The Singapore Law Gazette

A Recalibration of the Sentencing Framework for Rape

Terence Ng Kean Meng v Public Prosecutor: A Recalibration of the Sentencing Framework for Rape

Earlier this year, the Court of Appeal took the opportunity to review the sentencing guidelines laid down in the seminal case of Public Prosecutor v NF [2006] 4 SLR(R) 849. This article explores the difficulties that arose from PP v NF and reviews the new framework for rape offences moving forward.

Introduction

Over the last decade, the sentencing considerations and benchmarks for rape offences have been guided predominantly by the seminal case of Public Prosecutor v NF [2006] 4 SLR(R) 849 (“PP v NF“), where V K Rajah J (as he was then) discussed four broad categories of rape offences and suggested a benchmark sentence for each of them. Earlier this year, the case of Ng Kean Meng Terence v Public Prosecutor [2017] 2 SLR 449 highlighted the practical and conceptual problems that have surfaced over the recent years, in the application of the PP v NF sentencing framework. The Court of Appeal (the “CA”) was presented with a timely opportunity to review the same, and in judgment grounds released on 12 May 2017, has provided clarity on the sentencing framework for rape offences moving forward.

Background Facts

The appellant is 42-year-old Terence Ng Kean Meng (“Terence”), commonly known to residents in the East as the “Commonwealth cobbler”. The complainant was then a 13-year-old girl, whom Terence became acquainted with after she started hanging around his makeshift cobbler stall at Commonwealth MRT station.

Through their interactions, the complainant confided in Terence about her family problems. Terence took it upon himself to look after her and the parties began spending a lot of time together. It was later discovered that over the course of the next few weeks, Terence and the complainant engaged in consensual sex several times. A police report was subsequently filed.

The Offence

Terence faced a total of three charges of statutory rape, an offence punishable under s 375(2) of the Penal Code, and one charge of digital penetration, an offence punishable under s 376A of the Penal Code. On account of Terence’s plea of guilt, the Prosecution proceeded on one charge of statutory rape and one charge of digital penetration, with the remaining two charges being taken into consideration.

At first instance, Terence was sentenced to 13 years’ imprisonment and 12 strokes of the cane for the charge of statutory rape, and one year’s imprisonment and two strokes of the cane for the charge of digital penetration.

In his judgment,¹PP v Ng Kean Meng Terence [2015] SGHC 164 Tay Yong Kwang J (as he was then), used the benchmarks as set out in PP v NF and categorized the offence of statutory rape in the present case as “one between a Category 1 and a Category 2 rape” ²Ibid, at [25]. Dissatisfied with the sentence, Terence appealed against Tay J’s decision.

PP v NF Sentencing Framework

It is apposite at this juncture to set out the sentencing framework established by PP v NF. V K Rajah J (as he was then), sought to bring about a greater degree of consistency and predictability in the sentencing practice of statutory rape offences, after observing a lack of the same in the sentences imposed for rape cases involving vulnerable victims. V K Rajah J further noted that the promulgation of benchmark sentences would serve the aim of general deterrence, by informing would-be offenders of the likely punishment facing them.

The PP v NF framework comprised a two-step categorical approach in first determining the starting point for the sentence, before adjusting the same either upwards or downwards to account for the aggravating and/or mitigating factors present in the case. The starting points are classified into four categories which can be summarised as follows:

Category 1: Category 1 comprises rape offences that fall on the lowest end of the spectrum, featuring no mitigating or aggravating factors. The benchmark sentence, following the case of PP v Frederick Chia, will be 10 years’ imprisonment and 6 strokes of the cane.

Category 2: Category 2 comprises rape offences that have any one of the seven specific aggravating factors listed at [20] of PP v NF. These include, amongst others, where the rape is committed by two or more offenders acting together, where the offender is in a position of responsibility towards the victim, rape of a child or an otherwise vulnerable victim, repeated rape in the course of one attack, and rape by a man who is knowingly suffering from a life-threatening sexually transmittable disease.

The benchmark sentence will be 15 years’ imprisonment and 12 strokes of the cane.

Category 3: Category 3 comprises rape offences that involve the rape of the same victim on multiple occasions or the rape of multiple victims. The benchmark sentence will be 15 years’ imprisonment and 12 strokes of the cane, the same as Category 2.

Category 4: Category 4 comprises rape offences committed by offenders who have demonstrated that they will remain a threat to society for an indefinite period of time. The benchmark sentence will be 20 years’ imprisonment and 24 strokes of the cane.

Problems Arising from the PP v NF Sentencing Framework

PP v NF was a laudable attempt at bringing about much needed guidance and consistency in the sentencing of rape offences. However, it was not without its flaws and in the years after PP v NF, problems began surfacing in the course of Judges’ and/or lawyers’ practical application of the PP v NF framework.

First, it was noted that despite the four (4) distinct categories laid down by V K Rajah J in PP v NF, there were several instances of the Courts classifying rape offences as between categories, instead of within them. It is submitted that this reflected an inherent difficulty in PP v NF’s categorization approach, where the distinct factual matrix of each offence appeared to cause some tension in the court’s attempt to fit it within the specific confines of each category.

For instance, where would the Court place a rape offence that has an aggravating factor, but the said aggravating factor does not fall within the list set out in Category 2? One would observe that such an offence falls beyond the reach of Category 1, yet falls short of the requirements that will escalate it to Category 2.³ This was precisely the case in PP v Sim Wei Liang Benjamin [2015] SGHC 240 and PP v Lee Seow Peng [2016] SGHC 107, where in both instances, notwithstanding that there was sexual abuse of a minor, the court held that the offence fell between Category 1 and 2, after which the court proceeded with the sentencing based on a starting point between that of Category 1 and 2. This lacuna between Category 1 and Category 2 demonstrates one of the inadequacies in the PP v NF framework.

Secondly, the abovementioned difficulty is exacerbated by the lack of conceptual coherence in Category 2. As observed by the CA, there is no conceptual unity or discernable unifying theme to the aggravating factors listed in Category 2, which covered a wide range of situations, not all of which are of equal normative significance.⁴Ng Kean Meng Terence v Public Prosecutor [2017] 2 SLR 449 (“Terence Ng v PP”) at [16] to [22] It is also unclear how the statutory aggravating factors set out in s 375(3) of the Penal Code (which provides a mandatory minimum sentence) ties in with the PP v NF framework and the list of aggravating factors set out in Category 2.

Thirdly, the framework presents opportunities for double-counting of factors in arriving at the final sentence. To this end, one would note that the sentencing benchmarks in Category 2 are determined based on the aggravating and mitigating factors present in the case, before moving on to the second step of considering, again, the existence of any aggravating and mitigating factors.

Lastly, it was uncertain whether the PP v NF framework was envisioned to apply to a claim-trial situation or a plead-guilty situation. This resulted in inconsistencies in the adjustment to the sentences imposed, based on whether the offender had claimed trial or pleaded guilty.

The Revised Sentencing Framework

In view of the difficulties brought about by the PP v NF framework, the CA sought further submissions from parties and Amicus Curiae on whether, and if so, how, the PP v NF framework should be revised.

After considering the submissions, the CA agreed that there was a need to revise the fundamental structure of the PP v NF framework, but declined the invitation to overhaul the framework in its entirety.

The revised sentencing framework put in place by the CA is also a two-step approach, but one modeled after the methodology expounded in the New Zealand Court of Appeal case of R v Taueki.⁵R v Taueki [2005] 3 NZLR 372

First, the Court will identify which band the offence in question falls within, by considering the factors relating to the manner and mode in which the offence was committed, and the harm caused to the victim, otherwise termed as “offence-specific” factors (the “Terence Ng approach”). The Court will then derive a starting point for the sentence based on the offence-specific features, which reflects the intrinsic seriousness of the offending act.

Second, upon determination of this starting point, the Court will have regard to the aggravating and mitigating factors which are personal to the offender to calibrate the appropriate sentence.

The CA also clarified that this revised framework is to be applied to “claim-trial” cases.

Step One: Identification of Sentencing Band

The first step of the Terence Ng approach begins with the identification of the sentencing band in which the offence falls under, based on the offence-specific factors. A non-exhaustive list of factors⁶Terence Ng v PP at [44] to be considered are:

• Group Rape: Offences committed by groups of persons.
• Abuse of position and breach of trust: where the offender is in a position of responsibility towards the victim or in whom the victim has placed her trust by virtue of his office of employment.
• Premeditation
• Violence: Actual or threatened use of violence.
• Vulnerable victim: Whether the victim was especially vulnerable by reason of age, physical frailty, mental impairment or disorder, and/or learning disability.
• Forcible rape of a victim below the age of fourteen.
• Hate crime: Offence was committed as a hate crime, such as an expression of racial prejudice, religious prejudice, or in other situations where the victim has been specifically targeted by reason of her membership of a vulnerable minority group.
• Severe harm: Severe harm inflicted on the victim such as pregnancy, transmission of a serious disease or a psychiatric illness.
• Deliberate infliction of special trauma.

The CA further cautioned against the consideration of (i) forgiveness by the victim; and (ii) consent by a victim under the age of 14 in the assessment of the seriousness of the offence, by reason that these factors are typically irrelevant⁷Terence Ng v PP at [45].

Once the gravity of the offence has been ascertained based on the factors set out above, the court will proceed to place the offence within one of three bands.⁸Terence Ng v PP at [47] to [61]

Band 1:⁹ An example of a case falling into Band 1 is the case of Haliffie bin Mamat v PP [2016] 5 SLR 636. The starting point is 10–13 years’ imprisonment and six strokes of the cane.

Band 1 cases are cases that feature no offence-specific aggravating factors or where such factors are only present to a very limited extent such that it should not have material impact on the sentence.

Where the case features one of the above offence-specific factors, such cases nonetheless fall within Band 1, albeit in the middle to upper ranges of Band 1.

It should also be noted that the CA has specifically prescribed that cases of statutory rape where the victim consents and that there are no further notable aggravating factors will fall within the upper ranges of Band 1. The prescribed starting point for such cases is 12 years’ imprisonment and 6 strokes of the cane.

Band 2:¹⁰ An example of a case falling into the middle to upper range of Band 2 is the case of PP v Mohamed Fadzli bin Abdul Rahim [2008] SGHC 177, while examples of cases falling into the upper end of Band 2 are PP v AOM [2011] 2 SLR 1057 and PP v AHB [2010] SGHC 138. The starting point is 13–17 years’ imprisonment and 12 strokes of the cane.

Band 2 cases are cases deemed to be of a higher level of seriousness than Band 1 cases and would usually contain two or more of the offence-specific aggravating factors.

Offences marked by serious violence, taking place over an extended period of time and had caused the victim serious and long-lasting physical or psychological injuries will bring the offence up to the middle to upper ranges of Band 2.

Where the case contains any of the statutory aggravating factors set out under s 375(3) of the Penal Code, such offences will fall within Band 2.

Band 3:¹¹ Examples of cases falling into Band 3 are the cases of PP v ABJ [2010] 2 SLR 377, PP v Azuar bin Ahmad [2014] SGHC149 and PP v Bala Kuppusamy [2009] SGHC 97 The starting point is 17–20 years’ imprisonment and 18 strokes of the cane.

Band 3 cases are the most serious instances of rape and may potentially attract the maximum sentence under s 375. Such cases often feature victims with “particularly high degrees of vulnerability and/or serious levels of violence attended with perversities”. There is a compelling interest to therefore impose a lengthy sentence, both to deter the offender and to express society’s condemnation of the nature of such offences.

Unlike the PP v NF approach, the sentencing bands in the Terence Ng approach fall under a single continuum as opposed to discrete categories. Once the appropriate band is identified, a further evaluative exercise is carried out to determine where, along the range within the specific band, the offence falls under.

Step Two: Calibration of the Sentence

The second step of the Terence Ng approach is to consider the offender-specific factors, which are factors that relate to the personal circumstance of the offender. Examples of such factors include the character of the offender, personal attributes, expression of remorse etc. These considerations should be particular to the offender and should not relate to the manner and mode of the offence or the harm caused by the offence.

A non-exhaustive list of aggravating and mitigating factors to be considered is as follows:¹²Terence Ng v PP at [64] to [65]

Aggravating Factors	Mitigating Factors
· Offences taken into consideration for the purpose of sentencing, otherwise commonly known as TIC offences · Whether there have been antecedent offence(s) similar to the present offence · Evident lack of remorse	· Display of evident remorse · Youth of the offender and in turn, his rehabilitation · Advanced age of the offender

Mitigating Factor: Plea of Guilt

The CA also took the opportunity to clarify the mitigating impact that a plea of guilt would have on the sentence in relation to sexual offences.

The three reasons justifying the reduction in sentence on account of a plea of guilt are namely, (i) the plea of guilt may demonstrate genuine remorse and/or contrition on the part of the offender; (ii) it spares the victim the ordeal of having to testify in court and thereby saving the victim the horror of having to relive the incident; and (iii) it saves the resources of the State which would have otherwise been expended should the matter proceed to trial.¹³Terence Ng v PP at [66]

The major point of contention in Terence Ng revolved around whether credit still be given for a plea of guilt, in cases where there is compelling evidence against the accused.

The position taken in PP v UI¹⁴Public Prosecutor v UI [2008] 4 SLR(R) 500was that a plea of guilt would be given mitigating value on account of whether it is indicative of genuine remorse. In the arguments put before the CA, however, counsel for the accused had argued that apart from the remorse-based justification, merit had to be given for the utilitarian benefits brought about by a timely plea of guilt.

Citing its decision in the case of Chang Kar Meng v PP,¹⁵Chang Kar Meng v PP [2017] 2 SLR 68 the CA affirmed that the mitigating value of a plea of guilt for sexual offences extended beyond the remorse-based justification to include utilitarian reasons. The CA stated:¹⁶Terence Ng v PP at [69]

We think the principle of the matter is this. The criminal law exists not only to punish and deter undesirable conduct, but also to (a) help the victims of crime; (b) ensure that those suspected of crimes are dealt with fairly, justly and with a minimum of delay; and (c) to achieve its aims in as economical, efficient and effective a manner as possible …

By holding as such, the CA cemented into law that a timely plea of guilt, in the context of sexual offences, would almost invariably entitle an offender a sentencing discount, notwithstanding that such a plea of guilt was not motivated by genuine remorse or contrition. However, the mitigating value of a plea of guilt forms only one of the offender-specific mitigating factors in the Terence Ng approach. To this end, the CA stressed that the one-third discount prescribed in Frederick Chia¹⁷Chia Kim Heng Frederick v Public Prosecutor [1992] 1 SLR(R) 63 was not to be followed. Rather, at the end of the day, the fundamental principle of sentencing is that the punishment imposed must fit both the crime and the offender.¹⁸ The CA expressly observed that whether, and if so, what discount should be accorded to an accused person who pleaded guilty was a fact-sensitive matter that depended on multiple factors. In cases that were especially grave and heinous, the sentencing considerations of retribution, general deterrence and the protection of the public would inevitably assume great importance, and these cannot be significantly displaced merely because the accused had decided to plead guilty. In the present case, the CA held that Terence Ng’s plea of guilt warranted a 10% discount in the sentence.

Subsequent Application of the Terence Ng Approach

The Terence Ng approach has since been applied in the CA case of Pram Nair v Public Prosecutor,¹⁹Pram Nair v Public Prosecutor [2017] SGCA 56 a case involving the offences of rape and digital penetration. In addressing the sentence to be imposed for each of the offence, the CA observed that rape is generally regarded as the gravest of all sexual offences, and that the benchmark sentence for rape (as defined in Terence Ng) and digital penetration should not be equated. However, the Court held that the Terence Ng approach can and should be transposed to the offence of digital penetration, as a large proportion of the offence-specific aggravating factors for rape offences are similarly present in digital penetration offences.

The CA went on to prescribe the following three sentencing bands for sexual penetration offences²⁰Ibid, at [159]:

Band 1: 7 to 10 years’ imprisonment and 4 strokes of the cane;

Band 2: 10 to 15 years’ imprisonment and 8 strokes of the cane; and

Band 3: 15 to 20 years’ imprisonment and 12 strokes of the cane.

Conclusion

While the Terence Ng approach does not effect a radical change in the sentencing benchmark for rape offences, the revised framework has undoubtedly brought about greater clarity as well as timely guidance for sentencing courts to derive the appropriate sentence for each individual offence. Interestingly, the Terence Ng approach appears to have also brought forth a sentencing approach that finds universality in its application.²¹ See Public Prosecutor v BLV [2017] SGHC 154, Pram Nair v Public Prosecutor [2017] SGCA 56, and Public Prosecutor v Low Qiao Hong [2017] SGDC 158, where the Terence Ng approach has been applied beyond rape offences.