Sentence of sex offender almost halved following appeal as High Court clarifies law

SINGAPORE: The High Court has reduced the sentence of a sex offender from six years and three strokes of the cane to three-and-a-half years' jail with no caning after he successfully appealed.

In a judgment released on Thursday (Sep 29), Chief Justice Sundaresh Menon clarified several complexities in the case and said the framework for specific sex cases has not been correctly applied so far.

The appellant, who was not named, was sentenced by a district court after pleading guilty to one count of sexual assault by penetration of a minor below 14, with six other charges taken into consideration.

He was 28 when he volunteered as a facilitator for children's classes at a religious organisation. 

He met the victim in early 2020 when she picked her siblings up from the classes. The appellant began a relationship with the victim when she started volunteering at the same organisation.

They would meet at a shopping centre and talk, kiss and hug at a staircase landing. The appellant began touching the victim and sexually assaulted her when he knew she was between 13 and 14 years old. He also asked her for nude videos and was arrested after the victim's mother checked her phone.

DEFENCE'S ARGUMENTS FOR LOWER SENTENCE

The appellant's lawyers, Mark Yeo and Chloe Chen of Kalco Law, argued that the sentence imposed was manifestly excessive. They said that the Pram Nair framework - a legal framework for sex cases - did not contemplate the situation of consensual penetrative sexual activity.

The case of Pram Nair was decided prior to amendments to the law in 2019, where a charge under sexual assault by penetration could be brought only if there was no consent. 

The lawyers argued that consent has "generally been seen as a significant mitigating factor" in such cases, and said that the Pram Nair framework should be modified or redeveloped when dealing with sexual assault by penetration of a minor under 14 with consent. 

The defence argued that prospective overruling should be invoked in this case, and that the appellant should be sentenced based on the previous sentencing regime as the Pram Nair framework has not generally been applied in cases of sexual assault by penetration of a minor under 14 with consent.

THE COURT'S DECISION

The Chief Justice analysed the law both before and after the 2019 amendments, laying out the new prescribed punishments in tables. He said that consent is irrelevant for establishing liability under sexual assault by penetration.

"Although where there is no consent, the mandatory minimum punishment will apply," he said. "The absence of consent is therefore an aggravating factor. But the fact that such a victim under the age of 14 may have consented is otherwise irrelevant and it is not correct to see consent in this context as a mitigating factor."

He said Parliament has made it clear that in the case of a victim below the age of 14, consent is irrelevant, although the lack of consent will aggravate the offence.

Chief Justice Menon said that the 2019 amendments brought about "no substantive change" that is material to this case.

However, he noted that this is the first case concerning a victim below the age of 14 who consented to acts of sexual assault by penetration that was prosecuted under Section 376 after the 2019 amendments. Therefore, he found it important to clarify the sentencing framework.

The Chief Justice said that 61 cases for the relevant section of sexual penetration of a minor below 16 have been prosecuted since 2001. Of these, 46 cases resulted in sentences of four years or less, and caning was imposed in only seven cases.

Ten cases resulted in sentences of between four and eight years, and only five cases resulted in sentences of more than nine years.

After Pram Nair, there were 49 such cases, and the sentences imposed in 39 of these were jail terms of four years or less. Caning was imposed in only three cases.

Chief Justice Menon said that the sentences in general fall "far short" of the Pram Nair framework, which suggests that the framework has not generally been applied in cases where a victim is under the age of 14 but consents.

Another suggestion is that sentencing in these cases had proceeded on the basis that consent was regarded as a significant mitigating factor, but the Chief Justice stressed that this was a mistaken approach to sentencing which has worked to the benefit of offenders.

"While there are limitations to the (data) search, the results paint the clear picture that Pram Nair has not been correctly applied to (such) cases, if it has been applied at all," said Chief Justice Menon.

As a result, there is a "gross discrepancy" between the appellant's sentence and sentences imposed in previous similar cases. The Chief Justice then invoked the doctrine of prospective overruling.

In prospective overruling, a court may in an exceptional case state that clarified guidelines come into effect from a specific date. In such a case, the guidelines would apply to all offenders sentenced after the date of the decision, but it would not apply to the actual offender in the decision.

In other words, the Pram Nair framework should be applied correctly henceforth, but the appellant in this case will be exempt.

Chief Justice Menon said there would be "serious and demonstrable injustice" if the appellant's sentence of six years' jail and three strokes of the cane was maintained.

"As I have explained, the overwhelming majority of (similar) cases resulted in sentences below four years' imprisonment with no caning," he said.

He concluded that future cases should be dealt with by applying the Pram Nair framework.