That you, YAP POW FOO,

457. Whoever commits lurking house-trespass by night or house-breaking by night, in order to commit any offence punishable with imprisonment, shall be punished with imprisonment for a term which may extend to 5 years, and shall also be liable to fine; and if the offence intended to be committed is theft, the term of the imprisonment shall be not less than 2 years and not more than 14 years.

458A. Whoever, having been convicted of an offence under section 454, … 457 … commits an offence under section 454 or 457 shall be punished with caning in addition to the punishment prescribed for that offence.

375.—(1)  Any man who penetrates the vagina of a woman with his penis —

(a) without her consent …

…

shall be guilty of an offence.

(2)  Subject to subsection (3), a man who is guilty of an offence under this section shall be punished with imprisonment for a term which may extend to 20 years, and shall also be liable to fine or to caning.

In considering the offender’s antecedents and the index offence, the court is inquiring into whether a cycle of offending exists, and if so, what has been the trend of offending behaviour. An escalation of sentences may be warranted where the offender’s antecedents disclose a “cavalier disregard for the law”: [Tan Kay Beng v Public Prosecutor [2006] 4 SLR(R) 10] at [16]; or as the Malaysian High Court put the point in Soosainathan v PP [2001] 2 MLJ 377 at 385D, where the offender’s prior criminality “demonstrate[s] that the current offence is no passing lapse, but evidence of a real unwillingness … to comply with the law”.

75  … [W]here the index offence is much more egregious, then proportionality may in fact demand a significantly heavier sentence to take account of the marked escalation in the accused person’s offending. What is essential is for the sentencing court to undertake a comparison of the gravity of the antecedent and the index offences, and consider how this should affect the sentence to be imposed for the index offence.

76 In order to have the correct factual basis for applying the principle of escalation, a sentencing court should also be alert to the fact that reference solely to an accused person’s antecedents in the form of the Criminal Records Office (“CRO”) record may be insufficient. The CRO record typically indicates the offences the accused person had been charged with, and the sentences imposed in respect of those charges. In order to have a fuller comparison between the index offence and the antecedent offence, it might sometimes be helpful or necessary to have reference to, among other things, the charges, statement of facts, psychiatric reports, and grounds of decision (where available). It is not every case where this will be called for – but certainly where the principle of escalation is in play, a court should endeavour to have as complete a picture as possible.

[emphasis in original]

Premeditation: The presence of planning and premeditation evinces a considered commitment towards law-breaking and therefore reflects greater criminality. Examples of premeditation include the use of drugs or soporifics to reduce the victim’s resistance, predatory behaviour (eg, the grooming of a child or young person), or the taking of deliberate steps towards the isolation of the victim (eg, by arranging to meet at a secluded area under false pretences).

Rape of a vulnerable victim: The rape of a victim who is especially vulnerable because of age, physical frailty, mental impairment or disorder, learning disability. Concerns of general deterrence weigh heavily in favour of the imposition of a more severe sentence to deter would-be offenders from preying on such victims (see [Public Prosecutor v Law Aik Meng [2007] 2 SLR(R) 814] at [24(b)]). Such cases would often, but not invariably, be accompanied by evidence of an abuse of position/trust and/or some element of premeditation and planning.

125 In Terence Ng, this court explained that a victim could be vulnerable because of “age, physical frailty, mental impairment or disorder, learning disability” (at [44(e)]). The appellant’s interpretation of this aggravating factor is that it encompasses all manner of vulnerability caused by “characteristics of a permanent and enduring nature, and not … temporary intoxication” [emphasis added]. Against this, the PP argues that victims who are “severely intoxicated” are also vulnerable because their physical and mental state renders them unable to resist sexual assault. The PP does concede, however, that mildly intoxicated victims may not be physically or mentally impaired and thus not vulnerable.

126 We agree with the PP for two reasons. First, approaching the matter in the abstract, we see no basis for distinguishing between a victim who is vulnerable because of a permanent characteristic and one who is vulnerable because of a temporary condition – for example, one who is physically frail because of a sprained ankle or mentally impaired because of heavy intoxication. The latter might also become targets because they are less able to fend off the offender’s sexual advances in the moment of the offence. A permanent condition may make a victim more vulnerable because it may afford the offender an opportunity for a more sustained course of sexual assault. This is the case with young victims: consider PP v BNN [2014] SGHC 7, where the offender was the stepfather of the victim and abused her over three years, his abuses growing in intensity and perversion (see [Ng Kean Meng Terence v Public Prosecutor [2017] 2 SLR 449] at [54(d)]). A victim with only a temporary disability or impairment may be less likely to be subjected to such a course of sexual assault, but it does not mean she is not vulnerable on the single occasion on which she is assaulted. The essential feature of this aggravating factor is that its existence makes it easier for the offender to commit the rape of the victim. The offender who targets an intoxicated victim exploits the same advantage. The intoxicated victim might be physically weak or suffer lapses in consciousness, and thus would be, in the Judge’s words, in “less of a condition to resist any sexual assault” (Sentence GD at [28]).

127 Second, as a matter of case authority, it is well recognised that an intoxicated victim is in a position of vulnerability in relation to a sexual offender, and that this factor in turn aggravates the offence.

[emphasis in original]

Severe harm to victim: As Rajah J stressed in [Public Prosecutor v NF [2006] 4 SLR(R) 849], every act of rape invariably inflicts immeasurable harm on a victim (at [46] and [47]). It seriously violates the dignity of the victim by depriving the victim’s right to sexual autonomy and it leaves irretrievable physical, emotional and psychological scars. Where the rape results in especially serious physical or mental effects on the victim such as pregnancy, the transmission of a serious disease, or a psychiatric illness, this is a serious aggravating factor. In many cases, the harm suffered by the victim will be set out in a victim impact statement.

Clinically, she did seem to experience some of the cardinal symptoms of Post-traumatic Stress Disorder related to the alleged rape, for which she had been referred to IMH for further psychological treatment.

It cannot be denied that an unwanted pregnancy and contracting a sexually-transmitted disease would have far-reaching consequences for the victim. The knowledge that she would be at risk of becoming pregnant or contracting a sexually-transmitted disease would itself inflict an extra level of trauma on the victim.

In my judgment, an offender’s attempt to conceal or dispose of the evidence of his offence, such as drugs or paraphernalia, in order to avoid prosecution or a heavier sentence should be treated as an aggravating factor. The rationale for this is not dissimilar to the basis on which attempts to conceal the offence or prevent detection are treated as enhancing culpability. In these cases, the accused is generally seeking to do one or more of a number of things: to avoid detection in order to continue the unlawful conduct; to avoid the full and proper consequences of his illicit actions; or to thwart law enforcement efforts. The aggravating weight to be placed on this may depend on the circumstances. Where the offender has successfully disposed of the drugs in his possession, the sentencing judge must not speculate on the original quantity of drugs and attempt to sentence the offender as if the drugs had not been disposed of; but the judge would undoubtedly be entitled to enhance the sentence having regard to this aggravating factor.

142 While exploitation of entrustment by third parties was not expressly recognised by the Court of Appeal in Ng Kean Meng Terence as an example of an offence-specific aggravating factor, I was of the view that it would be appropriate to treat this factor as such. Where the safety or wellbeing of the victim is entrusted to an offender by third parties, the offender, although not in a position of trust or responsibility in the sense outlined in the previous section, nevertheless commits an analogous “dual wrong”: not only has he committed a serious crime, he has violated the trust placed in him by others to protect or at least refrain from causing harm to the victim. That would, to my mind, be sufficient to amount to an offence-specific aggravating factor.

143 On the present facts, the [a]ccused was given the opportunity to be alone with the [v]ictim and to be in control of the [v]ictim’s person and movement because the others had entrusted him with bringing her home and keeping her unharmed. In fact, the [a]ccused had told the [v]ictim’s friends, including Kwok, and the staff of Zouk that he would send the [v]ictim home. However, the [a]ccused violated such trust placed in him by the others; he exploited the situation and committed a heinous act on the [v]ictim. In the circumstances, I found that the exploitation of the entrustment that the third parties had reposed in the [a]ccused was an offence-specific aggravating factor in the present case.

Evident lack of remorse: Such a conclusion may be drawn if, for example, the offender had conducted his defence in an extravagant and unnecessary manner, and particularly where scandalous allegations are made in respect of the victim. In [Public Prosecutor v AHB [2010] SGHC 138], the offender not only failed to take responsibility, but also blamed his wife, whom he said had withheld vaginal intercourse from him, for his behaviour (at [21]).

It is well established that the mere fact of claiming trial is not an aggravating circumstance (Kuek Ah Lek v PP [1995] 2 SLR(R) 766 at [65]). At the same time, however, the fact that an accused maintains the correctness of his position “in a defiant manner right to the end, despite the overwhelming evidence to the contrary”, is a relevant factor to be taken into account (Lee Foo Choong Kelvin v PP [1999] 3 SLR(R) 292 at [36]), as is the fact that an accused has “all but spun an entire fairy tale in court” (Trade Facilities Pte Ltd v PP [1995] 2 SLR(R) 7 at [116]).

That you, YAP POW FOO, at or around 12.31pm on 28 March 2017, in Singapore, did intentionally cause distress to [X], by making an insulting communication, to wit, you sent [X] two photos of penises and a message “Kns give u this”, with the intent to cause distress to [X], and which did so cause her distress, and you have thereby committed an offence under section 3(1)(b) and punishable under section 3(2) of the Protection from Harassment Act (Cap 256A, 2015 Rev Ed).

Offences taken into consideration for the purposes of sentencing (“TIC offences”): While a court is not bound to increase a sentence merely because there are TIC offences, it will normally do so where the TIC offences are of a similar nature (see [Public Prosecutor v UI [2008] 4 SLR(R) 500] at [38]).

When a person is convicted at one trial of any two or more distinct offences any two or more of which are legally punishable by caning the combined sentence of caning awarded by the court for any such offences shall not, anything in any Act to the contrary notwithstanding, exceed a total number of 24 strokes in the case of adults or 10 strokes in the case of youthful offenders.

328.—(1) Despite any provision of this Code or any other law to the contrary, where an accused is sentenced at the same sitting for 2 or more offences punishable by caning (called in this section the relevant offences), the aggregate sentence of caning imposed by the court in respect of the relevant offences must not exceed the specified limit.

…

(6)  In this section, the specified limit is 24 strokes in the case of an adult and 10 strokes in the case of a juvenile.

Against this backdrop of consistent and established jurisprudence, we see no reason to revisit the High Court decision in [Public Prosecutor v Chan Chuan [1991] 1 SLR(R) 14]. To reiterate the reasoning of the High Court in that case, if Parliament had intended to make available the power to impose concurrent sentences of caning, this power would have been provided for as in the case of imprisonment terms. This view has been reflected clearly and consistently in the courts’ sentencing practice and Parliament has not sought to change or to correct it by statutory amendment over these past decades although many major changes to the CPC have been made. Therefore, to invoke s 6 of the CPC for the purpose of introducing a non-statutory power relating to caning which Parliament has seen fit all these years not to incorporate into the CPC would be to contradict Parliament’s intention. The principle of proportionality must take reference from the legislative intent of Parliament. Where Parliament has expressed its intention clearly in the form of mandatory caning or a mandatory number of strokes while setting only the specified limit of 24 strokes for adult offenders in s 328 of the CPC, it is impermissible for the court to qualify or even to nullify such intention by the subtle use of non-statutory powers in a supposed quest for proportionality.

Having determined the individual sentence for each charge, the next stage is for the court to consider whether they should run consecutively or concurrently. In our judgment, the Judge was correct in ordering all three sentences to run consecutively. First, s 307(1) of the Criminal Procedure Code (Cap 68, 2012 Rev Ed) provides that where a person is sentenced to imprisonment for at least three distinct offences, the court must order the sentences for at least two offences to run consecutively. Second, the possession charge relates to a separate transaction which took place about a month prior to the rape and house-breaking offences. Third, although the latter two offences were temporally proximate, the offences of rape and house-breaking violate different legally-protected interests and should not be regarded as being part of a single transaction: [Chang Kar Meng v Public Prosecutor [2017] 2 SLR 68] at [62]; Mohamed [S]houffee bin Adam v PP [2014] 2 SLR 998 (“Shouffee”) at [33]. Distinct offences should be punished separately with consecutive sentences so as to ensure that each legally-protected interest is properly vindicated. Otherwise, the imposition of concurrent sentences for unrelated offences would result in the perverse and unjust outcome of the offender not having to bear any real consequences for the further offending: [Public Prosecutor v Raveen Balakrishnan [2018] 5 SLR 799] at [41]–[46].