SINGAPORE: The Court of Appeal unveiled a new sentencing framework for rape on Friday (May 12), superseding a framework last updated 10 years ago.
The review was triggered by cobbler Terence Ng's appeal against his 13-year jail term and 12 strokes of the cane for raping his 13-year-old goddaughter.
In considering Ng's appeal, Judge of Appeal (JA) Chao Hick Tin said on Friday that the apex court used the opportunity to update the decade-old framework “to ensure it is still valid in light of subsequent developments in the law” and to address “several recurrent problems” with the old framework, which was not “sufficiently comprehensive”.
JA Chao delivered the judgement of the Court of Appeal, which includes Chief Justice Sundaresh Menon and JA Andrew Phang.
The new framework is effective immediately.
The main difference between the old and new frameworks is the switch from classifying rapes according to categories to classifying rapes on a continuum, and doing away with standardised sentences in favour of a sentencing range to better utilise the “full spectrum” of sentences provided for in the law.
OLD FRAMEWORK HAD A "CATEGORISATION PROBLEM"
Under the old framework, laid out in the 2006 case Public Prosecutor v NF, there are four “types”, or categories, of rape:
Category 1: Rapes at the “lowest end of the spectrum”, which “feature no aggravating or mitigating circumstances”.
Benchmark: 10 years’ jail and six strokes of the cane.
Category 2: Rapes that feature an aggravating factor, such as the rape of a vulnerable victim or a group rape.
Benchmark: 15 years’ jail and 12 strokes of the cane.
Category 3: Those which involve the rape of the same victim on multiple occasions or the rape of multiple victims.
Benchmark: 15 years’ jail and 12 strokes of the cane.
Category 4: Those in which the rapist has “manifested perverted or psychopathic tendencies or gross personality disorder … (and if at large), will remain a danger to women for an indefinite time”.
Benchmark: The maximum sentence of 20 years’ jail and 24 strokes of the cane.
While the old framework had brought “a measure of consistency” in the sentences meted out for rape, it suffers from “the categorisation problem”, said JA Chao.
The apex court said categories 1, 3 and 4 are too narrow and apply to “tightly defined pockets of offending”, whereas category 2 “dominates the field”. Most rapes fall within this broadest category.
The problem with this is that category 2 covers too wide a range of circumstances.
JA Chao offered the example of two category 2 rapes with the same aggravating factor: The rape of a child or a vulnerable victim.
“Cases falling within this description can run the gamut from the violent rape of a toddler on the one hand to the rape of a domestic helper by her employer on the other,” JA Chao said.
“The latter, while undoubtedly serious, cannot be compared with the former.”
Evidently, the gravity of cases which fall within category 2 can vary greatly, and it is not ideal that all should warrant the same starting point, the apex court said.
The new framework aims to remedy this, doing away with benchmark sentences and discrete categories in favour of flexible sentencing bands, and classifying rapes on “a continuum of seriousness”:
Band 1: Rapes at the “lower end” of the spectrum of seriousness, no or limited offence-specific aggravating factors.
Range: 10 – 13 years’ jail and six strokes of the cane.
Band 2: Rapes of a “higher level of seriousness”, usually contain two or more offence-specific aggravating factors.
Range: 13 – 17 years’ jail and 12 strokes of the cane.
Band 3: “Extremely serious” cases of rape, “by reason of the number and intensity of the aggravating factors”.
Range: 17 – 20 years’ jail and 18 strokes of the cane.
“These sentencing bands represent different sections along a single continuum of seriousness and no longer … deal only with discrete pockets of offending,” JA Chao explained.
Rapes should be categorised based on “offence-specific” factors which relate to the “manner and mode” by which the rape was committed, the court said.
For example, the presence of more than one of these aggravating factors will usually place the rape within band 2: Group rape, abuse of position and breach of trust, violence, rape of a vulnerable victim, and hate crime, to name a few.
Then, to calibrate the offender’s sentence, the court should consider “offender-specific” factors which relate to an offender’s “personal circumstances”, JA Chao said, including whether the rapist faces other charges, has similar antecedents and whether he is remorseful (or not).
NG’S SENTENCE UPHELD
Turning to the case of Terence Ng, JA Chao pointed out two aggravating factors: The vulnerability of the victim – a runaway 13-year-old schoolgirl – and the abuse of trust by Ng, who was her godfather.
Ng, 42, met the girl in 2013, when he noticed her loitering around his makeshift stall at Commonwealth MRT station. He struck up a conversation with her and learned that she had run away from home. He invited her to his flat, called her mother and offered to look after her as her “godfather”. Her mother agreed.
They had sex about two weeks later, at Ng’s behest.
He pleaded guilty to one count each of statutory rape and digital penetration of a minor, for which he was sentenced to 14 years’ jail and 14 strokes of the cane. Ng appealed only against the 13-year jail term and 12 strokes he received for the rape charge.
Applying the new framework, the apex court said the rape falls in the lower end of band 2. JA Chao said the fact that Ng had another two charges of rape, which had been considered during sentence, counts against him.
But a mitigating factor in Ng’s favour is his plea of guilt, which spared the minor from testifying in court. However, the apex court ruled to uphold Ng’s sentence, saying the aggravating and mitigating factors, “considered holistically … cancel each other out”.