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) |
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- 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.
The imposition of caning is presumptive for certain situations
In relation to the imposing of caning, the High Court opined that caning will presumptively be warranted in certain situations, and highlighted two examples:-
- Where images or recordings of bare skin in intimate regions of the victim’s body are captured; and
- Where the offender widely disseminates images or recordings depicting the victim’s bare skin in such intimate regions or the victim engaging in a sexual act, and where the victim is identifiable/ identified.
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.
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