OC Dev

Introduction

The General Division of the Singapore High Court (“High Court”) has, in Public Prosecutor v GED and other appeals [2022] SGHC 301, laid down the sentencing framework that applies to offences under section 377E(1) of the Penal Code, punishable under s 377BE(3) of the Penal Code (herein referred to as the “Distribution Offence”). Such offences, which took effect on 1 Jan 2020, criminalises the actual distribution of intimate images or recordings of another person without consent.

Background

MA 9280

The offender (“GED”) was married to the victim (“V1”). As GED suspected that V1 was having an extramarital affair, he stole V1’s mobile phone to confirm his suspicion. Upon finding several intimate images, GED uploaded them onto Facebook in which both V1 and her supervisor were readily identifiable and another which blurred V1’s face.

GED pleaded guilty to two charges, one of which was for the offence of distributing an intimate recording under s 377BE(1) punishable under s 377BE(3) of the Penal Code for publishing the Facebook Post. For the Distribution Offence, the District Judge sentenced him to 12 weeks imprisonment.

The Prosecution appealed to the High court against his sentence, on the basis it was manifestly inadequate.

MA 9008

The offender (“GEH”) and his wife were undergoing divorce proceedings at the material time. However, GEH suspected that she was having an extramarital affair and followed her when she boarded a car driven by the victim (“V2”). GEH, joined by two others, eventually confronted and attacked V2. While the attack was ongoing, V2’s pants and underwear were pulled down to expose his genitals. GEH then used V2’s mobile phone without his consent to take a video of V2’s injured face and exposed penis at length while insulting him verbally. GEH proceeded to send the video to more than 500 of V2’s contacts via Whatsapp, including V2’s colleagues and friends.

GEH pleaded guilty to three charges, one of which was for the offence of distributing an intimate recording under s 377BE(1) punishable under s 377BE(3) of the Penal Code for sending the video. For that charge, the District Judge arrived at a sentence of 18 months imprisonment.

Both the offender and the Prosecution appealed to the High court against his sentence, on the basis it was manifestly excessive and inadequate respectively.

The High Court’s Decision

Applicable Sentencing Framework

The High Court laid down the sentencing framework for Distribution Offences and adopted a two-stage, five-step sentencing framework, similar to the approach in Logachev Vladislav v Public Prosecutor [2018] 4 SLR 609:

• Step 1: Identifying the level of harm and the level of culpability
  • The level of harm caused by the offence; and
  • The level of culpability

Factors going towards Harm

Objective aspects of harm	Includes (1) the nature of the image or recording1, (2) the degree of identifiability of the victim, and (3) the nature and extent of the distribution². For example, for nature of the image or recording, if it was a recording of the victim engaged in penetrative sexual intercourse while fully nude and with his or her genitalia exposed, this would generally result in higher degree of objective harm. _________ 1 Entails a consideration of (a) what parts of the victim’s body were shown, and how exposed the body parts were (whether bare or covered); (b) what acts were depicted; and (c) the medium used (whether a still image or a video recording). 2 Entails a consideration of (a) how widely the intimate image or recording was distributed; (b) whether the image or recording was distributed to certain recipients known to the victim; and (c) how long the image or recording was left accessible for.
Subjective aspects of harm	Includes any particular aspects of the victim’s suffering that would shed light on the degree of humiliation, alarm or distress subjectively experienced by the victim as a result of the offence, including any impact on the victim’s mental health.
Other related harm	1. Consequential harm which excludes psychological and emotional impacts, such as loss of employment as a result of the offence. 2. Harm that is caused to the victim to obtain the images. For example, physically injuring the victim.
Other factors related to harm	Apart from what is listed above, factors such as vulnerability of the victim, which may arise if the victim is young, has pre-existing mental health conditions, or has a relationship with the offender, may cause the victim to be more susceptible to being manipulated or taken advantage of.

Factors going towards Culpability

Motive for committing the offence	i) Acting for personal gain: An offender who acts out of self-interest, greed, malice or spite , is likely to be regarded as more culpable. If one committed the act due to fear or pressing financial need, the offender may be considered less at fault (Myint v Public Prosecutor [2019] 5 SLR 1005). ii) Acting with the purpose of causing harm: An offender who acted with the knowledge that the distribution will or is likely to cause the victim humiliation, alarm or distress, and for the purpose of harming the victim and/or acted in a calculative manner to inflict such harm is considered more culpable.
Method of obtaining the intimate image or recording	Three stages: (1) Capture of the image or recording, (2) Possession of it, and (3) Distribution. In all of these three stages, consent of the victim is a major component in determining the level of culpability of the offender. The base case is where the image or recording is captured with the victim’s consent, and the victim also consents to the offender being in possession of the same, but the offender then goes on to distribute the image or recording without the victim’s consent. The offender’s culpability would then be aggravated in cases involving departures from this base case.
Other aspects of culpability	Factors such as: Level of planning, preparation and premeditation; Level of sophistication to obtain and distribute the intimate images or recordings; Duration and persistence of the offending behaviour; Abuse in position; Use of anonymity by the offender

• Step 2 and 3: Indicative sentencing ranges and starting point

Culpability / Harm	Slight	Moderate	Severe
Low	Fine and/or up to 6 months' imprisonment	6 - 15 months' imprisonment	15 - 30 months' imprisonment (with the option of caning)
Medium	6 - 15 months' imprisonment	15 - 30 months' imprisonment (with the option of caning)	30 - 45 months' imprisonment (with the option of caning)
High	15 - 30 months' imprisonment (with the option of caning)	30 - 45 months' imprisonment (with the option of caning)	45 - 60 months' imprisonment (with the option of caning)

• • The court will situate the case within the appropriate cell of the sentencing matrix (see above) and identify the applicable indicative sentencing range. The court will then identify the appropriate starting point within that range, having regard once again to the harm caused by the offence and the offender’s culpability
• Step 4: Offender-specific factors
  • The court will make adjustments to the starting point based on the certain aggravating and mitigating factors relevant to the offender. Aggravating factors include offences taken into consideration for sentencing and an evident lack of remorse, while mitigating factors include an early plea of guilt and co-operating with the authorities.
• Step 5: The totality principle
  • The court will make further adjustments to take into account the one-transaction rule and the totality principle.

Appellant’s Sentence

Applying the new sentencing framework, the High Court meted out the following sentences in relation to the respective distribution offences:-

	Charge	Original sentence	Sentence on appeal
GED	DAC-904516-2021	12 weeks’ imprisonment	18 months’ imprisonment
GEH	DAC-913704-2020	18 months’ imprisonment	33 months’ imprisonment and two strokes of the cane

Concluding Remarks

If convicted of distributing voyeuristic or intimate images/ recordings , you can be sentenced for up to two years imprisonment, or a fine, or caning, or any combination. Where the victim is younger than 14 years old, imprisonment is mandatory. Threats of distributing such images/ recordings are also criminalised. However, the High Court expressly declined to make a determination on whether the new sentencing framework should apply to such threats. It remains to be seen how the court views such threats to distribute in comparison to actual distribution, and how it affects the application of the new sentencing framework. Notably, the High Court observed that the harm and culpability involved in a case of threatened distribution may be similar to, or even greater than, in a case of actual distribution. In other words, neither offence is inherently or invariably more or less serious than the other.

For any queries regarding this case note, or to seek a free consultation with our firm’s specialist criminal defence team for any legal matters, feel free to reach out to us at our firm’s website.

Introduction

The General Division of the Singapore High Court (“High Court”) has, in ABC v Public Prosecutor [2022] SGHC 244, clarified the sentencing framework that applies to sexual offences under section 376(3) and section 376A(3) of the Penal Code after amendments were made to these sections with effect from 2020.

Background

The appellant (28 y/o) met the victim (13 y/o) in early 2020. Parties entered into a relationship, which eventually became sexual in nature. On more than one occasion, the appellant had penetrated the victim’s vagina with his finger(s) with her consent. However, the victim was 13 years old at the material time.

The appellant pleaded guilty before a District Judge to one charge of Sexual Assault by Penetration under section 376(3) of the Penal Code for sexually assaulting a victim under 14. The District Judge applied the sentencing regime under Pram Nair v Public Prosecutor [2017] 2 SLR 1015 (“Pram Nair”) in arriving at a sentence of 6 years and 3 strokes of the cane.

The appellant appealed to the High Court against his sentence on the basis that it was manifestly excessive.

The Issue

The Singapore Court of Appeal previously set out that for offences under section 376, the sentencing regime that applied was that in Pram Nair.

Sentencing Bands under Pram Nair
Band 1	7 – 10 years’ imprisonment; 4 strokes	An offence falls within Band 1 if there are no offence-specific aggravating factors or where the factor(s) are only present to a very limited extent and therefore should have a limited impact on the sentence.
Band 2	10 – 15 years’ imprisonment; 8 strokes	An offence falls within Band 2 if there are 2 or more offence-specific aggravating factors. Cases which contain any of the statutory aggravating factors under s 376(4) will almost invariably fall within Band 2.
Band 3	15 – 20 years’ imprisonment; 12 strokes	An offence falls within Band 3 where the number and intensity of the aggravating factors present an extremely serious case of sexual assault.

However, given that the case of Pram Nair involved sexual assault by penetration of an adult who did not consent and had been decided prior to the amendments to section 376 of the Penal Code under the Criminal Law Reform Act (No. 15 of 2019), it was unclear whether the sentencing regime under Pram Nair applied to offences involving a victim under 14 years old who did consent, even if it was punishable under the same section.

The crux of the issue in the present appeal was whether the sentencing regime under Pram Nair applied to offences under s 376(3) of the Penal Code involving a victim under 14 years old who consented to the sexual penetration. Put differently, the issue was whether consent was a relevant factor in determining the appropriate sentence to be imposed for offences under s 376(3) of the Penal Code.

The High Court’s Decision

Consent of a Minor

The High Court affirmed that the sentencing regime under Pram Nair did apply to offences under s 376(3) of the Penal Code involving a victim under 14 years old who consented to the sexual penetration. The High Court pronounced that whether consent was obtained from a victim under 14 years old is irrelevant, though the lack of consent will aggravate the offence. Accordingly, the lack of consent would necessarily lead to the offender being dealt with under the more serious provision of section 376(4) which carries a mandatory minimum sentence of 8 years’ imprisonment with 12 strokes of the cane.

While the case of Pram Nair was formulated in the context of an adult victim who did not consent, the High Court set out clearly that the same sentencing regime applies also to a case of a victim below the age of 14 who did consent.

The High Court also clarified that the same sentencing regime applies to an offence under sections 376(3) and 376A(3) of the Penal Code.

Appellant’s Sentence

Notwithstanding the High Court’s holding that the District Judge had correctly applied Pram Nair’s sentencing framework in the present case, the High Court nonetheless allowed the appeal and reduced the appellant’s sentence on the basis of the doctrine of prospective overruling.

The High Court found it appropriate to invoke the doctrine of prospective overruling in the present case for the following reasons at [59] to [63]:

1. This was the first instance that the High Court had clarified that the sentencing regime under Pram Nair applies in a case where a victim below the age of 14 who did consent.
2. The High Court found that the approach in past cases were wrong. Past cases did not apply the sentencing regime under Pram Nair. Low sentences (typically less than 4 months) were meted out for past cases involving offences where the victims were under the age of 14 who did consent
3. There was a significant difference between the sentencing position of past cases and the newly pronounced position under the sentencing regime of Pram Nair.

As such, the High Court found that it was appropriate to invoke the doctrine of prospective overruling, allowed the appeal and reduced the appellant’s sentence from six years three strokes to three years no strokes.

Concluding Remarks

For sexual offences (such as rape, sexual assault by penetration, sexual assault involving penetration, and sexual penetration of a minor), the Singapore Courts have increasingly turned to developing and applying sentencing frameworks, as well as the standardisation of sentencing regimes across the board.

This judgment has made clear that the Pram Nair sentencing framework applies not only to offences involving minors under 14 who did consent, but also to minors between 14 and 16 who did not consent, and to victims above 16 (including adult victims) who did not consent.

This is a welcomed clarification, as it promotes consistency in sentencing which, as a key facet of proportionality, is rooted in the right of equal protection of the law to offenders of equal or similar culpability.

As the legislative amendments and certain nuances in the law may not be easily noticed, it can be difficult for the general public to understand whether the sentences being meted out are proportional and justifiable.

For any queries regarding this case note, or to seek a free consultation with our team for any legal matters, feel free to reach out to us at our firm’s website.