Public Prosecutor v BZT [2022] SGHC 148

Introduction

The facts of the case and the reasons for my decision to convict and find the accused guilty are set out in Public Prosecutor v BZT [2022] SGHC 91 (“the Main Judgment”). This judgment focuses on the appropriate sentences on the proceeded charges against the accused.

Background

The accused is [BZT], a 48-year-old male Singaporean. He claimed trial on eight charges of sexual assaults he committed against two very young victims when he was the boyfriend of the victims’ mother (“PW1”). These sexual offences occurred when the first victim (“V1”), a female, was between 7 and 13 years old and the second victim (“V2”), a male, was between 11 and 13 years old (collectively, the “Victims”). On 25 April 2022, I convicted the accused on the following eight charges:

That you, [BZT],

The accused faces four additional charges which were stood down during the trial. After his conviction on 25 April 2022, the accused consented to have these four charges taken into consideration by the court for the purpose of sentencing (“the TIC Charges”). The TIC Charges are as follows:

That you, [BZT],

The applicable law

Outrage of modesty

Section 354 of the Penal Code (Cap 224, 1985 Rev Ed) (“the Penal Code”) reads as follows:

The prescribed punishment is the same as that under s 354(1) of the Penal Code (Cap 224, 2008 Rev Ed). Accordingly, the sentencing framework for offences under s 354(1) of the Penal Code (Cap 224, 2008 Rev Ed) which was set out in Kunasekaran s/o Kaimuthu Somasundara v Public Prosecutor [2018] 4 SLR 580 (“Kunasekaran”) at [45]–[49] is instructive:

Attempted rape

Section 376(2) of the Penal Code reads as follows:

Section 511 of the Penal Code reads as follows:

Notwithstanding that the third charge is an attempted rape offence, the mandatory minimum of eight years’ imprisonment and 12 strokes of the cane applies. The prescribed punishment for this offence is, therefore, imprisonment for a term of between eight and ten years with caning of not less than 12 strokes (see Public Prosecutor v Shamsul bin Sa’at [2010] 3 SLR 900 at [1(a)]).

The prescribed punishment for rape under s 375(3) of the Penal Code (Cap 224, 2008 Rev Ed) is the same as that under s 376(2) of the Penal Code at [6] above. Thus, the sentencing framework for rape offences laid down by the Court of Appeal in Ng Kean Meng Terence v Public Prosecutor [2017] 2 SLR 449 (“Terence Ng”) at [39]–[74] is instructive. Briefly, the framework requires the sentencing court to first consider the offence-specific aggravating factors, including the accused’s abuse of position of authority and breach of trust, premeditation and vulnerability of the victim, in order to identify the appropriate sentencing band the offence falls within:

(a) Band 1 (ten to 13 years’ imprisonment and six strokes of the cane): These are for cases of rape which are at the lower end of the spectrum of seriousness and feature no offence-specific aggravating factors or where the factor(s) are only present to a very limited extent and therefore have a limited impact on sentence.

(b) Band 2 (13 to 17 years’ imprisonment and 12 strokes of the cane): These are for cases of rape which are properly described as being of a higher level of seriousness. Such cases would usually contain two or more offence-specific aggravating factors. A paradigmatic example of a Band 2 case would be the rape of a particularly vulnerable victim coupled with evidence of an abuse of position of authority (such as where the rape took place in a familial context).

(c) Band 3 (17 to 20 years’ imprisonment and 18 strokes of the cane): These are for cases which, by reason of the number and intensity of the aggravating factors, present themselves as extremely serious cases of rape. They often feature victims with particularly high degrees of vulnerability and/or serious levels of violence attended with perversities.

After identifying the relevant sentencing band, the court should then have regard to the offender-specific aggravating and mitigating factors, such as offences taken into consideration for the purposes of sentencing, the offender’s remorse or his relevant antecedents (Terence Ng at [64]).

The Court of Appeal in Terence Ng explained further at [53] that offences of rape disclosing any of the statutory aggravating factors in s 375(3) of the Penal Code will almost invariably fall within Band 2.

In Public Prosecutor v Ridhaudin Ridhwan bin Bakri and others [2020] 4 SLR 790, the High Court held at [102] that the sentencing framework for rape in Terence Ng could be adapted to attempted rape by halving the sentences in each band.

Unnatural carnal intercourse

Section 377 of the Penal Code reads as follows:

The parties’ submissions

The Prosecution’s submissions

The Prosecution proposes the following sentences for each of the eight proceeded charges as well as the global sentences:

Sentencing principles

The Prosecution submits that deterrence and retribution are the main applicable sentencing principles. The Prosecution argues that the accused’s actions were “the ultimate betrayal of trust and authority” as the accused was a father figure to the Victims. Specific deterrence is also warranted given the premeditation present in the offences.

Aggravating factors

The Prosecution submits that the following offence-specific aggravating factors are engaged on the present facts:

(a) There was a serious abuse of trust and position of authority by a “father” against his children.

(b) There was a significant degree of premeditation in the commission of the offences.

(c) The Victims were particularly young and especially vulnerable at the time of the offences, with their vulnerability being due to their age and unstable circumstances.

The Prosecution submits that the following offender-specific aggravating factors are engaged on the present facts:

(a) The TIC Charges ought to result in an enhancement of the sentence as three out of four of the TIC Charges are sexual in nature.

(b) The accused was diagnosed to be a pedophile by Dr Ong Jun Yan (“Dr Ong”), a Senior Resident at the Department of Forensic Psychiatry of the Institute of Mental Health (“IMH”). The accused was able to appreciate the consequences of his actions and is fully culpable for them.

Mitigating factors

The Prosecution further submits that there are no mitigating factors in the present case. First, the accused claimed trial and did not spare the Victims the trauma of testifying in court. Second, the absence of similar sexual offences in the accused’s criminal history is a neutral factor and no weight should be given to this. In any case, the accused “had been flouting the law with impunity for years” and “can only be described to be a seasoned criminal skilled at avoiding detection”.

Proposed sentences for charges involving V1

(1) Outrage of modesty (the first, second, fifth and sixth charges)

On the first charge and the second charge, the Prosecution argues that the degree of sexual exploitation involved is the highest. These charges should, therefore, fall within the high end of Band 3 of the Kunasekaran framework with an indicative sentence in the range of one and a half to two years’ imprisonment and six strokes of the cane.

On the fifth charge, the Prosecution submits that the degree of sexual exploitation is moderate as it involved contact of the accused’s penis with V1’s vagina over clothes. The fifth charge, therefore, falls within the middle of Band 3 with an indicative sentence in the range of one and a half to two years’ imprisonment and three strokes of the cane.

On the sixth charge, the degree of sexual exploitation is lower as it involved contact of V1’s private part with a foreign object, ie, a cotton bud. The sixth charge falls within the lower end of Band 3 with an indicative sentence in the range of 15 to 18 months’ imprisonment and one stroke of the cane.

(2) Attempted rape (the third charge)

The Prosecution argues that an additional aggravating factor is present for the third charge as the accused had tried to rape V1 while she was asleep and defenceless. Accordingly, an uplift from the mandatory minimum of eight years’ imprisonment and 12 strokes of the cane is appropriate, giving rise to a sentence in the range of eight to nine and a half years’ imprisonment and the mandatory 12 strokes of the cane.

Proposed sentences for charges involving V2

(1) Unnatural carnal intercourse (the ninth and tenth charges)

The ninth charge is a composite charge involving penile-oral and penile-anal penetration. The Prosecution submits for a sentence in the range of six and a half to eight and a half years’ imprisonment, on account of the following additional aggravating factors:

(a) V2 was exposed to the risk of sexually transmitted diseases when the accused penetrated V2’s mouth with his penis and caused V2’s penis to penetrate his anus.

(b) The accused sexually assaulted V2 when he thought that V2 was asleep and defenceless.

For the tenth charge involving attempted anal penetration, the Prosecution submits for five years’ imprisonment.

(2) Attempted outrage of modesty (the eleventh charge)

The Prosecution argues that had the eleventh charge been a complete offence, it would have fallen within the higher end of Band 3 due to the high degree of sexual exploitation arising from the skin-to-skin penetration of V2’s anus. Falling within the higher end of Band 3 would have given rise to an indicative starting sentence of one and a half to two years’ imprisonment and six strokes of the cane. Since the eleventh charge is an attempted offence and the maximum imprisonment term is capped at one year, the Prosecution submits for a sentence in the range of half a year to one year’s imprisonment.

The aggregate sentence

The Prosecution submits that the sentences for the first, third and ninth charges ought to run consecutively as set out at [14] above. The offences in these charges occurred on different occasions and the one-transaction rule is, therefore, not violated by having these charges run consecutively. Further, the offence in the ninth charge was committed in respect of a different victim, ie, V2, when compared against the first charge and the third charge which were committed against V1. Thus, the Prosecution contends that the aggregate punishment for the accused should be 16 to 20 years’ imprisonment and 24 strokes of the cane. This global sentence cannot be said to be crushing or not in keeping with the accused’s past record and future prospects. The Prosecution does not seek an additional term of imprisonment in lieu of caning under s 332(5) of the Criminal Procedure Code (Cap 68, 2012 Rev Ed) (“CPC”) even if the accused is found medically unfit for caning.

The Defence’s submissions

At the outset, the Defence suggests that the sentence in respect of the third charge of attempted sexual assault involving penetration under s 376(2) read with s 511 of the Penal Code ought to be not more than four and a half years’ imprisonment. I have brought to the Defence’s attention to the statutorily prescribed sentence for the third charge, which is a mandatory minimum of eight years’ imprisonment and 12 strokes of the cane. The Defence accepts that the statutorily prescribed punishment applies. Therefore, the Defence proposes eight years’ imprisonment and 12 strokes of the cane as the appropriate sentence in respect of the third charge.

Bearing the above in mind, the Defence proposes the following sentences for each of the eight proceeded charges and the global sentences:

The Defence accepts that the sentences for the sexual offences should be on the high end as the Victims were children at the material time. However, the Defence argues that this aggravating factor should be balanced against the following mitigating factors:

(a) Save for the ninth charge where the accused was penetrated by V2, there was no actual penetration of the Victims.

(b) The accused did not use violence or threats to coerce the Victims into performing the sexual acts.

(c) The accused had not committed any other offences of the same nature after he left the Victims and PW1. There is no propensity to reoffend and, therefore, deterrence is not a material factor.

The Defence disagrees that the accused was in a position of trust and authority vis-à-vis the Victims as he “was not in loco parentis” to the Victims despite being in a relationship with PW1.

The Defence reserves its submissions on imprisonment in lieu of caning for after the accused’s medical report is issued.

My decision

Sentencing principles

The accused’s sexual abuse of the young Victims over more than five years is morally reprehensible. This clearly warrants the imposition of sentences that incorporate the sentencing principles of deterrence and retribution.

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 the following at [25(a)]:

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 (“NF”) at [40] and [42]:

It is well-known that it is difficult to prosecute sexual abuse in the family and often the offence is not exposed till after a long period. In this case the dark secret of the accused’s sexual assault remained dormant for more than 10 years. Even when the offences came to light on 12 December 2016, the Victims remained hesitant and reluctant to report the accused to the police. If it were not for PW1’s persistence, it is likely that the accused’s offences would never have been reported. I agree with the Prosecution that the accused’s abuse of trust in this particular case is especially grave. The accused capitalised on PW1’s and the Victims’ trust in him as the Victims’ father figure to sexually exploit the Victims while they were left in his sole care. Therefore, general deterrence must feature prominently in the imposed sentences to deter would-be offenders from committing sexual acts against vulnerable victims in the seclusion of the home, as the accused had done in this case.

Second, I agree with the Prosecution that the accused’s premeditation warrants a sentence that incorporates the principle of specific deterrence. This serves as a warning to the accused that his repeated sexual violation of the Victims will be met with stiff penal consequences. In Public Prosecutor v Law Aik Meng [2007] 2 SLR(R) 814 (“Law Aik Meng”), the High Court stated as follows:

Third, according to the sentencing principle of retribution, the sentence 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 condemnation for 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]:

Since the attempted rape charge (the third charge) and the outrage of modesty charges (the first, second, fifth, sixth and eleventh charges) involve the consideration of similar sentencing frameworks, I shall consider the offence-specific and offender-specific factors that are common to all these charges. I shall then consider the offence-specific factors that are specific to each individual charge.

Offence-specific factors

In my view, there are a number of offence-specific aggravating factors that warrant the imposition of a deterrent sentence.

Abuse of trust and position of authority

The Defence argues that the accused was not in a position of trust and authority as the accused was not in loco parentis to the Victims on two grounds:

(a) The total period of cohabitation between the accused and PW1 was only about three years, as the accused and PW1 started cohabiting in 2000 and ended their relationship in 2003.

(b) PW1 was the main disciplinarian of the Victims, not the accused.

The Defence’s submission on sentence is completely at odds with its position taken during trial, which was that the accused was a father figure to the Victims (see the Main Judgment at [275]). In his third long statement recorded under s 22(1) of the CPC on 22 May 2019 at 3.15pm, the accused had also admitted that both he and PW1 were “the main person[s] to discipline V2 and V1”.

It is also incorrect for the Defence to submit that the accused cohabitated with PW1 for three years. Their period of cohabitation was six years from 2000 to 2006.

I find that the accused was clearly in a position of trust and authority vis-à-vis the Victims. At the conclusion of the trial, it became clear that the accused was a father figure to the Victims even though he was not their biological father. The Victims called the accused “Papa”. According to V2, the accused was “a good person and a good father” when “no one was there for [the Victims]”, but “the sexual abuse part, it wasn’t right”. As the Victims’ biological mother was mostly at work, the accused became the Victims’ primary caregiver for the period of six years when he and their biological mother cohabited. PW1 testified during the trial that she had assumed that the Victims were in good and safe hands when they were placed under the accused’s care. The accused boldly exploited the trust reposed in him and sexually assaulted the Victims within the sanctity of their home over a number of years.

I have already highlighted the need for deterrent sentences in cases of familial sexual assault at [32]–[34] above. The case authorities are also clear that the abuse of a position of authority and breach of trust are aggravating factors that warrant a deterrent sentence and pushes the offence in question to a higher band (NF at [39]–[40]; GBR v Public Prosecutor and another appeal [2018] 3 SLR 1048 at [29(c)]; Terence Ng at [44(b)]). As the Court of Appeal stated in Kelvin Lim at [25], “those who have charge of children cannot abuse their positions for the sake of gratifying their sexual urges”. Thus, the accused’s abuse of trust justifies a deterrent punishment.

Therefore, the accused had gravely abused the trust and authority reposed in him as the Victims’ “father figure” when he committed the sexual offences against the Victims in the safe sanctuary of their home. This is an aggravating factor.

The Victims were young and vulnerable

The Victims were very young and vulnerable when the offences were committed. When the victims are especially vulnerable because of their age, as is the case here, “[c]oncerns of general deterrence weigh heavily in favour of the imposition of a more severe sentence to deter would-be offenders from preying on such victims” (Terence Ng at [44(e)] citing Law Aik Meng at [24(b)]). Both the Victims were in primary school when the accused committed the most egregious sexual assaults against them. V1 was between seven and nine years old when the accused attempted to rape her, while V2 was 11 years old when the accused committed unnatural carnal intercourse in respect of V2. The accused started sexually abusing V1 when she was seven to nine years old and persisted in his assaults until she was 13 years old. Similarly, V2 was 11 years old when the accused started sexually assaulting him, and the abuse continued until V2 was 13 years old.

I agree with the Prosecution that the Victims were rendered especially vulnerable by the circumstances. When the accused was living with PW1 and the Victims, PW1 frequently worked the night shift, leaving the accused at home alone with the Victims for extended periods of time. In the day, PW1 would be sleeping most of the time. In these circumstances, the accused brazenly took advantage of the Victims’ vulnerability, committing a majority of the sexual offences while the Victims were asleep. This was the accused’s modus operandi for almost all the eight proceeded charges, except for the second charge and the sixth charge. The accused’s brash sexual exploitation of the young and vulnerable Victims clearly warrants a sentence based on the principles of deterrence and retribution.

Premeditation

The accused displayed a significant degree of premeditation in his commission of the offences. As the Prosecution points out, the accused “was familiar with the day-to-day routine of the [V]ictims’ mother and was careful to commit the offences only when she was at work”. The accused also attempted to hypnotise the Victims and spiked a glass of water before he gave it to V1. These were done before he sexually assaulted them. I shall elaborate further on these specific instances of premeditation below (at [60] and [62]).

Offender-specific factors

The accused has consented to the TIC Charges being taken into consideration for the purpose of sentencing (see [3] above). 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 Public Prosecutor v UI [2008] 4 SLR(R) 500 at [38]). In the present case, three out of four of the TIC Charges are sexual offences committed against the Victims – the seventh and eighth charges relate to the accused’s masturbation of V2, and the fourth charge relates to the incident when the accused showed nude images of females to V1 and asked her to perform the same acts as those females in the images. Thus, they are similar to the charges proceeded with by the Prosecution against the accused. This reinforces the need for specific deterrence.

The accused was diagnosed with Pedophilic Disorder by Dr Ong. During the trial, I saw no reason to doubt Dr Ong’s diagnosis. In Kelvin Lim at [31], the Court of Appeal dismissed the notion that pedophilia ought to be a mitigating factor:

I completely agree with the Court of Appeal’s reasoning that pedophilia is not a mitigating factor. To suggest that the court should show leniency to an accused person who has pedophilia is profoundly incorrect and morally wrong. If pedophilia were a mitigating factor, it would have been an unfortunate misplaced sympathy which unduly condones such conduct and encourages pedophilic sexual offenders to commit sexual assaults in future.

I am unable to find any relevant offender-specific mitigating factors in the present case. The accused claimed trial and did not spare the Victims the ordeal of testifying in court. Thus, the sentencing discount which would otherwise be accorded to an accused person on account of his plea of guilt is inapplicable in the present case.

I shall turn to consider the appropriate sentence for each charge.

Sentences for charges involving V1

Outrage of modesty

(1) The first and second charges

The first and second charges involve the accused rubbing his penis against V1’s vaginal area skin-to-skin. This act involves a high degree of sexual exploitation. Having regard to the offence-specific aggravating factors set out at [42]–[47] above, I agree with the Prosecution that the first and second charges fall within the high end of Band 3 of the Kunasekaran framework, with an indicative sentence of one year and six months’ imprisonment and six strokes of the cane each.

(2) The fifth charge

The degree of sexual exploitation in the fifth charge is moderate as the fifth charge involves the accused grinding his penis against V1’s vagina over her clothes. According to V1, the accused smelled of alcohol at the time. Given the offence-specific aggravating factors set out at [42]–[47] above, I find that the fifth charge falls within the lower end of Band 3, with an indicative sentence of one year’s imprisonment and three strokes of the cane.

(3) The sixth charge

The sixth charge involves the accused inserting a cotton bud into V1’s anus, informing her that it was because he wanted to see if her anus was dirty. This was a form of deception, an aggravating factor on top of those set out at [42]–[47] above. There was also penetration of V1’s anus with the cotton bud. I find that the sixth charge falls within the lower to middle end of Band 3, with an indicative sentence of one year’s imprisonment.

(4) Sentencing precedents

The above sentences are consistent with sentencing precedents. In Ng Chiew Kiat v Public Prosecutor [1999] 3 SLR(R) 927 (“Ng Chiew Kiat”), the offender was convicted after trial of three charges under s 354 of the Penal Code. The offender was the employer of the victim, a 19-year-old domestic helper. For the first charge, the offender used his right hand to grab the victim’s buttocks over her clothes. For the second charge, the offender first caressed the victim’s right leg and right hand, before he then caressed the victim’s breasts and vagina over her clothes. For the third charge, the offender caressed the victim’s breasts under her shirt and kissed her lips. The offences occurred over a period of three months. The offender was sentenced to a fine of $4000 for the first charge, and nine months’ imprisonment and three strokes of the cane for each of the second and third charges.

The outrage of modesty in the present case is more egregious, given the following:

(a) The accused’s assaults, some of which were skin-to-skin, involve a higher degree of bodily intrusion than in Ng Chiew Kiat. The sexual contact was also more prolonged than the fleeting touches in Ng Chiew Kiat.

(b) At the time of the assaults, V1, who was only seven to 13 years old, was significantly younger than the victim in Ng Chiew Kiat.

(c) The degree of trust reposed in the accused in the present case is greater than that in Ng Chiew Kiat. Importantly, the accused was often left at home alone with V1 when PW1 was out of the home working for long hours. The accused’s outrage of V1’s modesty in the sanctity of the home is a grave abuse of the trust and authority reposed in him.

(d) The period of abuse in the present case is around four to five years (ie, from 2000 or 2001 in the first charge to 2005 in the sixth charge). This period is materially longer than that in Ng Chiew Kiat, where the offences occurred over a period of three months.

(5) Summary on outrage of modesty charges

To summarise, I find the following sentences appropriate for the outrage of modesty charges:

(a) The first charge: One year and six months’ imprisonment and six strokes of the cane.

(b) The second charge: One year and six months’ imprisonment and six strokes of the cane.

(c) The fifth charge: One year’s imprisonment and three strokes of the cane.

(d) The sixth charge: One year’s imprisonment.

Attempted rape (the third charge)

The prescribed punishment for attempted aggravated rape under s 376(2) read with s 511 of the Penal Code is eight to ten years’ imprisonment and 12 strokes of the cane (see [8] above).

The accused had attempted to rape V1 while she was asleep and defenceless. V1 testified during the trial that the accused had given her a glass of water to drink, which V1 described as tasting “off” and “more bitter than usual” (see the Main Judgment at [87]). This suggests that the accused had spiked the glass of water. V1 then fell asleep. When she woke up, she found herself naked and lying face-down on the bed with her legs tucked under her, like the Muslim prayer position, with her buttocks in the air. The accused then went on top of V1 and attempted to penetrate her (see the Main Judgment at [87]–[88]). It is clear from V1’s testimony that the accused had specifically premeditated this offence and taken steps to render V1 defenceless and in an especially vulnerable position. This is an aggravating factor. Coupled with the aggravating factors identified at [42]–[47] above, I find that the third charge falls within the middle to high end of Band 2 of the Terence Ng framework. A sentence of eight years and six months’ imprisonment and the mandatory 12 strokes of the cane is appropriate.

Sentences for charges involving V2

Unnatural carnal intercourse (the ninth charge)

The ninth charge is a composite charge encapsulating multiple penetrative offences committed against V2, ie, penile-oral and penile-anal penetration.

The accused attempted to hypnotise V2 before sexually assaulting V2. In this way, the accused caused and capitalised on V2’s defenceless state to “satiate his sexual desires”, as the Prosecution describes. Actual penetration was also involved, thereby disclosing a high degree of bodily intrusion. I note, however, that while the accused caused V2’s penis to penetrate his anus, he was not successful in penetrating V2’s mouth with his own penis, which would otherwise have exposed V2 to the risk of sexually transmitted diseases.

Having regard to the facts highlighted at [62] above together with the aggravating factors identified at [42]–[47] above, I find that a sentence of eight years’ imprisonment appropriately reflects the gravity of the ninth charge.

The sentence of eight years’ imprisonment is broadly consistent with sentencing precedents:

(a) In Kelvin Lim at [24], the Court of Appeal determined the sentence by “start[ing] from the position that a paedophile who commits unnatural carnal intercourse (in the form of anal intercourse) against young children below the age of 14 years, without any aggravating or mitigating factors, should be sentenced to ten years’ imprisonment.” I agree with the Prosecution that it is clear the Court of Appeal considered that ten years’ imprisonment is the starting point where it is the child’s anus being penetrated, causing the child pain, and not the accused’s (see, eg, Kelvin Lim at [21(a)] and [26]).

(b) In Adam bin Darsin v Public Prosecutor [2001] 1 SLR(R) 709 (“Adam”), the offender pleaded guilty to eight charges under s 377 of the Penal Code and consented to 15 similar charges being taken into consideration. The offender had fellated eight victims aged between 12 and 15 years old over a period of 12 months. The Court of Appeal at [23] sentenced the offender to five years’ imprisonment per charge, observing at [21] that an offender performing fellatio on his victims “stands at the bottom of the scale” of gravity as compared to anal intercourse or where the offender coerced a young victim to perform fellatio on him. The Court of Appeal ordered four sentences to run consecutively, resulting in a global sentence of 20 years’ imprisonment.

The facts in the present case are more aggravated than those in Adam:

(a) The accused in the present case claimed trial as opposed to the offender in Adam who pleaded guilty. The sentencing discount accorded to the offender in Adam for his plea of guilt is, therefore, inapplicable to the accused in the present case.

(b) For the ninth charge in the present case, the accused fellated V2 and caused V2’s penis to penetrate his own anus. This represents a greater degree of V2’s bodily intrusion than that of the victims in Adam, who were fellated by the offender.

(c) V2 was only 11 years old at the time of the offence and was, therefore, younger and more vulnerable than all the victims in Adam.

I, therefore, find that the sentence for the ninth charge should be higher than that in Adam. A sentence of eight years’ imprisonment adequately reflects the gravity of the ninth charge.

Attempted unnatural carnal intercourse (the tenth charge)

The accused attempted to insert his penis into V2’s anus but was unsuccessful. Given that this was an attempt at penetrating V2’s anus, the sentence should be half of the starting point of ten years’ imprisonment as stated in Kelvin Lim (see [64(a)] above). In Kelvin Lim, the offender was sentenced to five years’ imprisonment for the charge of attempted anal penetration under s 377 read with s 511 of the Penal Code. However, it bears mentioning that the facts in Kelvin Lim were considerably more aggravated, with the offender in that case facing ten charges under s 377 of the Penal Code. I, therefore, find that the appropriate sentence for the tenth charge is four years’ imprisonment.

Attempted outrage of modesty (the eleventh charge)

I agree with the Prosecution that if the eleventh charge were a complete offence, the degree of sexual exploitation would be high as the accused would have penetrated V2’s anus with his finger. Bearing in mind the aggravating factors identified at [42]–[47] above, the eleventh charge would then fall within the high end of Band 3 of the Kunasekaran framework, with an indicative starting sentence of one and a half to two years’ imprisonment and six strokes of the cane.

Given that the eleventh charge is an attempted offence and the maximum imprisonment term is capped at one year’s imprisonment under s 511 of the Penal Code (ie, half of two years), I find that a sentence of six months’ imprisonment is appropriate.

Is the accused medically fit for caning?

In the course of the trial, the accused testified that he had sustained some serious injuries to his back sometime in 2014 or 2015, ie, more than a decade after the commission of the offences. It was because of his back injuries that out of prudence I ordered that the accused be medically examined to see if he is medically fit for caning before I proceed to impose caning on him. The case was adjourned for the accused to be medically examined on whether he is fit for caning. I was informed that the accused had refused to be medically examined. Accordingly, I shall proceed to impose caning as I know that the accused will have to be medically examined before caning is executed. If, by then, he is found to be medically unfit for caning, the case will be brought to my attention for further directions regarding the order of caning on the accused. Accordingly, I impose the statutory maximum of 24 strokes of the cane although the aggregate number of strokes of the cane for the eight proceeded charges is 27. This is in view of s 328(6) of the CPC which limits the maximum number of strokes of the cane to 24 in the same sitting.

I notice that the Prosecution originally submitted that 12 months’ imprisonment in lieu of 24 strokes of the cane ought to be imposed to compensate for the deterrent and retributive effects of caning. However, the Prosecution later sought to strike out its submissions on imprisonment in lieu of caning and clarified that it was no longer seeking an additional term of imprisonment in lieu of caning under s 332(5) of the CPC if the accused is subsequently found to be unfit for caning. No reasons were given for the Prosecution’s dramatic change in position.

The global sentence

The one-transaction principle

The Prosecution and the Defence agree that the sentences for the first, third and ninth charges should run consecutively. The Defence has expressed its assent for the sentences of either the ninth or the tenth charge to run consecutively.

Section 307(1) of the CPC provides as follows:

I am aware that the general rule, as stated in Public Prosecutor v Raveen Balakrishnan [2018] 5 SLR 799 (“Raveen”) at [54], is that “sentences for unrelated offences should run consecutively, while sentences for related offences forming part of a single transaction should run concurrently”. The one-transaction rule, however, is “neither invariable nor mandatory” (Raveen at [66]). In Tan Kheng Chun Ray v Public Prosecutor [2012] 2 SLR 437, the Court of Appeal noted at [17] that “the application of the one-transaction rule is also an exercise in commonsense. It also bears repeating that the application of this rule depends very much on the precise facts and circumstances of the case at hand”.

The offences in the first, third and ninth charges are more serious and they occurred on different occasions. Further, the offence in the ninth charge was committed against a different victim, ie, V2, while the offences in the first and third charges were committed against V1. Therefore, the sentences for the first, third and ninth charges are to run consecutively, with the sentences for the remaining five charges to run concurrently. This results in a total imprisonment term of 18 years.

The totality principle

The global sentence of 18 years and four months’ imprisonment is consistent with the totality principle. The sentence is not crushing on the accused and is in keeping with his past record, given the gravity of the offences and the accused’s current age of 48 years.

Summary of findings

In summary, I make the following findings:

(a) Sentencing principles: Deterrence and retribution are the governing sentencing principles given the nature of the heinous offences and the relationship between the accused and the Victims.

(b) Offence-specific factors: There were three key offence-specific aggravating factors. These are the accused’s abuse of trust and position of authority, the fact that the Victims were very young and vulnerable, and the accused’s premeditation of the offences.

(c) Offender-specific factors: There were no offender-specific mitigating factors. The accused claimed trial and did not spare the Victims the trauma of testifying in court. Further, the accused was diagnosed with Pedophilic Disorder.

(d) Outrage of modesty (the first, second, fifth and sixth charges): The majority of the outrage of modesty offences committed against V1 involved a high degree of sexual exploitation. The presence of multiple aggravating factors placed all the offences within Band 3 of the Kunasekaran framework. For the first and second charges, I impose a term of one year and six months’ imprisonment and six strokes of the cane each. As for the fifth charge, I impose a term of one year’s imprisonment and three strokes of the cane. For the sixth charge, I impose a sentence of one year’s imprisonment.

(e) Attempted rape (the third charge): Having regard to the aggravated nature of the offence, including the vulnerable and defenceless state of V1 during the offence, a sentence of eight years and six months’ imprisonment and the mandatory 12 strokes of the cane is justified.

(f) Unnatural carnal intercourse (the ninth and tenth charges): Given that the ninth charge is a composite charge involving multiple sexual acts, including one where the accused caused V2’s erected penis to penetrate his own anus, an eight-year imprisonment term for the ninth charge is appropriate. A four-year imprisonment term for the tenth charge of the accused’s attempt to insert his penis into V2’s anus is justified.

(g) Attempted outrage of modesty (the eleventh charge): A term of six months’ imprisonment is imposed.

(h) The global sentence: Applying the one-transaction principle, the sentences of imprisonment for the first, third and ninth charges are to run consecutively, resulting in an aggregate sentence of 18 years’ imprisonment and 24 strokes of the cane. The global sentence of 18 years’ imprisonment and 24 strokes of the cane is consistent with the totality principle.

In my deliberation I am conscious that the offences were committed more than 15 years ago and some of the statutory-prescribed punishments then were different from those of today. I am aware that I have to be mindful of the statutory-prescribed punishments at the time when the offences were committed as penal punishments cannot be applied ex post facto.

The following table shows a breakdown of the statutory-prescribed punishments for each of the proceeded charges, the Prosecution’s and the Defence’s sentencing positions, and the sentences I impose on the accused:

Conclusion

For all the above reasons, I sentence the accused to 18 years’ imprisonment and 24 strokes of the cane. I further order that his sentence of imprisonment be backdated to 21 May 2019, the date of his remand.