Public Prosecutor v CDL [2022] SGHC 122

Introduction

The accused is [CDL], a 38-year-old male Singaporean. From September 2014 to October 2015, the accused committed several sexual assaults against the victim who is his stepdaughter (“the victim”) in a Housing and Development Board flat (“the flat”). The victim was between nine and 11 years old at the time of the offences.

The accused faces the following charges:

That you, [CDL],

The Prosecution proceeds against the accused on the 1st charge and the 3rd charge (“the Charges”). The accused pleaded guilty to the Charges and 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 offences without qualification. Accordingly, I found the accused guilty and convicted him on the Charges.

The accused admitted to and consented to have the remaining three charges taken into consideration for the purposes of sentencing (“the TIC Charges”).

The facts

After getting married to the victim’s mother, the accused lived in the flat with the victim’s mother, the victim and other family members. The accused took care of the victim and treated her as his own. On weekdays, the accused would return home from work in the afternoon. The victim would enter his room as it was air-conditioned and the pair would watch television together. The accused and the victim would be alone in the room. The accused would cuddle the victim while they were lying on the bed and watching television. At times, the victim would “play around” with the accused and sit on the accused’s lap with her legs straddling him when he was lying on the bed.

On two occasions between September 2014 and October 2015, while the victim was sitting on the accused’s lap, the accused removed the victim’s shorts and pulled down his own pants. The accused proceeded to rub his penis on the victim’s vagina. Both the accused and the victim were not wearing underwear at the material times.

A few months later, the accused began to blindfold the victim by tying the sleeves of his green army t-shirt at the victim’s nose and flipping the bottom of the shirt over her head, blocking her vision. The accused initially put his finger into the victim’s mouth, before progressing to putting his penis into the victim’s mouth when she was blindfolded. The accused did not succeed in putting his penis into the victim’s mouth on his first attempt. The accused would pretend that he was merely putting his finger into the victim’s mouth before placing his penis into her mouth. On one occasion, the victim asked the accused what he was doing and the accused replied that he had put his finger into her mouth.

Facts relating to the Charges

On one occasion between September 2014 and October 2015, the accused blindfolded the victim as described at [7] above while they were alone in his bedroom. The victim lay prone on the bed with her upper body propped up on her elbows. While standing at the edge of the bed in front of the victim, the accused inserted his penis into the victim’s mouth and moved his penis in and out of her mouth. The incident lasted between ten to 15 minutes.

On another occasion between September 2014 and October 2015, the accused penetrated the victim’s mouth with his penis using the same modus operandi. While they were alone in his bedroom, the accused first blindfolded the victim as described at [7] above. The victim lay prone on the bed with her upper body propped up on her elbows. The accused then stood at the edge of the bed in front of the victim and inserted his penis into the victim’s mouth, moving his penis in and out of her mouth. This incident also lasted between ten to 15 minutes.

The victim was between nine and 11 years old when the incidents occurred. She did not consent to the sexual acts.

Discovery of the offences

The victim did not disclose the sexual abuse to anyone as she lacked the courage to do so and was worried that her family would be broken up if she did.

In 2019, while on a trip with her cousins and their family, the victim told her cousins that the accused had sexually abused her. The victim’s cousins advised her to speak to her mother and not to keep silent. On 17 September 2019, the victim reported the sexual abuse to her school counsellor and the matter was escalated to the police the following day on 18 September 2019.

The accused was first arrested on 19 September 2019 and has been in remand since 13 November 2019.

The applicable law

The accused had committed offences under s 376 of the Penal Code (Cap 224, 2008 Rev Ed) (“the Penal Code”). The relevant provisions are as follows:

The applicable sentencing framework for cases of sexual assault by penetration (“SAP”) involving digital penetration was set out by the Court of Appeal in Pram Nair v Public Prosecutor [2017] 2 SLR 1015 (“Pram Nair”) at [158]–[160]. In BPH v Public Prosecutor and another appeal [2019] 2 SLR 764 (“BPH”), the Court of Appeal held at [55] that the Pram Nair framework applied to all forms of non-consensual penetration under s 376 of the Penal Code. The framework involves a two-stage exercise:

(a) First, the court has to ascertain which of the three sentencing bands the accused’s offences fall within, having regard to the offence-specific factors (factors relating to the circumstances of the offence, such as the harm caused to the victim and the manner by which the offence was committed). Once the appropriate sentencing band has been identified, the court derives an indicative starting point by determining precisely where within the range of sentences the present case falls.

(b) Second, the court calibrates the appropriate sentence for the accused by having regard to the offender-specific aggravating and mitigating factors, such as offences taken into consideration for the purposes of sentencing, the accused’s remorse or his relevant antecedents, if any.

The sentencing bands under the Pram Nair framework are summarised as follows:

The Court of Appeal in Pram Nair further explained at [160] that SAP offences disclosing any of the statutory aggravating factors in s 376(4) of the Penal Code should fall within Band 2.

Submissions on sentence

The Prosecution’s sentencing position is a total of 20 years’ imprisonment and 24 strokes of the cane. The Defence asks for a global sentence of not more than 16 years’ imprisonment and 24 strokes of the cane.

Both the Prosecution and the Defence agree that the offences warrant a sentence that serves the sentencing objectives of deterrence and retribution. Both the Prosecution and the Defence also agree that the offences fall within the midpoint of Band 2 of the Pram Nair sentencing framework, with an indicative starting point of 12 to 13 years’ imprisonment for each of the two Charges. The sole questions are:

(a) the sentencing discount that should be accorded to the accused on account of the mitigating factors; and

(b) the global sentence to be imposed bearing in mind the totality principle.

My decision

Sentencing principles

The accused’s actions in subjecting his stepdaughter to several instances of sexual assaults is reprehensible. This case clearly warrants the imposition of sentences that incorporate the sentencing principles of deterrence and retribution. It is apparent from the Prosecution’s and the Defence’s submissions that both parties agree with the application of these operative sentencing principles in this case. However, they differ on the application of these principles when it comes to the proposed appropriate deterrent sentences on the accused.

First, on the principle of general deterrence, the Court of Appeal in Lim Hock Hin Kelvin v Public Prosecutor [1998] 1 SLR(R) 37 (“Kelvin Lim”) stated at [25(a)] as follows:

This is consistent with the findings of V K Rajah J (as he then was) in Public Prosecutor v NF [2006] 4 SLR(R) 849 at [40] and [42]:

The notorious difficulty of prosecuting intrafamilial sexual abuse is clearly borne out in the prolonged length of time it took for the accused’s sexual assaults to be uncovered. The victim only disclosed the sexual abuse to her cousins close to four years after the last incident of sexual abuse. The accused’s sexual abuse of the victim is a grave abuse of the trust and authority reposed in him.

Second, according to the sentencing principle of retribution, the sentences imposed must reflect and befit the seriousness of the crime. Where the victims are young and vulnerable, “the offence becomes much more serious and the punishment meted on such offenders has to reflect the gravity of the offence” (Kelvin Lim at [20]). The sentence imposed must reflect the public opprobrium towards cases of sexual assault committed against young and vulnerable individuals. This is consistent with the Court of Appeal’s pronouncement in Public Prosecutor v Kwong Kok Hing [2008] 2 SLR(R) 684 at [17]:

Offence-specific factors

I turn to consider the indicative starting point of the individual sentences based on where the offences fall within the Pram Nair framework. I agree with the Prosecution and the Defence that the offences fall within the midpoint of Band 2 of the Pram Nair framework, due to the following factors.

Statutory aggravating factor

The accused sexually assaulted the victim on several occasions when she was below 14 years of age. Thus, this case of aggravated SAP falls within Band 2 of the Pram Nair framework by default.

Abuse of position and breach of trust

It is clear that the accused abused his position of responsibility and the trust reposed in him as the victim’s stepfather. The immense trust placed in the accused is clear from how he was left alone with the victim in his bedroom. That the accused sexually assaulted the victim when he was left alone with her behind closed doors points to the ultimate betrayal of trust. This is indubitably an aggravating factor.

Premeditation and deception

On the facts, it is clear when the accused blindfolded the victim that he premeditated his assaults. I agree with the Prosecution that premeditation and deception are present when the accused blindfolded the victim as it “was an attempt to trick the victim into thinking that he was only using his finger and not his penis on future occasions”. As the Prosecution points out, the accused also lied to the victim that he had only put his finger into her mouth when she asked him what he was doing.

Risk of sexually transmitted diseases

In BPH, the Court of Appeal held at [61] that the risk of sexually transmitted diseases is a factor to be considered when assessing the seriousness of a particular permutation of the offence. I agree with the Prosecution that the accused’s act of inserting his penis into the victim’s mouth carried the risk of sexually transmitted diseases and is accordingly an aggravating factor. The fact that the accused did not ejaculate into the victim’s mouth or on her person does not diminish the aggravating effect of this factor.

Prolonged nature of the assaults

I agree with the Prosecution that the sexual assaults, which lasted ten to 15 minutes each, were of a prolonged nature. That the sexual exploitation continued for a sustained period is an aggravating factor (see GBR v Public Prosecutor and another appeal [2018] 3 SLR 1048 (“GBR”) at [28]). While this observation in GBR was made in the context of outrage of modesty offences, I find that it is similarly applicable to SAP offences and distinguishes more prolonged and graver instances of SAP like in the present case from those where the penetrative act occurred for only a few seconds (see e.g. Public Prosecutor v CCG [2021] SGHC 207 at [17]).

No violence and intimidation used

The accused was not violent when he committed the sexual acts on the victim and she did not suffer any physical injury. The accused also did not intimidate or coerce the victim into allowing him to perform the sexual acts.

Conclusion on offence-specific factors

Having regard to all of the above, I agree with the Prosecution and the Defence that this case falls within the midpoint of Band 2 of the Pram Nair framework with an indicative starting sentence of 12.5 years’ imprisonment and the statutory minimum of 12 strokes of the cane for each of the Charges.

Offender-specific factors

The accused has admitted and consented to the TIC Charges being taken into consideration for the purposes of sentencing. It is trite that the presence of TIC charges may result in an uplift in sentence, especially where the TIC charges and the charges proceeded with are similar in nature (see Ng Kean Meng Terence v Public Prosecutor [2017] 2 SLR 449 (“Terence Ng”) at [64(a)]; Public Prosecutor v UI [2008] 4 SLR(R) 500 (“UI”) at [38]).

Balancing the aggravating effect of the TIC Charges against the mitigating factors identified at [35]–[39] below, I find that the individual sentences for the Charges should be calibrated downward from the indicative starting point of 12.5 years’ imprisonment and 12 strokes of the cane to 9 years’ imprisonment and 12 strokes of the cane.

Plea of guilt

In Terence Ng, the Court of Appeal held at [71] that an offender’s plea of guilt is an offender-specific mitigating factor. The mitigatory value of a plea of guilt is assessed in terms of (a) the extent to which it was a signal of genuine remorse and contrition; (b) the savings in judicial resources it brought about; and (c) the extent to which it spared the victim the ordeal of testifying (Terence Ng at [66]). The sentencing discount to be awarded for a plea of guilt is not fixed in advance but is a fact-sensitive matter (Terence Ng at [70]–[71]).

The accused in this case pleaded guilty at the earliest opportunity and spared the victim the ordeal of reliving her trauma in court. I agree with both the Prosecution and the Defence that the accused’s plea of guilt is a mitigating factor that warrants a reduction in sentence. It is evident that the accused is sincerely remorseful and contrite for the sexual acts on the victim.

Voluntary cessation of abuse

The Prosecution accepts that the accused voluntarily stopped his sexual abuse against the victim after slightly more than a year. The accused acknowledged what he did to the victim was wrong and he made concerted efforts to stop the sexual assault on the victim. This is a strong mitigating factor.

The Defence submits that after the last incident of sexual assault, the accused was repulsed by his own behaviour and made a commitment to put an end to his sexual degradation of the victim. The accused would ensure that he and the victim were always in the living room or in the company of other persons, which ultimately put an end to his repugnant thoughts. Thereafter, for the next few years after October 2015, there were no longer any other sexual incidents notwithstanding that there were occasions when the accused was alone with the victim.

Having regard to both the Prosecution’s and the Defence’s submissions on the accused’s voluntary cessation of his sexual abuse, I agree that this is a cogent mitigating factor as it is indicative of the accused’s remorse and awareness of his wrongdoing.

Lack of similar antecedents

The accused has only one previous conviction for theft in 2010 where a S$800 fine was imposed. However, as the Court of Appeal stated in BPH at [85], the absence of antecedents is a neutral factor in the sentencing process.

Forgiveness by the victim

The fact that the victim has forgiven the accused is irrelevant and is not a mitigating factor. In Terence Ng, the Court of Appeal made clear at [45(a)] that forgiveness by the victim is irrelevant to the assessment of the seriousness of the offence, as forgiveness “is a private matter between the victim and the offender, and should not affect the sentence imposed on the offender by the courts, which reflects the public interest in criminal punishment” (citing UI at [56] and [67]). I, therefore, find that the fact that the victim has forgiven the accused is not a mitigating factor.

Conclusion on offender-specific factors

It is clear from the accused’s conduct that he is genuinely remorseful and contrite for his disgraceful actions. The accused also did not use force to hurt the victim when he sexually assaulted the victim. He also did not intimidate the victim. Further, the accused’s psychiatric report does not indicate that he is a paedophile. Balancing the aggravating effect of the TIC Charges against the mitigating factors identified above, I find that the individual sentences imposed for the Charges should be calibrated downward from the indicative starting point of 12.5 years’ imprisonment and 12 strokes of the cane to nine years’ imprisonment and 12 strokes of the cane for each of the two Charges.

The global sentence

The one-transaction principle

The Prosecution and the Defence agree that the sentences for the Charges should run consecutively. Given that the two instances of SAP were committed on different days, I find that they represent two separate and distinct incursions into the victim’s bodily integrity. I am of the view that to order the two sentences for the 1st charge and the 3rd charge concurrently would not fulfil the twin objectives of deterrence and retribution and would give the accused an undeserved discount for multiple assaults. I, therefore, agree that the sentences for the Charges should run consecutively. This gives rise to an aggregate sentence of 18 years’ imprisonment and 24 strokes of the cane.

The totality principle

The first limb of the totality principle requires the court to consider whether the aggregate sentence is substantially above the normal level of sentences for the most serious of the individual offences committed (see Mohamed Shouffee bin Adam v Public Prosecutor [2014] 2 SLR 998 (“Shouffee”) at [54]). Under the second limb of the totality principle, the aggregate sentence may be moderated if it is crushing and not in keeping with the offender’s past record and his future prospects (Shouffee at [57]).

I find that the aggregate sentence of 18 years’ imprisonment and 24 strokes of the cane is not crushing as these are grave offences and having regard to the totality of the accused’s criminal behaviour, including his lack of similar antecedents, his early plea of guilt, his sincere remorse and the TIC Charges. I, therefore, find that the global sentence of 18 years’ imprisonment and 12 strokes of the cane is consistent with the totality principle while also adequately addressing the sentencing considerations of deterrence and retribution. It is also consistent with sentencing precedents.

In BWM v Public Prosecutor [2021] SGCA 83 (“BWM”), the appellant had pleaded guilty to two charges of SAP under s 376(1)(a) punishable under s 376(4)(b) of the Penal Code for penetrating the male victim’s anus with his penis. The victim was between ten and 14 years old at the time of the offences. The appellant was in a romantic relationship with the victim’s elder sister at the time of both offences and they were married at the time of the second SAP offence. Three other charges, two concerning penile-anal penetration and one concerning outrage of modesty, were taken into consideration for sentencing. The Court of Appeal held at [24] that the global sentence of 20 years’ imprisonment and 24 strokes of the cane was “clearly appropriate in principle and in quantum”, given the appellant’s abuse of his position of trust and authority, the victim’s young age and the appellant’s premeditation.

The case of BWM shares many similarities with the present case, save for (a) the length of time over which the offences occurred (four years compared with not more than one year in the present case); (b) the composition of the TIC Charges; and (c) the mitigatory value of the accused’s plea of guilt. In BWM two other penetrative offences and one other outrage of modesty offence were taken into consideration by the court for the purposes of sentencing. In the present case the charges that are taken into consideration for the purpose of sentencing are one other attempted penetration offence and two outrage of modesty offences. The appellant in BWM had also attempted to evade the police after the police report was made against him by going into hiding, and the police only managed to arrest him about four years later, by which time he had remarried and had a child with his second wife. The accused in this case was very co-operative with the police and he has pleaded guilty at the earliest opportunity. Thus, the accused has spared the victim from recalling the trauma of the sexual assaults. Comparing the facts and circumstances of the present case, the present case warrants a lower global sentence than that in BWM.

In Public Prosecutor v BLV [2017] SGHC 154, the offender committed a litany of sexual offences against his biological daughter over a period of three years when she was between 11 and 13 years old. Violence was also used in the commission of the sexual offences. The offender had claimed trial to all ten charges and was sentenced to ten years’ imprisonment and 12 strokes of the cane for the SAP offence after the court considered the totality principle. The offender would otherwise have been sentenced to 15 years’ imprisonment and 12 strokes of the cane for the SAP offence. The Court of Appeal in BLV v Public Prosecutor [2019] 2 SLR 726 increased the sentence for the SAP offence to 12 years’ imprisonment and 12 strokes of the cane, giving rise to an aggregate sentence of 28 years’ imprisonment and 24 strokes of the cane.

Having regard to all of the above, I find that the appropriate and fair punishment in this case is an aggregate sentence of 18 years’ imprisonment and 24 strokes of the cane. The statutory maximum of 24 strokes of the cane sends a strong signal of deterrence and retribution. This sentence thus strikes the appropriate balance between reflecting the moral and criminal reprehensibility of the accused’s actions, while also avoiding a crushing effect on the accused.

Summary of findings on sentence

In summary, my findings on sentence are as follows:

(a) Deterrence and retribution are the governing sentencing principles given the victim’s young age and the relationship between the accused and the victim.

(b) Given the presence of several aggravating factors such as the accused’s abuse of trust and premeditation, the present case falls within the midpoint of Band 2 of the Pram Nair framework. This gives rise to an indicative starting point of 12.5 years’ imprisonment and 12 strokes of the cane for each of the Charges.

(c) There were two cogent mitigating factors that warranted a downward calibration of the individual sentences to nine years’ imprisonment and 12 strokes of the cane for each of the Charges.

(d) Having regard to the one-transaction principle and the totality principle, a global sentence of 18 years’ imprisonment and 24 strokes of the cane is appropriate and reflective of the accused’s crimes.

Conclusion

For the above reasons, I sentence the accused to nine years’ imprisonment and 12 strokes of the cane on the 1st charge and the 3rd charge respectively. The sentences of imprisonment are to run consecutively. The aggregate punishment is 18 years’ imprisonment and 24 strokes of the cane. I further order that his sentences of imprisonment be backdated to the date of remand on 13 November 2019.