GCO v Public Prosecutor [2019] SGHC 31 -Criminal Procedure and Sentencing

Charges

• The appellant appealed against his sentences in respect of two charges:
  • For outrage of modesty (the “OM offence”) under s 354(1) of the Penal Code;
  • For insulting the modesty of a woman under s 509 of the Penal Code

Decision in District Court

• The appellant pleaded guilty to both proceeded charges and was convicted.
• Sentenced by the District Judge to serve a term of eight months’ imprisonment and three strokes of the cane in respect of the OM offence, and one month’s imprisonment in respect of the s 509 offence.
• The sentences were ordered to run consecutively, for an aggregate sentence of nine months’ imprisonment and three strokes of the cane.

Appeal Ground

• The appellant appealed on the grounds that the District Judge failed to appreciate the materials placed before her, and that his sentence is manifestly excessive.

Issues Before the High Court
There are three issues before this court:

1. Should probation or an MTO have been ordered?
2. If not, did the District Judge err in her application of the Kunasekaran framework?
3. Did the District Judge err in ordering imprisonment for the s 509 offence?

Decision in High Court
Issue 1: Should probation or an MTO have been ordered?

• The decision in Public Prosecutor v Lim Chee Yin Jordon [2018] 4 SLR 1294 (“Jordon Lim”) is informative on whether probation can be ordered.
  • Probation responds to the principle of rehabilitation and can only be justified where rehabilitation is the dominant sentencing principle.
  • Rehabilitation as a sentencing principle will presumptively take precedence where young offenders are involved. Adult offenders above 21 years of age can still be sentenced to probation, although this would be the exception rather than the norm.
  • The question is whether or not the offender demonstrates an extremely strong propensity for reform, or that there be exceptional circumstances warranting the grant of probation even if rehabilitation is found to apply, it can be displaced by the need for deterrence.
  • Rehabilitation would come to the fore, and deterrence recede in significance, if the offender suffers from a mental condition causally linked to the commission of the offence
    • The appellant was 23 years old and 25 years old when he committed the offences and was well above the threshold of 21 years old, the age where the presumptive dominant sentencing principle is rehabilitation.
    • The appellant’s submissions in respect of rehabilitation are primarily founded on the IMH reports. The appellant has been diagnosed with voyeurism and fetishism.
    • Specific request that the IMH psychiatrist give information as to the “Diagnosis of the patient and its implications on his general behavior/tendencies”.
  • The existence of a mental condition does not ipso facto displace the need for deterrence and bring rehabilitation to the fore.
  • Necessary to go further and ask whether the mental condition was causally linked or had substantially contributed to the commission of the offences. The IMH reports do not shed any light on that question.
  • 1: In Chong Hou En, “experts were engaged in order to assist the court in shedding light on the nature of voyeurism – specifically whether it deprives a voyeur of his exercise of self-control at the various stages of preparation to the stage when he acts out his fantasies”. If voyeurism does not cause the appellant to lose his self-control, it would be difficult to say that rehabilitation has come to the fore.
  • 2: The appellant’s fetish is for cross-dressing. The appellant is described as enjoying the thrill of being able to pass off as a female while almost getting seen, and deriving excitement from the prospect of not being caught while clothed in female attire. Therefore, it was highly unlikely that the appellant’s ability to control himself would have been affected by this particular mental condition;
  • 3: Even if the appellant were found to possess some potential for rehabilitation, it would be eclipsed or significantly outweighed by deterrence in the present case because the offence is a serious one, following the High Court’s guidance in Public Prosecutor v Koh Wen Jie Boaz [2016] 1 SLR 334.
  • Conclusion for Issue: It is unnecessary to further consider probation as a sentencing option. The appellant has not shown that exceptional circumstances apply in his case for probation to be considered.

Issue 2: Did the District Judge err in her application of the Kunasekaran framework?

1. At the first step of the Kunasekaran framework, the court must first determine which of the three sentencing bands the offending act falls within by considering the offence-specific factors, namely the degree of sexual exploitation, the circumstances of the offence, and the physical or psychological harm caused to the victim.
2. At the second step of the framework, the court should consider offender-specific factors that are aggravating or mitigating.

Offence-specific factors:

• The appellant disputes that the second victim’s private parts were intruded upon. The basis for this argument is that the Statement of Facts only records that the second victim’s “vagina area” was touched. The appellant says it is crucial that the Statement of Facts was not more specific; it failed to say that the vagina itself was touched.
  • The judge held that the degree of ambiguity in this case is not as great as that in Kunasekaran.
  • The groin area, as Chan J pointed out, covers a much wider region of the body than a person’s private parts.
  • Conversely, the “vagina area” is a much narrower area, and even if the vagina itself had not been touched, the touching was sufficiently proximate to the vagina that it ought to be considered an intrusion of the second victim’s private parts in any event.
• The appellant submitted that the act of molest was merely in the form of a fleeting touch.
  • That submission cannot be accepted.
  • The judge held that the appellant’s actions were not fleeting in either sense of the word.
  • The appellant had to insert his hand through the opening of the second victim’s shorts, and manoeuvre his hand into position to touch her vagina area from underneath her shorts, but over her underwear. This could not be described as a brief or quick touch, was highly intrusive.
• The Prosecution has raised a number of offence-specific aggravating factors in support of the District Judge’s decision.
  • The second victim was vulnerable because she was asleep, and therefore unable to protect herself.
  • The offence was committed at an educational institution.
  • Appellant preyed on his own classmate, when she was entitled to feel safe sleeping in the laboratory where the appellant was also present.
• The presence of these aggravating factors suggests that the acts fell within Band 2 of the Kunasekaran framework. The absence of skin-to-skin contact with the second victim’s private parts and the absence of any further aggravating factors also suggests that the acts did not fall within the upper end of Band 2. Band 2 has a sentencing range of five to 15 months’ imprisonment in Kunasekaran.
• Conclusion for Issue: The judge agreed with the District Judge that eight months’ imprisonment would be appropriate as an indicative starting point.

Offender-specific factors:
– Appellant’s conditional stern warning irrelevant to sentencing

• • The District Judge held that the appellant reoffending just two months after having been served with a 12-month conditional warning was an aggravating factor. The appellant submits that this was wrongly taken into account.
  • What the High Court held in Jolovan Wham applies equally to stern warnings and conditional stern warnings. A stern warning is nothing more than an expression of the relevant authority’s opinion that the offender has committed an offence, and that if he were to subsequently engage in criminal conduct, leniency may not be shown to him and he may be prosecuted for the subsequent conduct.
  • A conditional stern warning, like a stern warning, is only informational in nature, there is no reason to find that a person having received this information and reoffending in spite of this information, should be considered ipso facto to have aggravated his offence.
  • The offender did not legally bind himself not to do certain things, such that his doing them ought to be considered aggravating and warranting increased punishment.
  • It is relevant to consider how the deterrent effect of the conditional stern warning is to be achieved.
    • Committing the OM offence after having been given a conditional stern warning for the s 509 offence –
    • There can be no deterrent value to be derived from a hidden consideration not spelt out to the alleged offender: that if he reoffends, the very fact of reoffending in breach of the conditional stern warning will also be held against him as a separate aggravating factor in sentencing for the fresh offence.
    • The recipient of the conditional stern warning cannot be heard to complain of being taken by surprise should he end up being prosecuted for the warned offence.
    • In the present case, there is nothing to suggest that the conditional stern warning given to the appellant specifically said that reoffending in breach of the condition to the warning would be considered an aggravating factor over and above the threatened action of preferring a charge, as was ultimately done.

Even if judge was wrong in views on the above principles, it would not be correct in this specific case to find it an aggravating factor that the appellant committed the OM offence in breach of the condition.

• Conclusion of Issue: The District Judge erred in law in finding as a discrete aggravating factor the fact that the appellant had committed the OM offence during the 12-month conditional stern warning period. A warning – stern or conditional, has no legal effect in sentencing.

Escalation of the Offences

• The prosecution argued that a separate aggravating factor present here is the escalation in the appellant’s offending from insulting the modesty of a woman by peeping over the wall of the shower cubicle in a female toilet, and one and a half years later in April 2017, the commission of outrage of modesty.
• The issue is whether conduct constituting criminal behaviour that takes place prior in time to a separate charge be considered an aggravating factor for that charge if the offender is only convicted on both charges at the same time?
  • It is an aggravating factor for an offender to have committed an offence of a similar nature to the one for which he is presently being charged, because it may reflect a pattern or tendency for repeat offending.
  • An antecedent refers to an offender’s previous convictions, because the references to “offences” in “earlier offences” and “previous offences” must mean a legal determination of guilt.
  • The present situation should be considered less aggravating than the situation where the offender was previously convicted for the first set of criminal behaviour. In that scenario, it is well-established that having a relevant criminal antecedent is an aggravating factor justifying more severe punishment, because the punishment the offender previously received was not sufficient to deter him from offending again. The previous conviction and punishment would have served as a signal to that offender not to reoffend. The appellant here, however, has not received such a signal.
  • The appellant here cannot be said to have an antecedent in respect of his actions committed in 2015. He was not charged, much less convicted and sentenced, in respect of those actions until he was also charged for the OM offence. It is evidence of his predisposition or character at best. The appellant must be considered a first offender in respect of both charges here, as he was convicted on both charges at the same time.
  • The risk of reoffending is not only to be discerned from the offender committing two offences. It is also discernible from the offender committing more serious criminal acts. This is the “escalation” in criminal behaviour that has occurred in this case. The Prosecution is correct that the appellant’s criminal actions have increased in severity, from insulting the modesty of a woman, to outraging the modesty of a woman.
• Conclusion of Issue: The escalation in criminal behaviour is an aggravating factor in this case, because the appellant’s criminal behaviour has given rise to two separate sexual offence charges, the latter being more serious than the first. This clearly demonstrates his propensity to reoffend. Specific deterrence is rightly engaged in this case.

Mitigating factors

• The appellant pleaded guilty at the first available opportunity, thereby demonstrating remorse and also saving judicial and prosecutorial resources
• Appellant’s apology to the second victim can also be given some weight as a demonstration of remorse
• Conclusion of Issue: Having regard to the aggravating and mitigating factors in this case, no reason to disturb the indicative starting point of eight months’ imprisonment. The mitigating factor of the early plea of guilt effectively negates the aggravating factor of the escalation in criminal behaviour.

Should caning be imposed

• Caning ought not to be imposed in this case.
• Caning has typically been imposed on offenders in cases applying the Kunasekaran framework where there was skin-to-skin contact, or the contact was prolonged, or there was an element of restraint applied to the victim, although these aggravating factors should not be taken to be exhaustive.
• Conclusion of Issue: None of these three factors is present here. It is therefore appropriate that the sentence of caning be set aside.

Issue 3: The Section 509 Offence

• The appellant submitted that the District Judge erred in finding that the offence was premeditated, and erred also in placing too much reliance on the Prosecution’s table of sentencing precedents, which precedents were mostly unreported.
• In Public Prosecutor v Mohammed Liton Mohammed Syeed Mallik [2008] 1 SLR(R) 601, an appeal was brought by an offender who had been convicted under s 509 for taking four photographs of the victim in the nude. A large part of the judgment is concerned with the aggravating factor of the use of technology in that case. The key point then is whether the offence was premeditated.
• The facts as described in the Statement of Facts do not suggest that the appellant had given a great deal of thought to planning this entry; instead, the facts appear to suggest that he acted on a whim “when he heard someone showering inside the toilet”.
• All that is said is that at about 5.00am, the appellant was “outside the female toilet”.
• Although it is true that the appellant in his own mitigation plea admits to having an urge to “have with him pieces of female clothing while taking showers in the hall’s female toilets as part of his desire to act as a female”, this general pattern of behaviour does not permit a clear inference that the appellant had gone to the female toilet with the specific intent to insult the modesty of a woman. It amounts at most to an admission that he habitually trespassed into female toilets.
• The judge considered that the benefit of doubt should be given to the appellant. T
• Conclusion of Issue: The appellant did not premeditate the s 509 offence, and the custodial threshold has not been crossed.

Conclusion:

• Allowed the appellant’s appeal in part.
• In respect of the OM offence, a sentence of eight months’ imprisonment is appropriate, and the sentence of caning is set aside.
• In respect of the s 509 offence, a fine was enough.
• The aggregate sentence is eight months’ imprisonment, and a fine of $2,000, in default two weeks’ imprisonment.