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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.

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.

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