Public Prosecutor v AUB

Tay Yong Kwang J:

[1] The accused is a male Singaporean who is now 47 years old. He pleaded guilty to the following two charges:

[2] He also admitted the following offence and consented that it be taken into consideration for the purpose of sentence:

[3] The punishments provided by law in respect of the first charge are imprisonment of not less than eight years and not more than 20 years and caning of not less than 12 strokes. The offence in the second charge is punishable with a fine not exceeding $10,000 or imprisonment not exceeding five years or both for a first offender.

[4] I sentenced the accused to 12 years’ imprisonment and 12 strokes of the cane for the first charge and to 1 year’s imprisonment in respect of the second charge. I ordered both imprisonment terms to run consecutively with effect from 23 July 2014, the date of remand.

[5] The accused admitted all the facts set out in the following statement of facts:

[6] The accused has no criminal record. The Prosecution submitted that the appropriate sentence for both charges would be a global sentence of at least 13 years’ imprisonment and 12 strokes of the cane.

[7] Victims of sexual penetration experience the same emotional scars as rape victims. The sentencing considerations that apply to rape should therefore be applied to victims of sexual penetration as well. It has been said that rape is the most heinous offence against a female and that sexual penetration with the finger is another very vicious violation of the female body (Public Prosecutor v BNN [2014] SGHC 7 at [51]).

[8] In the context of sexual offences against minors, it is stated in GAJ v Public Prosecutor [2015] SGHC 134 at [27] (“GAJ”) that the highest end of the sentencing scale is reserved for cases in which the minor is particularly vulnerable and where the offender has exploited the minor to a significant degree by subjecting him or her to penetrative sexual activity in circumstances involving a great deal of coercion that might include violence. The Prosecution submitted that the present case involved almost all the elements mentioned and that necessitated the application of the highest end of the sentencing scale.

[9] In PP v NF [2006] 4 SLR(R) 849 (“PP v NF”), the High Court discussed four broad categories of rape offences and set a benchmark sentence for each of them. Following from the arguments at [7] and [8] above, the Prosecution submitted that the present case was analogous to a Category 2 rape as formulated in PP v NF. Category 2 cases involved particularly vulnerable victims or where there were threats, where the offender was in a position of trust, where the victim was deprived of her liberty for a period of time and/or where the rape was carried out by a group. The suggested benchmark was 15 years’ imprisonment and 12 strokes of the cane. The Prosecution also highlighted that Parliament has provided for aggravated sexual penetration offences the same enhanced punishments as those for aggravated rape.

[10] The aggravating factors in this case included the fact that the victim was very young, being only 12 to 13 years old at the time of the offences. That was one to two years below the age set by Parliament for enhanced punishment to apply.

[11] The accused was in a position of trust as the victim is his biological daughter. Further, the offences took place over a period of more than a year. The victim has suffered emotionally as a result of the sexual assaults. The assaults took place in the victim’s home, a place where the victim ought to have felt safest. The victim has also been compelled to leave her home to live elsewhere with others. There was premeditation involved as the accused chose to strike when his wife (the victim’s mother) was in Malaysia or when the family was asleep.

[12] In further aggravation of his offences, the accused attempted to influence the victim into dropping the case against him by sending her messages on Facebook using different names, including that of the victim’s brother. There was also emotional blackmail in the message about “granny”.

[13] In respect of the first charge, case precedents showed sentences ranging from 9 to 12 years’ imprisonment together with 12 to 16 strokes of the cane.

[14] For the second charge, the Prosecution submitted that the court should be guided by the key considerations of the vulnerability of the minor and the degree to which the accused has exploited the minor (see GAJ at [13]). The younger the minor, the more vulnerable she is likely to be. GAJ (at [50]) also suggests a benchmark of between 6 and 8 months’ imprisonment where the sexual act that took place involved the touching of naked genitalia (regardless of whose genitalia it was), where the minor was 14 years old or more and did not appear to be particularly vulnerable, where the offender did not coerce or pressure the minor into participating in the sexual act and where there was no element of abuse of trust.

[15] The Prosecution argued that the sentence here has to be significantly higher than the benchmark suggested in GAJ because the victim was under 14 years of age and vulnerable. She did not consent to being touched and the abuse of trust was of the highest order. The accused had also admitted the third charge and consented to it being taken into consideration for sentencing purposes.

[16] The accused was the main provider of financial support for his family comprising his wife, his four young children and his elderly mother. He stated that he is deeply remorseful and regrets his mistake. He pleaded for leniency and promised not to repeat his wrongdoing. He “has sought to be a good man, husband and father”.

[17] The accused is a first offender and he has cooperated in the investigations, willingly disclosing matters pertaining to the offences. He urged the court to order the imprisonment terms to run concurrently.

[18] The accused’s wife, 41 years of age, wrote to the court to express her hope that her husband would be “given the lightest sentence”. Since his remand, she has been having difficulty managing the four children. Recently, she was informed by her second daughter’s school teacher that her daughter “has shown suicidal tendency”. She requested that the accused be released soon so that he could assist her in managing the children.

[19] In his handwritten letter to the court, the accused stated that he is sorry for his mistake and that he had no intention to hurt or harm anybody. He had been a law-abiding citizen all his life and cooperated fully with the police throughout the investigations. His family was in financial difficulties, having a combined income of about $3,000. His 79-year-old mother has health issues. When his wife visited him while he was in remand, she was in tears and very upset, stressed and tired. Their children are falling apart—they have become vulgar and rude and were stealing money. They need nurturing, love and guidance. He is aware that he has ruined his family whom he loves. He therefore sought leniency, sympathy and forgiveness and asked that he be allowed to be re-united with his family as soon as possible. He promised never to break the law again.

[20] In sentencing the accused, I agreed generally with the Prosecution’s submissions. Since this was a case of a father sexually assaulting his young daughter, the decided cases showed that a deterrent sentence was unavoidable.

[21] Punishing a father for sexual offences against his own offspring is one of the most unenviable tasks of a sentencing court. Such crimes are abhorrent and, in order to protect young, vulnerable victims, the court metes out severe punishments with the hope of spreading a message of general and specific deterrence. However, punishing the offender in such situations often means taking away the source of financial support for the victim and the rest of the family. In some cases, the victim is even blamed for breaking up the family. Because of this, some victims may not dare to seek help. I certainly hope that the accused’s family, particularly his wife, will not turn the victim into the villain in this case. The victim probably needs the love and assurance of her mother even more now than before.

[22] Another aspect of imposing deterrent sentences in the form of imprisonment in such cases is that the accused should be kept away from the young victim for a sufficiently long period so that she has time to grow up without worrying that her assailant is living in the same household and possibly alone with her at times. That is the other very unsavoury reality of such offences—often, the offender and the victim have to meet again sometime in the future and probably have to live together, except where the offender’s wife divorces him and leaves with the children.

[23] I agree that the younger the victim, the more vulnerable and helpless she is. The Prosecution has argued that the victim here was very young and the sentence should therefore be adjusted upwards in severity. However, 12 to 13 years in age is not significantly lower than the 14 years set by Parliament for the purpose of the offence of aggravated sexual penetration, for which minimum punishments have already been mandated. The victim’s age in this case therefore should not be a major or a determinative factor. It would be quite different if she were, say, 8 years old or younger at the time of the offences. However, as in all matters of this nature, it is a question of degree and I will certainly not try to ascribe a particular length of imprisonment to each year in age.

[24] The overall criminality of the offences should be looked at. In my view, the determinative and weightiest factors in this case are the facts that the victim is the accused’s daughter and that the sexual assaults took place within the home, a place where the victim should have felt completely safe.

[25] Imprisonment is mandatory for the first charge. In determining the overall criminality, I was of the opinion that the second charge warranted imprisonment, especially in the light of a similar offence taken into consideration. I also decided that both terms of imprisonment should run consecutively. The two offences were clearly not part of the same transaction as they were committed on different occasions although they occurred in the same location and against the same victim. The rationale for the one-transaction rule is that consecutive sentences are not appropriate if the various offences involve a single invasion of the same legally protected interest (Mohamed Shouffee bin Adam v Public Prosecutor [2014] 2 SLR 998). Although the two offences involved an unwelcome invasion of the victim’s bodily integrity, particularly her vagina, I think it would be against good sense to regard them as a single invasion of the same legally protected interest in the circumstances here. In any case, as mentioned earlier, the two offences occurred on different days and were not part of a continuum of events. Not ordering consecutive imprisonment terms in such a situation is to give an unwarranted discount to the accused for multiple assaults.

[26] For these reasons, I imposed the sentences set out at [4] above. The accused has filed a notice of appeal against sentence.