1 Three accused persons, Mr Ridhaudin Ridhwan bin Bakri (“Ridhwan”), Mr Muhammad Faris bin Ramlee (“Faris”) and Mr Asep Ardiansyah (“Asep”) were tried before me for a number of sexual offences committed against a female Singaporean (“the Complainant”) on 26 January 2014 in Room 310 of a hotel formerly located along Duxton Road, Singapore (“the Duxton Hotel”). The Duxton Hotel has since been torn down. At the time, the Complainant was 18 years of age, while each of the three accused persons was 20 years of age.

2 Ridhwan, the first accused person, faced three charges:

(a)  One charge of sexual assault by penetration under s 376(2)(a) punishable under s 376(3) of the Penal Code (Cap 224, 2008 Rev Ed) (“the Penal Code”) (“the 1st Charge”);

(b) One charge of rape under s 375(1)(a) punishable under s 375(2) of the Penal Code (“the 2nd Charge); and

(c) One charge of using criminal force to outrage the modesty of the Complainant punishable under s 354(1) of the Penal Code (“the 3rd Charge”).

3 Faris, the second accused person, faced two charges:

(a) One charge of rape under s 375(1)(a) punishable under s 375(2) of the Penal Code (“the 4th Charge”); and

(b) One charge of sexual assault by penetration under s 376(2)(a) punishable under s 376(3) of the Penal Code (“the 5th Charge”).

4 Asep, the third accused person, faced two charges:

(a) One charge of sexual assault by penetration under s 376(1)(a) punishable under s 376(3) of the Penal Code (“the 6th Charge”); and

(b) One charge of attempted rape under s 375(1)(a) punishable under s 375(2) read with s 511 of the Penal Code (“the 7th Charge”).

5 On 23 April 2019:

(a) I convicted Ridhwan on the 1st, 2nd and 3rd Charges;

(b) I convicted Faris on the 4th Charge and acquitted him on the 5th Charge; and

(c) I convicted Asep on the 6th and 7th Charges.

6 The circumstances as to how the three accused persons committed the offences are set out in my judgment dated 23 April 2019 (Public Prosecutor v Ridhaudin Ridhwan bin Bakri and others [2019] SGHC 105).

7 The Prosecution submitted that the rape offences (ie, the 2nd and 4th Charges against Ridhwan and Faris respectively) fell within Band 2 of the sentencing framework set out by the Court of Appeal in Ng Kean Meng Terence v Public Prosecutor [2017] 2 SLR 449 (“Terence Ng”). Applying the Terence Ng framework, the appropriate sentence would be 15 years’ imprisonment and 12 strokes of the cane. ¹

8 The Defence did not dispute that the Terence Ng framework was applicable in the present case for the rape offences but disagreed with the Prosecution as to which band Ridhwan’s and Faris’ actions fell within. Both Ridhwan and Faris argued that the appropriate sentencing band was Band 1, with Ridhwan submitting a sentence of 12 years’ imprisonment and six strokes of the cane and Faris submitting a sentence of 11 years’ imprisonment and six strokes of the cane. ²

9 Turning to the sexual assault by penetration offences, the Prosecution submitted that the sentencing framework set out by the Court of Appeal in Pram Nair v Public Prosecutor [2017] 2 SLR 1015 (“Pram Nair”), which applies to digital-vaginal penetration, could be adapted to the 1st Charge against Ridhwan ³ (for digital-anal penetration) and the 6th Charge against Asep (for fellatio). ⁴ The Prosecution took the same position that the offences fell within Band 2, submitting a sentence of 12 years’ imprisonment and eight strokes of the cane for the 1st Charge (digital-anal penetration) and 13 years’ imprisonment and eight strokes of the cane for the 6th Charge (fellatio).

10 For the 1st Charge (digital-anal penetration), the Defence took the position that Ridhwan’s actions fell within Band 1, submitting a sentence of less than eight years’ imprisonment and four strokes of the cane. ⁵

11 For the 6th Charge (fellatio), the Defence submitted that the Pram Nair framework was of limited application in the present case. Referring to the case of Public Prosecutor v Chua Hock Leong [2018] SGCA 32 (“Chua Hock Leong”), the Defence argued for a sentence of not more than ten years’ and six months’ imprisonment and six strokes of the cane for the 6th Charge. ⁶

12 For the 3rd Charge against Ridhwan for outrage of modesty, the Prosecution submitted that I should apply the sentencing framework in Kunasekaran s/o Kalimuthu Somasundara v Public Prosecutor [2018] 4 SLR 580 (“Kunasekaran”). The Prosecution submitted that Ridhwan’s actions fell within Band 2 of the Kunasekaran framework and that an appropriate sentence would be 12 months’ imprisonment and three strokes of the cane. ⁷

13 The Defence argued for a sentence of around eight months’ imprisonment on the basis that Ridhwan’s conduct was less aggravated than that of the accused in Kunasekaran. ⁸

14 Finally, for the 7th Charge against Asep for attempted rape, the Prosecution submitted that the Terence Ng framework could be adapted by halving the sentences in each band, relying on the case of Public Prosecutor v Udhayakumar Dhakshinamoorthy (Criminal Case No 43 of 2018) (“Udhayakumar”). Similar to the position it took with regard to Ridhwan and Faris’ rape charges, the Prosecution submitted that Asep’s conduct fell within Band 2, and that a sentence of seven and a half years’ imprisonment and six strokes of the cane should be imposed. ⁹

15 The Defence referred to the case of Ng Jun Xian v Public Prosecutor [2017] 3 SLR 933, submitting that a sentence of four years’ imprisonment and four strokes of the cane was appropriate. ¹⁰

16 The following table summarises the sentencing positions taken by the parties:

17 The Prosecution submitted that in Ridhwan’s case, the sentences for the 2nd and 3rd Charges should run consecutively, giving an aggregate sentence of 16 years’ imprisonment and 23 strokes of the cane. ¹¹ With respect to Asep, the Prosecution’s position was that both sentences for the 6th and 7th Charges should run concurrently, giving an aggregate sentence of 13 years’ imprisonment and 14 strokes of the cane. ¹²

18 The Defence similarly submitted that the sentences for the 2nd and 3rd Charges in Ridhwan’s case should run consecutively, giving an aggregate sentence of 12 years’ imprisonment and ten strokes of the cane. ¹³ The Defence also took the position that the sentences for the 6th and 7th Charges should run concurrently, giving an aggregate sentence of not more than ten years’ imprisonment and ten strokes of the cane.

19 Both the Prosecution and Defence did not dispute that the sentencing framework set out by the Court of Appeal in Terence Ng applied but differed over its application to the facts of the case.

20 The sentencing framework was summarised by the Court of Appeal in Terence Ng at [73] as follows:

21 The Prosecution’s position was that both the 2nd and 4th Charges against Ridhwan and Faris respectively fell in the middle of Band 2 as there were two offence-specific aggravating factors, namely the Complainant’s vulnerability due to intoxication and the severe harm that she suffered. ¹⁴

22 The Defence disagreed with the Prosecution’s position that the Complainant had suffered severe harm, submitting that Ridhwan and Faris’ actions fell within Band 1 as the only aggravating factor was the Complainant’s vulnerability. ¹⁵

23 I disagreed with the Prosecution’s submission that the harm caused to the Complainant was an offence-specific aggravating factor. In Public Prosecutor v BMR [2019] 3 SLR 270 at [32], I mentioned that physical and emotional harm caused to a victim of rape would have to be especially serious to amount to an aggravating factor under the Terence Ng framework. The indelible physical and emotional effects of rape on victims are already reflected by the fact that it is a serious offence. In the absence of especially serious physical or emotional harm, harm caused to victims should not be regarded as an offence-specific aggravating factor as to do so would give this factor double weight.

24 Although I recognised that the Complainant undoubtedly suffered both physical and emotional harm as a result of the acts of the accused, I did not think that such harm rose to the level of an offence-specific aggravating factor under the Terence Ng framework. One of the main factors relied on by the Prosecution was that there was some suggestion that the Complainant suffered from Post-traumatic Stress Disorder (“PTSD”). ¹⁶ This was based on the report and testimony of Dr Cai Yiming (“Dr Cai”), a psychiatrist who examined the Complainant some four months after the offences were committed to determine if she was fit to testify in court.

25 The conclusion reached in Dr Cai’s report was that the Complainant “had signs and symptoms suggestive [of PTSD]”. ¹⁷ In oral evidence, he explained that although the word “suggestive” was used in his report, it was “quite clear in [his] mind this [was] a PTSD”. ¹⁸

26 It is important to bear in mind that Dr Cai’s report was not prepared for the purposes of sentencing, but rather to address the question of whether the Complainant was fit to testify in Court. There was no formal diagnosis of PTSD in his report, nor was there any elaboration on the specific signs and symptoms suggestive of PTSD observed in the Complainant. ¹⁹ Further, when the Prosecution enquired about the impact of the offences on the Complainant during her own examination-in-chief and re-examination, she did not mention PTSD or any steps being taken to manage it. ²⁰ There was also no reference to PTSD or any steps being taken to manage it in the Complainant’s victim impact statement tendered to the Court for the purposes of sentencing. ²¹ In the circumstances, I was of the view that there was no firm evidential basis to conclude that the Complainant was suffering from PTSD (see Public Prosecutor v Ong Soon Heng [2018] SGHC 58 at [155]).

27 In my view, the facts of the present case were analogous to those in Pram Nair, where the accused met the victim at a party and bought her some drinks without specifically intending to get her drunk. When the victim subsequently became inebriated, the accused took advantage of the opportunity to sexually assault her. On appeal, the Court of Appeal was of the view that the only offence-specific aggravating factor was that of taking advantage of a vulnerable victim. Applying the Terence Ng framework, the accused’s conduct in raping the victim fell within Band 1 with an indicative sentence of 12 or 13 years’ imprisonment and six strokes of the cane (Pram Nair at [140]).

28 Similar to Pram Nair, the single offence-specific aggravating factor was that Ridhwan and Faris took advantage of the Complainant’s vulnerability. This placed the offences in the middle to upper range of Band 1 with an indicative sentence of 12 or 13 years’ imprisonment and six strokes of the cane.

29 The second stage of the Terence Ng framework required a consideration of both aggravating and mitigating factors personal to the offender.

30 Ridhwan and Faris raised two common mitigating factors: (a) the fact that they were both 20 years’ old at the time of the commission of the offences; and (b) their lack of prior antecedents. ²²

31 Specific to Ridhwan, I was urged to take into account an additional two mitigating factors: (a) the fact that he had spent the last six years building a family and had two children to take care of; and (b) the fact that he had been suffering from depression since 2012. ²³

32 In Faris’ case, two additional mitigating factors were raised: (a) remorse; and (b) prejudice arising from the fact that Faris was being sentenced five years after the commission of the offences. ²⁴

33 Dealing first with the mitigating factors unique to Faris and to Ridhwan, I did not accept that they should be given any weight.

34 In Ridhwan’s case, the fact that an accused person’s family might suffer hardship from his or her imprisonment should usually not be taken into account in sentencing: Lai Oei Mui Jenny v Public Prosecutor [1993] 2 SLR(R) 406 at [11]–[12]. As for the submission that Ridhwan had been suffering from depression since 2012, no evidence was tendered to support this claim and I placed no weight on it.

35 As for Faris’ submission that he was remorseful, this was a bare assertion without any elaboration and I placed no weight on it.

36 Faris’ argument on possible prejudice arising from the five-year period between the commission of the offence and sentencing was more nuanced. As I understood it, Faris’ point was that this delay prevented him from being sentenced under the framework in Public Prosecutor v NF [2006] 4 SLR(R) 849 (“PP v NF”), which was the sentencing framework adopted at the time the offence was committed and before the Terence Ng framework. To my mind, the fact that the applicable sentencing framework changed between the date of offence and sentencing would not ordinarily constitute a mitigating factor. In fact, the issue of prospective overruling was expressly canvassed in Terence Ng and rejected by the Court of Appeal (at [74]):

37 It is clear from the Court of Appeal’s judgment that it intended for the Terence Ng framework to apply retroactively. Even if the doctrine of prospective overruling were invoked in Terence Ng, the PP v NF framework would not have applied to Faris as he was sentenced after the date on which the Terence Ng framework was promulgated: Adri Anton Kalangie v Public Prosecutor [2018] 2 SLR 557 at [71(b)]. Thus, any delay preventing Faris from being sentenced under the PP v NF framework did not constitute a mitigating factor.

38 I now turn to the common mitigating factors raised by Ridhwan and Faris (ie, their youth and lack of prior antecedents).

39 I was of the view that on the facts of the case, Ridhwan and Faris’ youth and lack of prior antecedents were only neutral factors.

40 The Prosecution seemed to accept that the young age of Ridhwan and Faris (ie, below 21 years of age) was an offender specific mitigating factor although the Prosecution argued that this was outweighed by other factors. ²⁵

41 I first address the issue of youth. The Defence mentioned the young age of Ridhwan and Faris as a mitigating factor, but did not elaborate on this point or cite any precedents to support the argument.

42 I considered some cases dealing with the relevance of an offender’s youth in sentencing.

43 In Public Prosecutor v Mohammad Al-Ansari bin Basri [2008] 1 SLR(R) 449 (“Ansari”), the High Court said at [28] that where the accused person is a young offender who has committed a serious offence, the principles of rehabilitation and deterrence must form the prime focus of the court’s attention. That was said in the context of an accused person who was apparently below 21 and was charged for committing robbery with accomplices. Another charge of intentionally using criminal force on the victim was taken into consideration. The court was considering whether to sentence him to probation or reformative training.

44 In Public Prosecutor v Wang Jian Bin [2011] SGHC 212, the High Court mentioned that it had taken into consideration the youth of the accused person, who was 23 at the time of the offence. However, in the totality of the circumstances pertaining to the rape of a girl under 14 years of age and taking into account two other serious charges, the court was of the view that a custodial sentence of 13 years was nonetheless warranted.

45 In Haliffie bin Mamat v Public Prosecutor and other appeals [2016] 5 SLR 636, the accused was apparently around 23 years of age at the time of the commission of rape and robbery. The Court of Appeal mentioned at [82] that the accused’s relative young age was a mitigating factor. It appears that the Prosecution there accepted that this was a mitigating factor.

46 In Pram Nair, the accused was 23 years of age at the time of the offences but no discount was given for his relative youth (see Pram Nair at [140]).

47 In A Karthik v Public Prosecutor [2018] 5 SLR 1289 (“Karthik”), the accused was charged with two counts of abetting by conspiracy the cheating of two motor insurance companies. At the time of the commission of the offences, he was 17 years of age. By the time he pleaded guilty to the charge, with the other being taken into consideration, and was sentenced, he was 22 years of age. In the High Court, Chief Justice Sundaresh Menon mentioned at [36] that rehabilitation should be the dominant sentencing consideration when dealing with youthful offenders. This was for two reasons, which Menon CJ referred to as the retrospective rationale and prospective rationale (at [37]). Menon CJ acknowledged at [45] that where the accused was below 21 at the time of the offence but above 21 at the time of the sentence, the prospective rationale would not apply as strongly, if at all, while the retrospective rationale would continue to be relevant. On the exceptional factors before the court, the court sentenced the accused to probation.

48 In the present case, Ridhwan and Faris were 20 years of age at the time of the commission of the offences on 26 January 2014. At the time of sentencing in August 2019, they were about 25 years of age. This meant that the prospective rationale identified by Menon CJ in Karthik did not apply to them as strongly. Bearing in mind the gravity of the offences and the fact that Ridhwan and Faris were just under 21 years of age at the time of the commission of the offences, I did not think that the retrospective rationale or their youth was a mitigating factor.

49 As for the lack of prior antecedents, I did not think that this constituted a mitigating factor due to the gravity of the offences committed by Ridhwan and Faris.

50 The authorities are not consistent as to whether the lack of prior antecedents is a mitigating factor in the case of serious sexual offences. In Pram Nair, the Court of Appeal at [140] agreed with the trial Judge’s view that there were no significant mitigating factors even though the accused person in that case had no prior antecedents (see Public Prosecutor v Pram Nair [2016] 5 SLR 1169 at [48]–[49]).

51 In contrast, the Court of Appeal in Haliffie at [82(b)] took the view that the accused person’s lack of prior antecedents was a mitigating factor.

52 It appeared to me that whether an accused person’s lack of prior antecedents was a mitigating factor depended on the unique facts of each case. Here, I was satisfied that given the serious sexual offences committed on a vulnerable victim, Ridhwan and Faris’ lack of prior antecedents should not be regarded as a mitigating factor.

53 Turning to the offender-specific aggravating factors, the Prosecution raised several aggravating factors, which it contended outweighed any mitigating value arising from Ridhwan and Faris’ youth and lack of antecedents: ²⁶

(a) First, Ridhwan and Faris “cruelly exploited the [Complainant’s] intoxicated state…thereby causing her severe harm…”

(b) Second, Ridhwan and Faris displayed no remorse, with Ridhwan’s counsel specifically subjecting the Complainant to a degrading line of cross-examination during the trial.

(c) Third, specific to Ridhwan, his commission of a total of three offences (ie, the 1st, 2nd and 3rd Charges) against the Complainant.

54 I did not agree with the Prosecution that these were valid aggravating factors.

55 First, the Prosecution’s argument conflated the two steps of the Terence Ng framework. The fact that Ridhwan and Faris committed the offence against a vulnerable victim was already accounted for in the first stage as an offence-specific aggravating factor. To take this into account at the second stage would result in the same factor being giving double weight.

56 Second, the Prosecution provided no reasons to support its argument that Faris had demonstrated no remorse. It appeared that the Prosecution’s contention was that Faris’ decision to claim trial constituted an aggravating factor. This could not have been correct. An accused person is entitled to claim trial and his decision to do so cannot constitute an aggravating factor. While the decision to plead guilty may in certain circumstances have mitigating value, the absence of a mitigating factor could not constitute an aggravating factor.

57 As for Ridhwan, I did not think that the conduct of his counsel during cross-examination of the Complainant went so far as to show an evident lack of remorse. It is clear from the Court of Appeal’s decision in Terence Ng that a relatively high threshold must be met for this to be an offender-specific aggravating factor, such as where the accused conducts his defence in an extravagant and unnecessary manner or makes scandalous allegations in respect of the victim (Terence Ng at [64(c)]).

58 Third, I did not think that the mere fact that an accused had committed multiple offences in the course of a single transaction necessarily amounted to an aggravating factor leading to an enhancement of the individual sentence. In the case of Ridhwan, two of the three sentences would run consecutively as provided under the law. Bearing in mind the totality principle, I saw no reason to enhance the individual sentences.

59 Given the absence of any significant mitigating or aggravating offender-specific factors, I was of the view that an appropriate sentence would be 12 years’ imprisonment and six strokes of the cane for both the 2nd and 4th Charges.

60 I would add that the Prosecution also submitted that the sentence for both the 2nd and 4th Charges ought to be higher than those meted out to Muhammad Fadly Bin Abdull Wahab (“Fadly”). ²⁷ Fadly was sentenced separately to 13 years’ imprisonment and eight strokes of the cane after pleading guilty to raping the Complainant on the night of 25 January 2014 prior to the offences committed by the three accused persons in this case (See Public Prosecutor v Muhammad Fadly Bin Abdull Wahab [2016] SGHC 160).

61 I did not agree that the sentence for the 2nd and 4th Charges should be higher. I was of the view that Fadly was more culpable than Faris and Ridhwan as he was the person who had deliberately gotten the Complainant drunk prior to raping her. This additional element of premeditation would have placed Fadly’s acts in Band 2 of the Terence Ng framework, with an indicative sentence of 13–17 years’ imprisonment and 12 strokes of the cane. Even after considering the fact that Fadly had pleaded guilty, I did not see any basis for the Prosecution’s submission that the sentences for the 2nd and 4th Charges ought to be higher than what was imposed on Fadly.

62 I now turn to the two sexual assault by penetration charges which consisted of the 1st Charge (digital-anal penetration) against Ridhwan and the 6th Charge (fellatio) against Asep.

63 The Prosecution submitted that the sentencing framework set out in Pram Nair could be adopted with minor adjustments to be applied to digital-anal penetration and fellatio offences. ²⁸ The Court of Appeal’s decision in Pram Nair transposed the Terence Ng framework to offences of digital-vaginal penetration, with the sentencing bands adjusted downward to reflect the fact that rape is the most serious form of sexual offence and should generally attract a higher starting sentence (Pram Nair at [156]). The framework in Pram Nair for digital-vaginal penetration is as follows (Pram Nair at [159]):

64 For the 1st Charge (digital-anal penetration), the Prosecution referred to the case of Public Prosecutor v BPH (Criminal Case No 90 of 2017) (“BPH”), ²⁹ where Pang Khang Chau JC (as he then was) applied the Pram Nair framework to digital-anal penetration, but moderated the indicative imprisonment sentences in each sentencing band downward by a year (Band 2 offences would attract an indicative sentence of nine to 14 years’ imprisonment, rather than ten to 15 years’ imprisonment under the Pram Nair framework). This was based on the observation of Tay Yong Kwang J (as he then was) in Public Prosecutor v BMD [2013] SGHC 235 (“BMD”) at [73] that digital-anal penetration was the least severe of the penetration offences. ³⁰

65 For the 6th Charge (fellatio) against Asep, the Prosecution’s submission was that the Pram Nair framework could be adopted with an uplift to reflect the relative severity of fellatio. This was again based on Tay J’s comments in BMD at [73] that fellatio was more serious than digital-anal penetration. The Prosecution submitted that Band 2 for fellatio offences would have an indicative sentencing range of 11 to 16 years’ imprisonment.

66 Similar to its position in respect of the rape charges, the Prosecution submitted that Ridhwan’s conduct in relation to the 1st Charge (digital-anal penetration) and Asep’s conduct in relation to the 6th Charge (fellatio) fell within Band 2 of the Pram Nair framework with the advocated amendments (see [63]–[65] above). The Prosecution submitted a sentence of 12 years’ imprisonment and eight strokes of the cane for the 1st Charge (digital-anal penetration) and a sentence of 13 years’ imprisonment and eight strokes of the cane for the 6th Charge (fellatio). ³¹

67 The Defence argued that Ridhwan’s conduct in relation to the 1st Charge (digital-anal penetration) fell within Band 1 of the Pram Nair framework and that a sentence of less than eight years’ imprisonment and four strokes of the cane would be appropriate. ³²

68 For the 6th Charge (fellatio), the Defence suggested that the Pram Nair framework was of limited application in the present case as the Court of Appeal in Chua Hock Leong declined to comment on the applicability of the Pram Nair framework to fellatio offences and instead based its decision on first principles. ³³ The Defence took the position that the sentence should be lower than the ten years’ imprisonment and six months of the cane which the accused in Chua Hock Leong received as Asep’s actions were less culpable.

69 Dealing first with the 1st Charge (digital-anal penetration), I did not agree with the Prosecution that the Pram Nair framework should be calibrated downward because digital-anal penetration was the least severe form of the penetration offences. A careful perusal of the decision in BMD makes it clear that Tay J’s comments did not state that digital-anal penetration was less severe than digital-vaginal penetration. Rather, his comments sought to compare digital-anal penetration specifically against penile-vaginal penetration, fellatio and penile-anal penetration.

70 I was of the view that there was no valid reason to draw any distinction between digital-anal and digital-vaginal penetration as both acts involve a similar violation of the victim’s bodily integrity. I was thus of the view that the Pram Nair framework should be applied to digital-anal penetration without modification.

71 I also understood that in BPH v Public Prosecutor (Criminal Appeal No 29 of 2018), the Court of Appeal expressed the view that there was no material distinction between digital-vaginal and digital-anal penetration in terms of the severity of each offence. While the Court of Appeal indicated that written grounds for that case would eventually be issued, they were not available as of the date of my sentencing decision in these proceedings.

72 I have already set out my reasons (see [21]–[28] above) for disagreeing with the Prosecution’s submissions that the physical and emotional harm caused to the Complainant was an offence-specific aggravating factor (this also applies to the 6th Charge below). At the first stage of the Pram Nair framework, Ridhwan’s actions thus fell in the middle to upper range of Band 1, with an indicative sentence of eight to nine years’ imprisonment and four strokes of the cane. Since there were no aggravating or mitigating factors to be taken into account at the second stage of the Pram Nair framework (see [30]–[58] above), I was of the view that an appropriate sentence for the 1st Charge would be eight years’ imprisonment and four strokes of the cane (digital-anal penetration).

73 Turning to the 6th Charge (fellatio), I disagreed with the Defence’s suggestion that the Pram Nair framework was inapplicable to fellatio offences following the Court of Appeal’s decision in Chua Hock Leong. The Court of Appeal did not rule out the applicability of the benchmarks laid down in Pram Nair to fellatio offences, but rather mentioned that it did not find the case to be an appropriate one to deal with the issue (Chua Hock Leong at [10]).

74 However, I also found the Prosecution’s submission, that the sentencing bands in Pram Nair should be adjusted upward to reflect the relative severity of fellatio offences, not entirely consistent with other High Court decisions on the same issue.

75 In Public Prosecutor v Tan Meng Soon Bernard [2019] 3 SLR 1146 (“Bernard Tan”), Valerie Thean J considered the applicability of the Pram Nair framework to fellatio offences and concluded that the sentencing bands in Pram Nair were a useful point of reference and that it was unnecessary to recalibrate the sentencing bands for different sexual penetration offences (Bernard Tan at [36]). After considering the post-2008 amendments to the Penal Code, which grouped various types of non-consensual sexual penetration together and prescribed a single sentencing range in s 376 of the Penal Code, Thean J opined that it may be less practical to have multiple sentencing frameworks for different sexual penetration offences within s 376 of the Penal Code, and that it might be more useful to recognise the Pram Nair bands as broadly applicable (Bernard Tan at [25]–[27], [31]). The seriousness of a particular sexual penetration offence was a factor which could be considered as part of the offence-specific aggravating and mitigating factors in a case, with “the harm, and therefore the sentence, in each case, [depending] on the full context, of which the specific sexual act [was] only one aspect” (Bernard Tan at [30]).

76 Thean J’s decision in Bernard Tan was cited with approval by Hoo Sheau Peng J in Public Prosecutor v BVZ [2019] SGHC 83 (“BVZ”) (at [52]). The accused in BVZ had, amongst other things, committed fellatio offences against one of the victims in the case. Hoo J agreed with the view of Thean J in Bernard Tan and proceeded to apply the Pram Nair framework to the fellatio offences. However, Hoo J found that the humiliating nature of forced fellatio and the risk of the victim contracting sexually transmitted diseases were offence-specific aggravating factor at the first stage of the Pram Nair framework (BVZ at [56]).

77 In other words, both Thean J and Hoo J were not using the severity of a particular sexual offence to adjust the sentencing bands in Pram Nair. Rather, they took into account the severity as an aggravating factor, where appropriate.

78 I agreed with the view of Thean J in Bernard Tan that the sentencing bands in Pram Nair were still a useful reference point in determining the appropriate sentence for sexual penetration offences under s 376 of the Penal Code which did not involve digital-vaginal penetration. Given the considerable number of ways in which sexual penetration offences may manifest, it did not seem appropriate to have different sentencing bands for each type of sexual penetration offence. Rather, the severity of a particular sexual penetration offence should be taken into account at the first stage of the Pram Nair framework as an offence-specific aggravating factor.

79 Applying the Pram Nair framework, at the first stage, I was of the view that there were two offence-specific aggravating factors in relation to the 6th Charge (fellatio). The first was the fact that the Complainant was a vulnerable victim (see [27]–[28] above). The second related to the nature of the sexual penetration offence committed against the Complainant. Asep’s actions, in forcing the Complainant to fellate him, were both humiliating and further exposed the Complainant to the risk of contracting sexually-transmitted diseases. This placed Asep’s conduct at the higher end of Band 1 or the lower end of Band 2 within the Pram Nair framework, with an indicative sentence of ten years’ imprisonment and between four and eight strokes of the cane.

80 This indicative sentence was in line with BVZ, the only other case applying the Pram Nair framework to fellatio offences under s 376(1)(a) and punishable under s 376(3) of the Penal Code.

81 In BVZ, the accused person committed two separate fellatio offences against a 14-year-old victim under s 376(1)(a) of the Penal Code. In addition to the humiliating nature of the offence and the risk of sexually-transmitted diseases (mentioned above at [76]), other aggravating factors included that of a vulnerable victim, abuse of a position of trust, premeditation, and use of force (in respect of one of the offences). The offences were found to fall within Band 2 of the Pram Nair framework with an indicative sentence of 12 years’ imprisonment and eight strokes of the cane. After taking into account the accused person’s plea of guilt, he was sentenced to ten years’ imprisonment and eight strokes of the cane for each fellatio offence. The sentence was upheld by the Court of Appeal in BVZ v Public Prosecutor (Criminal Appeal No 19 of 2019). I understand that written grounds will eventually be issued by the Court of Appeal.

82 The offences in BVZ were clearly more aggravated than in the present case where there were only two offence-specific aggravating factors. This justified the lower indicative sentence of ten years’ imprisonment and between four and eight strokes of the cane.

83 At the second stage of the Pram Nair framework, Asep raised three mitigating factors generally: (a) his youth ³⁴ ; (b) lack of antecedents ³⁵ ; and (c) the fact that Asep was being treated for an adjustment disorder, secondary to the stress of the criminal proceedings against him. ³⁶

84 Similar to Ridhwan and Faris, I did not regard Asep’s youth and lack of antecedents as a mitigating factor due to the severity of the offences committed against the Complainant (see [38]–[52] above).

85 The fact that Asep was suffering from an adjustment disorder, secondary to the stress of the criminal proceedings, did not have any bearing on his culpability for the offences against him and I did not consider it as a mitigating factor.

86 The offender-specific aggravating factors raised by the Prosecution were the same as those raised in respect to Ridhwan and Faris and which I did not accept (see [53]–[58] above).

87 In the circumstances, given the lack of any aggravating or mitigating factors, I was of the view that an appropriate sentence for the 6th Charge (fellatio) would be ten years’ imprisonment and five strokes of the cane.

88 For the 3rd Charge, which was against Ridhwan for outrage of modesty, I was referred to the sentencing framework set out by Chan Seng Onn J in Kunasekaran which I will set out later. ³⁷

89 The Prosecution’s position was that Ridhwan’s conduct fell within the higher end of Band 2 under the Kunasekaran framework as there were three offence specific-aggravating factors. The first two factors were identical to those raised in respect of the offences of rape and sexual assault by penetration, ie, the fact that the victim was vulnerable and that she suffered significant emotional and mental harm. The third factor was the significant degree of sexual exploitation as Ridhwan’s actions in sucking on the Complainant’s nipples were a “highly intrusive act vis-à-vis the [Complainant’s] private parts.” ³⁸ Based on this, the Prosecution submitted a sentence of 12 months’ imprisonment and three strokes of the cane.

90 The Defence argued that a sentence of around eight months’ imprisonment was appropriate for the 3rd Charge on the basis that the facts of the present case were less aggravated than those in Kunasekaran, where the accused had touched the groin area of the victim on a public bus for about one minute. ³⁹ In Kunasekaran, the accused was eventually sentenced to eight months’ imprisonment.

91 The Kunasekaran framework applies the “two-step sentencing bands” approach in Terence Ng to offences under s 354(1) of the Penal Code. This is distinct from the framework in Public Prosecutor v GBR [2018] 3 SLR 1048 (“GBR”), which applies to an aggravated form of outrage of modesty under s 354(2) of the Penal Code (but on which the Kunasekaran framework is based). For completeness, I would highlight that there exists a third, and much more severe, form of outrage of modesty under s 354A of the Penal Code which is not relevant for present purposes.

92 At the first stage of the Kunasekaran framework, the court ascertains the gravity of the offence based on the number of offence-specific aggravating factors (see Kunasekaran at [45]) and places it within one of three sentencing bands:

(a) Band 1: less than five months’ imprisonment;

(b) Band 2: five to 15 months’ imprisonment; and

(c) Band 3: 15 to 24 months’ imprisonment

93 Citing the decision of See Kee Oon J in GBR at [31]–[38], Chan J set out the characteristics of each of the bands (Kunasekaran at [45(b)]):

94 The second stage of the Kunasekaran framework is identical to that in the Terence Ng framework, requiring a consideration of the offender-specific aggravating and mitigating factors in order to determine the appropriate sentence.

95 Chan J rationalised the decision in Public Prosecutor v Chow Yee Sze [2011] 1 SLR 481 (“Chow Yee Sze”), which adopted the “benchmark” approach (set at nine months’ imprisonment with caning), as being consistent with the Kunasekaran framework. The accused in Chow Yee Sze had intruded on the victim’s private parts or sexual organs, which would have placed his conduct in Band 2. Chan J also observed that Chow Yee Sze remained instructive in setting out that caning generally ought to be imposed for offences under s 354(1) of the Penal Code which involved intrusions upon the victim’s private parts or sexual organs (Kunasekaran at [50]–[51]).

96 I was of the view that the Kunasekaran framework had much to commend it in terms of promoting transparency and consistency in sentencing for offences under s 354(1) of the Penal Code and applied it in determining the appropriate sentence for the 3rd Charge.

97 I have already set out my reasons for rejecting the Prosecution’s submission that the victim’s emotional and psychological trauma was an offence-specific aggravating factor (see [21]–[28] above). With respect to the degree of sexual exploitation, I agreed with the Prosecution that the present case was more aggravated than Kunasekaran. In Kunasekaran, there was no skin-to-skin contact with the victim’s private parts. This was in contrast to the present case where Ridhwan sucked on the Complainant’s nipples. To my mind, this was a higher degree of sexual exploitation which, taken together with the Complainant’s intoxication, placed Ridhwan’s actions in the higher end of Band 2 or lower end of Band 3 under the Kunasekaran framework. An appropriate indicative sentence would be 15 months’ imprisonment.

98 There was also the issue of whether caning ought to be imposed for the 3rd Charge. Given that Ridhwan had intruded upon the Complainant’s private parts by sucking on her nipples and her intoxication, this was a case where the imposition of caning was appropriate (see [95] above).

99 At the second stage of the Kunasekaran framework, the offender-specific mitigating and aggravating factors in respect of Ridhwan were the same as those in respect of the 1st and 2nd Charges above (see [30]–[34], [38]–[58] above). Since there were no aggravating or mitigating factors, I was of the view that an appropriate sentence would be 15 months’ imprisonment and three strokes of the cane.

100 I come now to the 7th Charge, which was for the attempted rape of the Complainant by Asep. The Prosecution referred to the case of Udhayakumar, which adapted the Terence Ng framework to attempted rape by halving the sentencing ranges. Similar to the 6th Charge, the Prosecution argued that Asep’s conduct fell within Band 2 and that an appropriate sentence would be seven and a half years’ imprisonment and six strokes of the cane. ⁴⁰

101 The Defence submitted that the sentence for the 7th Charge should be four years’ imprisonment and four strokes of the cane. The Defence relied on the case of Ng Jun Xian v Public Prosecutor [2017] 3 SLR 933 (“Ng Jun Xian”), where the sentence of four years’ imprisonment and four strokes of the cane for attempted rape imposed by the District Judge was upheld on appeal. ⁴¹

102 I agreed with the Prosecution’s submission that the Terence Ng framework, as adapted in Udhayakumar, was the appropriate sentencing framework to be applied in cases of attempted rape.

103 I did not find the case of Ng Jun Xian to be of much assistance as the Court hearing the appeal did not have the benefit of the Court of Appeal’s decision in Terence Ng. I did not think that it was desirable for the sentencing framework for the offence of attempted rape to be entirely different from that which applied where the offence was completed. By adjusting the sentencing bands downward proportionately, the principles embodied in the Terence Ng framework could be applied to offences of attempted rape, where the maximum imprisonment term which can be imposed is halved by virtue of s 511 of the Penal Code.

104 I was of the view that Asep’s conduct fell within Band 1 of the Terence Ng framework as adapted by Udhayakumar as the only offence-specific aggravating factor was that of a vulnerable victim (see [23]–[28] above). This gave an indicative sentence of six to seven years’ imprisonment and three strokes of the cane. In view of the lack of offender-specific aggravating or mitigating factors (see [83]–[87] above), I concluded that a sentence of six years’ imprisonment and three strokes of the cane would be appropriate for the 7th Charge.

105 At the sentencing hearing on 14 August 2019, I was informed that each of the accused persons was in remand for a period of time before being released on bail:

(a) Ridhwan   - 47 days

(b) Faris       - 42 days

(c) Asep      - 2 days

106 Their respective sentences were thus adjusted downwards to take the remand period into account.

107 The sentences for Ridhwan were as follows:

108 Since Ridhwan was convicted of three charges, I was bound to order at least two of the sentences to run consecutively under s 307 of the Criminal Procedure Code (Cap 68, 2012 Rev Ed). I ordered the sentences for the 2nd and 3rd Charges to run consecutively, giving an aggregate sentence of 13 years’ and one month and 13 days’ imprisonment. The sentence for the 1st Charge was to run concurrently with that for the 2nd Charge. The aggregate number of strokes of the cane for all three charges was 13 strokes.

109 For Faris, there was no question of consecutive sentences as he was convicted on a single charge, ie, the 4th Charge of rape. The sentence was 11 years’ and 10 months’ and 18 days’ imprisonment and six strokes of the cane.

110 The sentences for Asep were as follows:

111 I ordered that the sentences for the 6th and 7th Charges run concurrently, giving an aggregate sentence of nine years’ and 11 months’ and 28 days’ imprisonment. The aggregate number of strokes of the cane was eight for the two charges.

112 To reiterate, the three accused persons' sentences were as follows: