dominant sentencing consideration for adult offenders who outrage a victim’s modesty

64. [42]

    [42] I begin with the observation I made in Public Prosecutor v Lim Cheng Ji Alvin [2017] 5 SLR 671 (“Alvin Lim”) at [6] and [7], that while the law takes a presumptive view that rehabilitation is the dominant sentencing consideration for offenders aged 21 or under, this is not the case for offenders above the age of majority. Here, “the law rightly takes the view that rehabilitation would typically not be the operative concern … unless the particular offender concerned happens to demonstrate an extremely strong propensity for reform or there exist other exceptional circumstances” [emphasis in original] (A Karthik v Public Prosecutor [2018] 5 SLR 1289 (“Karthik”) at [44]; see also GCO v Public Prosecutor [2019] 3 SLR 1402 (“GCO”) at [35]).

65. [43]

    [43] In the specific context of cases involving the outrage of modesty by an adult offender, deterrence will be the operative sentencing consideration: see GCO at [41]. This is especially so when the offence is committed on the public transport network (Kunasekaran (supra [12]) at [58]). This is an aggravating factor because it interferes with the routine and safe enjoyment of public services, which is a basic entitlement and expectation of every person in Singapore.

66. [44]

    [44] At the time of the offence and of sentencing, the Respondent was above the age of 21. Furthermore, the offence of outrage of modesty was committed on the public transport network. Hence, unless the Respondent is able to demonstrate an extremely strong propensity for reform or that there are exceptional circumstances, a sentence that places emphasis on deterrence would be appropriate.

67. Extremely strong propensity for reform

68. Focus on offender-specific factors

69. [46]

    [46] I begin by outlining the approach taken in a number of the precedents.

70. [48]

    [48] In Praveen (supra [5]), Chong JA considered the appellant, who was 17 years old when he committed serious drug offences, to have “good potential for reform” (at [44]). This was based on the following factors: (a) the positive prognosis of his academic pursuits; (b) the appellant had taken the initiative to channel his energy into productive endeavours; (c) the appellant’s family had been “remarkably supportive of his rehabilitative efforts”; (d) the appellant was a first-time offender who had not reoffended since his arrest; (e) the appellant was genuinely remorseful and expressed a willingness to abide by the conditions of probation; and (f) the appellant did not present any significant factors that could lead to a risk of reoffending. Again, emphasis was placed on the offender’s circumstances and how these bore on his propensity for reform.

71. [49]

    [49] Similarly, in Karthik (supra [42]), I considered that the appellant had “evinced a capacity for rehabilitation that was demonstrably high” because he had (a) strong support from his family members; (b) consistently engaged in meaningful employment and had remained crime free in the intervening period of more than five years since he committed the offences in 2012; (c) expressed genuine remorse for his actions, as reflected in his acknowledgment of the seriousness of his offences and his decision to come clean on all that he had done, when he was eventually arrested; and (d) made a conscious effort to spend more time with his family and to dissociate himself from negative influences, such that his risk of offending was assessed to be “very low” (at [73]).

72. [50]

    [50] From these cases, it can be seen that the assessment of an offender’s rehabilitative capacity is necessarily a multi-factorial one, with a particular focus on offender-specific, rather than offence-specific, factors. This is consistent with the observations in Public Prosecutor v Mohammad Al-Ansari bin Basri [2008] 1 SLR(R) 449 at [29]:

73. [51]

    [51] This focus on the offender-specific traits is also in line with the approach undertaken in other contexts: rehabilitation is the key sentencing consideration for a young offender (Public Prosecutor v Mok Ping Wuen Maurice [1998] 3 SLR(R) 439), as well as for an offender who was belabouring under a serious psychiatric condition at the time of the offence (Ng So Kuen Connie v Public Prosecutor [2003] 3 SLR(R) 178 at [58]; Goh Lee Yin (supra [45]) at [29]). In each of these settings, it is the unique features of the offender that justify the adoption of a particular sentencing approach.

74. [53]

    [53] In finding that probation was inappropriate, See Kee Oon J considered that the appellant “might … be said to” have an “extremely strong propensity for reform” (GCO at [42]). This was because he had complied with his counselling and psychiatric treatment schedules, had strong family support from his family and his girlfriend, and was untraced prior to the commission of the offence. Nonetheless, See J considered that the appellant’s potential for rehabilitation was eclipsed by deterrence given the serious nature of the offence. This was compounded by the specific aggravating factors such as the exploitation of the vulnerability of a sleeping victim (GCO at [41]).

75. Three-limbed assessment of an offender’s propensity for reform

76. [54]

    [54] I return to the assessment of the offender’s propensity for reform. In my judgment, “the relevant question is whether [the offender] has demonstrated a positive desire to change and whether there [are] conditions in his life that [are] conducive to helping him turn over a new leaf” [emphasis added] (Praveen (supra [5]) at [45]). Unpacking that, it becomes evident that there are two distinct elements: the offender’s own desire for reform, and the supporting framework to help him achieve this. But, in the overall assessment of an offender’s reformative capacity, these two factors must be weighed against the presence of risk factors, such as an association with negative peers, or the presence of bad habits like an offender’s drug use (Leon Russel Francis (supra [47]) at [15]; Praveen at [57]).

77. (a) First, the court should consider whether the offender has demonstrated a positive desire to change since the commission of the offence(s) (“the first limb”).

78. (b) Second, the court should consider whether there are conditions in the offender’s life that are conducive to helping him turn over a new leaf (“the second limb”).

79. (c) If, after considering the first two limbs, the court comes to a provisional view that the offender has demonstrated an extremely strong propensity for reform, the court should then consider, in light of the risk factors presented, whether there are reasons to revisit the finding of such a high capacity for reform (“the third limb”).

80. [56]

    [56] Under the first limb, the court examines the offender’s own resolve to change, as gleaned from evidence of his remorse and the trajectory of his rehabilitative progress between the time of offending and sentencing. The following are some non-exhaustive factors indicating a positive desire to change:

81. (a) Evidence of genuine remorse: As DPP Tan accepted, remorse is the beginning of reform. For real change to occur, the offender must first develop self-awareness and recognise the wrongfulness of his actions. This then manifests in genuine contrition. This point has been expressed and recognised in the case law in various ways, which highlights the different factual circumstances in which remorse may be shown. This is seen, for example, in the following:

82. (i) A plea of guilt, especially if entered at the earliest available opportunity (Praveen at [62]): As observed in Ng Kean Meng Terence v Public Prosecutor [2017] 2 SLR 449 (“Terence Ng”), a plea of guilt can be a “subjective expression of genuine remorse and contrition” (Terence Ng at [66]). Further, in the context of sexual crimes, a plea of guilt helps ensure that the trauma suffered by the victims need not be amplified by having the victim recount the incident in court (Terence Ng at [69]). In so far as the plea of guilt evinces the offender’s efforts to own up to his mistakes and to minimise further harm to the victim, this can indeed evidence genuine remorse.

83. (ii) Acknowledgment of the seriousness of the offences and its implications: In Karthik (supra [42]), this was reflected in the offender’s decision to come clean and confess to all that he had done upon his eventual arrest (at [73(c)]). Similarly, in Public Prosecutor v Justin Heng Zheng Hao [2012] SGDC 219 (“Justin Heng”), it was considered relevant that the offender had co-operated fully with the police and admitted his guilt from the outset (at [28]).

84. (iii) Full and frank disclosure of criminal activities beyond the offences for which the offender is presently charged:

85. (A) In Praveen, it was observed that “the full and frank disclosure of criminal activities beyond the offences for which the offender is presently charged clearly goes towards showing the offender’s repentance” [emphasis in original] (Praveen at [62]).

86. (B) In Justin Heng, it was observed that the offender’s “sincere remorse was also evident in his candour during investigations and the pre-sentence interviews, when he had not sought to hide the fact of his previous involvement since December 2010 in trafficking cannabis to his friends” (Justin Heng at [28]).

87. (C) In Public Prosecutor v Wong Jia Yi [2003] SGDC 53 (“Wong Jia Yi”), the offender was 17 years old when she was arrested for selling ketamine, a Class B drug, to undercover Central Narcotics Bureau officers. She was found to have displayed “sincere remorse”, which “was evident in her candour during the pre-sentence interviews, when she had not sought to hide the fact of her previous involvement in selling ketamine to other buyers” (Wong Jia Yi at [36]).

88. (b) Taking active steps post-offence to leave errant ways behind: Contrition, in and of itself, is insufficient to signify real change. Instead, this is reflected in the taking of active steps to address issues that pre-existed the offence. It is these active steps that demonstrate that the offender is willing to take charge of his own reform:

89. (i) In Praveen, the offender was found to have “good potential for reform”. Among the factors considered in coming to this conclusion was the “positive prognosis of his academic pursuits”. In this respect, the offender’s course chair had written that he had a “good change of attitude” [emphasis added], as seen in his completing a higher proportion of his assignments and improving his attendance after the offence. This, it was said, demonstrated a “sufficient level of willingness to change” (Praveen at [44]). He also channeled his energy into productive endeavours, such as volunteering to teach guitar lessons to younger children at the Singapore Indian Development Association (“SINDA”) youth programme (Praveen at [46]).

90. (ii) In Wong Jia Yi, the offender “made concerted efforts to reform herself” (at [35]). After her arrest for drug-trafficking, she stopped associating with her negative peers, ceased her late night activities, took the initiative to seek counselling (which she was noted to respond well to), and voluntarily admitted herself to a Home to undergo an intensive residential rehabilitation and recovery programme (Wong Jia Yi at [17]–[18]).

91. (iii) In Karthik, the offender was found to evince a “capacity for rehabilitation that was demonstrably high” as, among other things, he had “made a conscious effort to spend more time with his family and to dissociate himself from the negative influences that he had previously exposed himself to”. He had also stopped consuming alcohol altogether (Karthik at [73(d)]).

92. (c) Compliance with and amenability to rehabilitative measure(s): The offender’s compliance with and amenability to rehabilitative measures, such as the conditions of probation that may be imposed by the court, counselling programmes or urine tests, may also evidence his desire for and commitment to reform (GCO at [42]; Praveen at [55]).

93. (d) Offender has not re-offended since his offence: That an offender has not re-offended since his arrest may also point towards his desire to change. However, the significance of this factor would depend on the length of the period between the time of the offence, and when the offender is eventually sentenced. For example, in Karthik, this factor was significant because the offender had committed the offences in June 2012, but was sentenced more than five years later, on 20 November 2017. In the extensive intervening period, he had consistently been engaged in meaningful employment, received glowing reviews while in National Service, and remained crime-free. This was thought, in the round, to demonstrate his “robust commitment towards leaving his errant ways behind” (Karthik at [73(b)]).

94. (e) The index offence(s) were “out of character”: The genuineness and potential efficacy of an offender’s desire to change can also be evaluated against his past conduct. In this regard, a factor that is often alluded to is the offender’s lack of antecedents prior to the offence (GCO at [42]; Praveen at [53]; Justin Heng at [27]). In my judgment, the significance of this factor varies from case to case. It ought not to be treated as a factor pointing towards the offender’s propensity for reform as a matter of course. As explained in Wong Jia Yi at [13], an offender’s “hitherto clean record and otherwise unexceptional conduct and temperament” may be relevant in so far as it shows that the offences committed were “out of character”, and were likely an aberration. A similar point was made in Public Prosecutor v Teo Chang Heng [2018] 3 SLR 1163 at [18]. Conversely, if the offender has previously engaged in criminal conduct, even if he has not been charged, the lack of a court antecedent plainly would not suggest that the index offence is a “one-off aberration” (Alvin Lim (supra [42]) at [20]). Similarly, the fact that the offender has generally been shown to be a person of good repute, or has made past contributions to society (such as through volunteer work and charitable contributions), would also be irrelevant in so far as it reflects the “moral worth” of the offender. However, such conduct in the past could be given modest weight if it fairly allows the court to infer that the offender’s actions in committing the offence was “out of character”, and that he is therefore unlikely to re-offend (Ang Peng Tiam v Singapore Medical Council and another matter [2017] 5 SLR 356 at [102]).

95. [57]

    [57] Turning to the second limb, the key inquiry here is whether the offender’s environment presents conditions that are conducive in helping him turn over a new leaf. This may be discerned from the following non-exhaustive factors:

96. (a) Strong familial support: The strength of the offender’s familial support is a useful indicator of the support system available to the offender in his journey towards reform (GCO at [42]; Leon Russel Francis at [15]; Praveen at [48]; Karthik at [73(a)]; Wong Jia Yi at [38]):

97. (i) In Praveen, the offender’s family was found to be “remarkably supportive of his rehabilitative efforts and ha[d] taken initiatives to increase their supervision over him.” The offender and his father had referred themselves for counselling with SINDA, and his parents not only followed up with this by voluntarily attending the counselling sessions at SINDA with the offender, but were also supportive and cooperative in updating the counsellors about the offender’s attitude and behavioural pattern at home (Praveen at [48]).

98. (ii) In Leon Russel Francis, the level of familial support for the offender was thought to be “undoubtedly strong”. Among other things, he shared a close relationship with his parents and his brother. This tended to suggest that the offender would be provided a significant degree of supervision by his family (Leon Russel Francis at [15]).

99. (iii) In Justin Heng, the court considered it relevant that the offender’s parents “had shown that they were ready and able to undertake their responsibilities in guiding him back on the right path. They were conscious of their failings and had taken immediate initiatives to address his needs. He was also amenable to their supervision” (Justin Heng at [30]).

100. (b) Availability of external support system: Apart from familial support, the availability of a positive external support system, whether from the offender’s romantic partner (GCO at [42]), medical professionals, religious community, or the probation office (Justin Heng at [29]), may also be relevant.

101. (c) External sources of motivation for reform: There may also be strong external sources of motivation that bode well for the offender’s reformative journey. For instance, in Abdul Qayyum (supra [3]), the young offender had a young family of four children that was largely intact. I observed that “this provided him with the strongest possible reason to want to reform himself” [emphasis in original], which was supported by the fact that, since the offence, he had secured a more stable job with better compensation, as well as a rental flat to provide a stable home for his young family (Abdul Qayyum at [12]).

102. (d) Availability of positive avenues to channel energy: The availability of positive outlets for an offender to channel his energy towards his reform will also be relevant. Thus, DPP Tan accepted that, “enrolment in school is frequently accepted as a protective factor … because it minimises the opportunities for a young offender to associate with negative peers, and keeps him within a structured environment where he can learn discipline and receive positive guidance from teachers.” That said, it should always be noted that “the quest for academic qualifications is merely one indicator of rehabilitative capacity”, and “scholastic mediocrity or the fact that the offender is no longer in school should not be reasons by themselves to conclude that the offender is incapable of rehabilitation. Other avenues, such as vocational training or employment, would also be pertinent in assessing the offender’s prospect for reform” [emphasis in original] (Praveen at [45]).

103. [59]

     [59] It will readily be seen that the focus of the approach I have just outlined is directed at the offender’s propensity for reform; in other words, the enquiry is an offender-specific one and the key concern is to establish the offender’s rehabilitative capacity and prospects. What follows from this is that reference to an offender’s scholastic excellence would, in and of itself, be irrelevant, unless a link can be drawn between the offender’s scholastic excellence and the offender’s rehabilitative capacity.

104. [60]

     [60] In the final analysis, the assessment of whether the offender has demonstrated an “extremely strong propensity for reform” is a fact-sensitive one, which involves weighing the factors in favour of such reform against the risk factors that might counteract and so compromise the efficacy of the reformative efforts. The framework I have set out above will help sentencing judges organise and evaluate the competing considerations in a systematic way. Before leaving this point, I reiterate the point I have already made at [52] above, which is that it remains necessary and relevant for the court to consider the gravity of the offence as the final step in the analysis. This is to determine whether, despite the offender’s extremely strong propensity for reform, it nonetheless remains appropriate in all the circumstances to retain the emphasis on deterrence.

105. Application of principles to the facts of the case

106. First limb - Positive desire to change

107. [61]

     [61] I turn to apply those principles to the facts of this case. I first consider the Respondent’s desire to change. While the Respondent initially fled from the scene of the offence, he was noted by the investigation officer to be cooperative after his arrest, and he intimated his wish to plead guilty at the earliest opportunity, even before a pre-trial conference was fixed. The reports from his Probation Officer, as well as the psychiatric report, show that he had expressed remorse and regret for his actions, as well as a degree of empathy for the victim. He also hand-wrote a letter of apology to the victim. While the letter was written six months after the offences were committed, and shortly after he had engaged Mr Louis to defend him for the present offences, I accept Mr Louis’s explanation that the delay in reaching out to the victim was caused, at least in part, by the Respondent having been previously informed by the Police that he was not to reach out to the victim. The letter notably provides no excuse for his actions. While I regard this as a positive sign, I must also consider it in light of the fact that the Respondent had written it after he had obtained legal advice.

108. [62]

     [62] I also accept that the Respondent’s admission of his past conduct to the Probation Officer reflects a measure of contrition. As I have explained, a “full and frank disclosure of criminal activities beyond the offences for which the [Respondent] is presently charged … goes towards showing the [Respondent’s] repentance” [emphasis in original] (Praveen (supra [5]) at [62]; see also Justin Heng (supra [56]) at [28] and Wong Jia Yi (supra [56]) at [36]). I also accept Mr Louis’ submission that an offender should not be penalised for such candour, as it would otherwise act as a disincentive to the sort of frankness that is an essential first step towards reform.

109. [63]

     [63] And, in considering the degree and extent of the Respondent’s remorse, I have regard as well to what I have been able to discern from the Respondent’s interaction with Dr Ko, the psychiatrist to whom he had been referred at his request. No information pertaining to his consultations with Dr Ko was available to the learned DJ. Moreover, the only information that was available to her were the reports of Mr Tan which, with respect, said very little of substance at that time, given that the reports focused on the “presenting concerns of the [Respondent]”. In other words, Mr Tan’s reports merely recorded the self-reported or presented concerns of the Respondent. They did not contain an assessment of the Respondent’s rehabilitative progress. Having sought and obtained Dr Ko’s report and the detailed responses to certain questions directed by Mr Louis to Mr Tan, I am better guided in discerning the extent of the Respondent’s desire to change.

110. [64]

     [64] For one thing, it became evident that, at least in the initial stages, the Respondent remained in denial about his culpability in relation to the offence. Significantly, he had told Dr Ko during his first session on 2 April 2019 that his repeated touching of the victim were accidental in nature. This somewhat reduces the weight to be placed on the letter of apology addressed to the victim, which was written on 14 March 2019, after he had obtained legal advice and before his first session with Dr Ko, and in which he had offered no excuse at all for his conduct.

111. [65]

     [65] The Prosecution also submitted that the overall tenor of the psychiatric report indicated that the Respondent had consulted with Dr Ko primarily to address the anxiety that he felt about the present case, rather than to treat an underlying condition that could have led to his offending.

112. [66]

     [66] In response, Mr Louis contended that while the Respondent had disclosed his worries over his criminal proceedings to Dr Ko, such disclosure was “part and parcel of a patient being open with his doctor”, and did not “detract from [the Respondent’s] primary motivation to see a psychiatrist to find out whether he had a psychiatric problem and … that he regretted his conduct and genuinely wanted to seek help to understand and address the root causes that led to his offending” [emphasis added].

113. [67]

     [67] In my judgment, the psychiatric report does not bear out Mr Louis’ submission. In the report, Dr Ko clearly explained that the Respondent did not have a treatable psychiatric disorder and, while he had repeatedly reported his anxiety over the criminal proceedings, such a “psychological reaction was situational, and did not amount to any formal psychiatric disorder.” Dr Ko therefore encouraged the Respondent to continue seeing his counsellor, Mr Tan, for psychological support, and to learn how he might better manage his anxiety. Crucially, however, Dr Ko was of the opinion that no medical treatment was needed, and his report makes no mention of any effort being undertaken to address the root causes of the Respondent’s offending behaviour; indeed, Dr Ko’s report made no mention of what were, in his professional opinion, the root causes of the offences. Accordingly, I am unable to accept Mr Louis’ submission that the sessions with Dr Ko were focused on addressing the root causes of the Respondent’s offending. Rather, as the Prosecution submitted, the sessions were mainly targetted at addressing his anxiety relating to the present proceedings.

114. [68]

     [68] Furthermore, any remorse that the Respondent expressed appeared to come in tandem with his fear for the personal consequences of his actions, rather than due to a recognition of the harm that his actions could cause. As Dr Ko reported:

115. [70]

     [70] I turn to his consumption of pornography, which was in the Probation Officer’s view, a risk factor as it “increased his sexual preoccupation and contributed to his distortions.” In this respect, Mr Louis submitted that the Respondent has demonstrated a “desire to change and seek help”, and that this is evinced by Mr Tan’s report of 17 July 2019, which stated that the Respondent had “stopped consuming pornography”. However, as explained at [63] above, this assertion was self-reported, and Mr Tan had simply recorded that the Respondent “[h]as reported he has stopped consuming pornography”. As Mr Tan explained in his response to queries posed by Mr Louis after the hearing of this appeal, his sessions with the Respondent were focused on the Respondent’s anxiety over the ongoing court proceedings and the negative media attention, although the “[t]opic of recidivism avoidance was monitored [at] each session”. In other words, while concerns of recidivism stemming from, for instance, the Respondent’s use of pornography, were on the agenda at the counselling sessions, such concerns appeared to have featured tangentially to the Respondent’s well-being, which was the focus of Mr Tan’s attention, in his capacity as the Respondent’s counsellor. Viewed in this light, Mr Tan’s report of 17 July 2019 serves simply as evidence of the Respondent’s self-professed cessation of the consumption of pornography.

116. [72]

     [72] In light of the probation report, while I accept that the Respondent has undertaken some efforts since the offences were committed to curb his reliance on pornography, I do not think that there is sufficient evidence to lead one to the conclusion that there has been a complete cessation of pornographic use. At the highest, his reduced use of pornography demonstrates some measure of change. The ultimate enquiry, however, is whether such a desire rises to the level of showing an extremely strong propensity for reform. This, as I have said, is a multi-factorial enquiry, which leads me to the next factor.

117. [73]

     [73] The Respondent has not re-offended since the present offences. However, this is a factor of modest weight given that it has only been about 18 months since the offences were committed (on 12 September 2018), and this is far shorter than was the case in Karthik (supra [42]), where there was an intervening period of more than five years between the offender’s offending conduct and his eventual sentencing. As I have observed, the shorter the period, the less weighty a favour this will be.

118. [74]

     [74] Finally, I do not think the present offences could be said in any way to aberrant. He had a history of considerable pornographic use and several previous instances of similar behaviour that had actually emboldened him. I emphasise that I refer to this not to penalise the Respondent but to capture the reality of the Respondent’s situation. In my view, the present offences were a manifestation of a persistent problem that the Respondent has had for some time and it would be simply inappropriate for me to ignore that fact.

119. [75]

     [75] Seen in the round, the position may be summarised as follows:

120. (a) There is some evidence of remorse and this can fairly be seen as the first step towards reform. He pleaded guilty, acknowledged the gravity of the offence, and did disclose his wider difficulties arising from his preoccupation with pornography. However, he also evidenced some degree of rationalisation in the early stages as seen in his interactions with Dr Ko, when he described the present incidents as having occurred accidentally.

121. (b) I am not satisfied on the evidence that he has ceased or significantly reduced his consumption of pornography even though he seems to recognise that this was at the root of his sexual misconduct. His continued use of pornography is a factor weighing against his desire for and commitment to reform, as his Probation Officer had clearly stated that his “[e]xposure to pornography increased his sexual preoccupation and contributed to his distortions” towards “sexuality and social boundaries”.

122. (c) While he did appear compliant with measures such as attendance before Mr Tan and Dr Ko, the majority of which were sought voluntarily, much of his time with them seemed to me to be for the purpose of addressing his anxiety about the present proceedings. Such situational anxiety, while common, is generally not a relevant sentencing consideration (Idya Nurhazlyn bte Ahmad Khir v Public Prosecutor and another appeal [2014] 1 SLR 756 at [42]), and certainly does not go towards demonstrating a positive desire to change.

123. (d) I accept that the Respondent has not reoffended, but this is of limited weight given the modest duration that has passed since his commission of the offences.

124. (e) This was not an aberrant act or out of character. I return here to an important point made by DPP Tan. While it is true the Respondent has a bright future, with ample reason and opportunities to focus on his academic pursuits, which is a point I will turn to in the next section of my analysis, it is also the case that at the material time, the two sides of his character were co-existing. His preoccupation with pornography which was causing him to step well outside the boundaries of acceptable behaviour were co-existing with his studious, successful and seemingly well-functioning outward persona of a good student.

125. [76]

     [76] Having regard to all these considerations, I cannot say with conviction that the Respondent makes out a very strong case for displacing deterrence as the dominant sentencing consideration.

126. Second limb - Environmental factors

127. [77]

     [77] This leads me to the second limb. As I have just said, the Respondent remains positively engaged in school, and thus has a positive avenue to channel his attention and energy. However, I agree with DPP Tan that this must be viewed in light of his offending behaviour, which he appeared to be able to compartmentalise and keep separate from other pro-social aspects of his life. What this means is that the presence of these positive outlets is not new, and was already present in the Respondent’s life while he was pursuing in parallel a pattern of behaviour involving the frequent consumption of pornography and inappropriate touching of females without their consent. This conduct remained undetected and eventually emboldened him to commit the present set of offences. I note that this point was not made by the Prosecution in the same terms to the DJ.

128. [79]

     [79] Without seeking to discount the well-meaning intentions of his parents, I do not think that they are in a position to play a significant part in addressing the root of his problem, which stems from his pornographic preoccupations and cognitive distortions towards sexuality and social boundaries. In fact, even after their discovery of the present offences and despite their disappointment with the Respondent, it appears that the Respondent continues to watch pornography and it is not clear if they know this or are able to stop him from doing so. This is unsurprising, given that the Respondent’s behaviour in this regard occurs in the most private of circumstances, and parental intervention and supervision is likely not feasible. This would, if anything, be exacerbated by the conservative nature of the household, as a result of which efforts to break down the barriers to communicating about such matters will necessarily be a slow and gradual process.

129. [80]

     [80] Given the deep personal issues that led to the Respondent’s offences, what is vital is an equally strong personal resolve on the Respondent’s part to change himself for the better. If I had been satisfied of that, then the support of his parents in driving such change might have been accorded more weight. But, for the reasons I have already canvassed, I am not satisfied that the Respondent has taken sufficient steps to demonstrate a positive desire and commitment to reform himself. Under such circumstances, it is difficult to see how his familial support, in and of itself, would change the analysis.

130. Risk factors

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