Public Prosecutor v Sim Wei Liang Benjamin

Tay Yong Kwang J:

[1] The accused, born on 11 August 1984, is now 31 years old. At the time of the offences here, he was 28 years old and was residing in a condominium in Woodleigh Close with his parents and brothers.

[2] There were four young female victims named in the charges. I shall refer to them as V1, V2, V3 and V4.

[3] V1 and V2 are twins. They were 13 years old at the time of the respective offences. They were both in Secondary One then. V3 was also 13 years old and a Secondary One student at the relevant time. V4 was 11 years old and a Primary Five student at the material time.

[4] The accused pleaded guilty to eight charges and consented that 15 other charges be taken into consideration for the purpose of sentence. The eight charges that he pleaded guilty to were as follows:

[5] The 15 charges taken into consideration comprised:

(a) two charges of committing an indecent act with V1, an offence punishable under s 7 of the CYPA;

(b) one charge of committing an indecent act with V2, an offence punishable under s 7 of the CYPA;

(c) seven charges of aggravated sexual penetration of V2, an offence punishable under s 376A(3) of the Penal Code;

(d) one charge of statutory rape against V2, an offence under Section 375(1)(b) of the Penal Code and punishable under Section 375(2) of the Penal Code;

(e) three charges of aggravated sexual penetration of V3, an offence punishable under s 376A(3) of the Penal Code; and

(f) one charge of procurement of an obscene act by V4, an offence punishable under s 7 of the CYPA.

[6] The accused admitted all the facts set out in the following Statement of Facts (with the first two sections describing the accused and the four victims deleted as the redacted information has been set out at [1] to [3] above):

[7] The prosecution said the accused was a sex predator who targeted young girls and urged the court to sentence him to an aggregate sentence of between 20 and 22 years’ imprisonment and the maximum of 24 strokes of the cane. The prosecution submitted that the principles of deterrence, retribution and prevention of crime applied in this case.

[8] The prosecution submitted that the statutory rape offences here involving different young girls bore the hallmarks of category 2 and category 3 rapes within the meaning of the classifications given in Public Prosecutor v NF [2006] 4 SLR(R) 849 (“PP v NF”). The appropriate sentence for each of the statutory rapes should therefore be in the region of 13 years’ imprisonment and 12 strokes of the cane.

[9] For the offences of penis-mouth penetration, the prosecution relied on Public Prosecutor v Yap Weng Wah [2015] 3 SLR 297 (“PP v Yap Weng Wah”) to suggest a sentence of 7 years’ imprisonment and 3 strokes of the cane for each charge. For the offence of finger-vagina penetration, the prosecution submitted that a sentence of between 1 and 2 years’ imprisonment and 2 strokes of the cane would be appropriate. For the offence involving the licking of the vagina, the prosecution suggested a sentence of between 12 and 15 months’ imprisonment. For the offence involving the sending of the naked photographs, the prosecution submitted that the appropriate sentence would be 6 months’ imprisonment. For the offence under the Films Act, it was suggested that a fine between $100 and $200 would suffice.

[10] Although the accused was not diagnosed to be a paedophile, he had committed multiple offences against young girls. There was no coercion by him but the young girls were vulnerable victims who must be protected by the law. The accused had used the Internet with the clear intention of ensnaring his victims and luring them to engage in sexual activities with him. The prosecution highlighted that many of the offences occurred in public places. This showed that the accused had no self-control and no regard for the norms of decency of a civilised society. His conduct could also have adversely affected the young girls’ still developing attitudes by encouraging them to believe that sexual activity in public places is socially acceptable.

[11] The prosecution also pointed out that the accused had given the victims money and mobile phones. V1 and V2 already owned mobile phones and his obvious purpose was to chat with the victims in secret without their parents finding out about him.

[12] V1 and V2 gave victim impact statements about the adverse consequences of the accused’s criminal acts. V1 felt dirty and troubled and blamed herself for introducing her twin sister to the accused. V2 had nightmares about the accused threatening her not to report the matter to the police.

[13] The accused is a danger to society as shown by the multiple offences against the young victims. Further, his psychiatric report showed that he lacked self-control and insight into what he had done. He told the psychiatrist from the Institute of Mental Health (“IMH”) that he had told the victims to keep his relationship with them a secret from their parents. The age gap between him and the victims was not an issue to him starting a sexual relationship with them. He also said he was not wrong in having sex with the young girls as he had asked for their consent before doing so. He was not aware that what he was doing was against the law and therefore felt it was unjust to charge him. The same psychiatric report also noted that when the accused was eight years old, his parents brought him to the Child Guidance Clinic of IMH because of concerns over his delayed developmental milestones. However, the accused was not found to be suffering from any mental disorder. He has a borderline to low average level of intellectual functioning but does not suffer from intellectual disability.

[14] The accused was not entitled to be treated as a first offender despite the absence of a criminal record. This was because he has admitted to a total of 23 offences, including those taken into consideration.

[15] The prosecution submitted that at least three imprisonment terms should run consecutively to arrive at the suggested aggregate sentence of between 20 and 22 years’ imprisonment and the maximum of 24 strokes of the cane. They should include one for statutory rape, one for penis-mouth penetration and one for the licking of the victim’s vagina. This would accord with the principles set out in Mohamed Shouffee bin Adam v Public Prosecutor [2014] 2 SLR 998 (“Shouffee”). Charge 1 and charge 14 (see [4] above) concerned a single incident at the accused’s home on 10 Dec 2012 but the other six charges each related to a distinct incident. Moreover, all eight charges involved either a different victim or a different form of sexual violation.

[16] The accused was working as a security officer. He has remained in remand since the date of his arrest. He has pleaded guilty, was remorseful and had cooperated fully with the police during investigations.

[17] He started talking only when he was 3 years old. When he was a child, his parents were warned by a psychiatrist not to expect much from him. He behaved childishly even in adolescence and would interact with only younger children during family gatherings. He performed poorly academically. He completed GCE “N” level and then went on to the Institute of Technical Education but decided to drop out as he had difficulties following the lessons.

[18] He was a loner who suffered from low esteem as his two brothers have done well academically. Because of this, he took on a different identity on the Internet so that he could imagine himself as a confident and wealthy man.

[19] The accused felt that V1, V2 and V3 behaved in a way beyond their age and appeared more well-developed and mature than their age. He would buy them gifts and meals only when they asked him to or when they liked a particular item. He thought it normal to do so in a relationship. He bought mobile phones for V1 and V2 when they asked him to do so because they told him that their mother would check their existing mobile phones.

[20] He respected the victims and would seek their consent before engaging in any sexual activity with them. He never used any force or coercion. He also put on a condom whenever he had sexual intercourse with them.

[21] The accused’s offences of statutory rape were akin to a category 1 rape in PP v NF. There was no deception or coercion involved and there were no aggravating factors. The starting point for the appropriate sentence for each charge would therefore be 10 years’ imprisonment and six strokes of the cane.

[22] For the CYPA charges, relying on AQW v Public Prosecutor [2015] SGHC 134 (“AQW”) and several other cases, it was submitted that a sentence of about ten months’ imprisonment for each offence would be fair.

[23] For the finger-vagina and penis-mouth penetration offences, the accused relied on AQW, Public Prosecutor v Qiu Shuihua [2015] 3 SLR 949 and Public Prosecutor v Ng Kean Meng Terence [2015] SGHC 164 in submitting that the appropriate sentence in each case should be 12 months’ imprisonment and two strokes of the cane. The accused argued that the benchmark in PP v Yap Weng Wah was out of line with these cases and ought to be reviewed.

[24] In respect of the Films Act charge, it was argued that “a low fine” would suffice.

[25] In the light of the accused’s clean criminal record, his personal circumstances and the low likelihood of re-offending, it was submitted that there is no need for specific deterrence in this case. The accused relied on the psychiatric report on the accused by IMH tendered by the prosecution as well as a psychiatric report dated 30 Oct 2014 on the accused prepared by Dr Lim Yun Chin of the Raffles Hospital. It was reported in the latter report that the accused was an introvert who had difficulty relating to people of his age because of his low self-worth and awkward social skills. The accused was not able to relate to females of his age as he believed that they would view him with disdain due to his lack of achievement and perceived unattractive looks. Dr Lim also opined that the accused’s culpability appeared to be less than that of a person of normal intelligence.

[26] Despite the accused’s poor academic record, he had many years of experience in security firms and was recommended to attend a supervisor’s course. As a result, he was promoted to a supervisory position. He had also done voluntary work for his former school and for the church which he attended. He has strong family support. His parents and his aunt have written letters to the court seeking leniency for the accused. The accused could therefore be rehabilitated upon his release from prison.

[27] Citing AQW again, the accused submitted that the use of the Internet was not an aggravating factor in itself and the use of a false moniker was aggravating only in so far as it suggested an intent or attempt to conceal identity and avoid detection. In this case, the accused committed some offences in his home or in the common areas of the condominium in which he lived. There was no attempt to conceal his identity.

[28] The accused submitted that this case clearly did not call for the imposition of more than two consecutive imprisonment terms to reflect the overall criminality of his conduct. It would accord with the totality principle.

[29] The offences under the Penal Code are punishable with imprisonment of up to 20 years. In addition, the offender shall be liable to fine or to caning. The punishments provided under s 7 of the CYPA are a fine not exceeding $10,000 or imprisonment not exceeding five years or both for a first conviction. The punishment under s 21 of the Films Act is a fine of not less than $100 for each film that the offender has in his possession subject to a maximum aggregate of $20,000.

[30] It was clear from the facts that the accused was a prowler on the Internet looking out for young girls whom he could first befriend and then lure into sexual activities. The offences that he committed, particularly the Penal Code offences, did not require the element of coercion or violence or the lack of consent. They were enacted to protect young victims who are deemed not to be ready for such sexual activities. If coercion or violence was used, it would certainly be treated as an aggravating factor. Similarly, the obtaining of consent merely removed an aggravating factor from the equation.

[31] The accused’s acts within a period of about three months have affected the lives of four young girls and their families. There is also the possibility of some residual adverse effect on the girls in the future.

[32] The view that PP v Yap Weng Wah is not consonant with the other recent cases cited by the accused, in particular AQW, is not correct. The suggested benchmark of six to seven years’ imprisonment in PP v Yap Weng Wah (at [64]) was for an aggravated offence of penis-mouth penetration under s 376A(3) of the Penal Code as the victim was below the age of 14 at the material time. The higher maximum sentence of 20 years’ imprisonment provided for this offence reflected Parliament’s view that sexual abuse against victims below the age of 14 should be viewed more seriously than those where the victims were 14 and above (as in AQW). Penis-mouth penetration is also a graver offence than finger-vagina penetration. Further, it carries the added danger of transmission of disease to the victim.

[33] I accepted that the accused was remorseful by pleading guilty. His string of offences against four victims within a period of a few months disentitled him to be considered as a true first-time offender despite the absence of a criminal record. At the age of 28 at the material time, he should be mature and knowledgeable enough to take responsibility for all his actions.

[34] I did not accept the prosecution’s arguments concerning the fact that many of the offences occurred in public places (see [10] above). Although the offences took place in a shopping mall and in a toilet on the grounds of the condominium, the accused kept the acts away from the public eye. He did not do them openly. For instance, he led the victim to a staircase landing in the shopping mall before committing the offence. Similarly, there was no indication that the incident in the toilet was done brazenly. Although nothing was said about this, in all likelihood, the accused would have closed the door leading to the toilet or at least the cubicle’s door. Even in the taxi incident, he made the victim switch her seat so that she was hidden from the taxi driver’s view during the sexual act.

[35] The statutory rapes here could be considered to be somewhere between category 1 and category 2 rapes according to the classifications in PP v NF. The benchmarks in PP v NF have been approved by the Court of Appeal in Public Prosecutor v Mohammed Liton Mohammed Syeed Mallik [2008] 1 SLR(R) 601 and in Public Prosecutor v UI [2008] 4 SLR(R) 500. Bearing in mind that there was another statutory rape offence against V2 taken into consideration, I think that 10 years’ imprisonment and 10 strokes of the cane would be reasonable on the facts of this case.

[36] As for the sexual penetration offences, the victims are within the age group designated by Parliament for special protection by the provision of a higher maximum imprisonment term and even caning. Although the same maximum sentence has been provided as for rape, the cases have consistently regarded rape as being much more serious an intrusion than other forms of penetration. On the facts of this case and in line with recent decisions, I am of the view that a sentence of 12 months’ imprisonment and two strokes of the cane is reasonable for the offence involving finger-vagina penetration and in respect of the offences involving penis-mouth penetration, a sentence of 5 years’ imprisonment and two strokes of the cane would be appropriate.

[37] For the CYPA offences, I think 6 months’ imprisonment for the naked photographs incident in charge 3 and 12 months’ imprisonment for the licking of the vagina incident in charge 21 would be appropriate. For the offence under the Films Act, a fine of $200, in default 1 day’s imprisonment, should suffice.

[38] The sentences imposed were therefore as follows:

[39] The final point to consider is how many and which of the above imprisonment terms ought to run consecutively. The accused argued that there should be no more than two consecutive imprisonment terms while the prosecution argued that at least three imprisonment terms should run consecutively to arrive at the suggested aggregate sentence of between 20 and 22 years’ imprisonment and the maximum of 24 strokes of the cane. It was suggested that the three consecutive sentences should include one for statutory rape, one for penis-mouth penetration and one for the licking of the victim’s vagina. The prosecution’s approach therefore looks at the type of offence or at the legally protected interest that was invaded (as explained in Shouffee).

[40] On the facts here, I think it would be appropriate to have an aggregate sentence that reflects the overall criminality of the accused’s acts as well as the harm caused to each of the four victims. For this purpose, I ordered that the imprisonment terms for charges 1, 2 and 3 to run consecutively with effect from the date of arrest (19 February 2014). These would cover offences against V1, V2 and V3 and add up to an aggregate imprisonment term of 20 years and six months. The accused would be subject to a maximum of 24 strokes of the cane as provided in the Criminal Procedure Code (Cap 68, 2012 Rev Ed). The fine imposed would cover the offence against V4.

[41] The accused has filed a notice of appeal to the Court of Appeal against the sentences imposed.