Sexual Assault by Penetration Criminal Procedure and Sentencing – Abetment

Charges

• The accused, BUT, faced total of 57 charges:
  • 1st Charge: For conspiring with SM to engage and make arrangements on 7 August 2016 at a hotel to penetrate the victim without her consent which was committed in consequence of BUT’s abetment. The Offence charged was under Section 375(1)(a) punishable under s 375(2) read with Section 109 of the Penal Code.
  • 2nd Charge: For conspiring with SM to engage and make arrangements on 7 August 2016 at a hotel to penetrate the victim without her consent on 29 April 2016 and 30 April 2016. The Offence was under Section 376(2)(a) punishable under Section 376(3) read with Section 109 of the Penal Code.
  • 5th Charge: For conspiring with SM to engage and make arrangements for SM to sexually assault on 29 April 2016 and penetrate the victim without her consent. The Offence was under Section 376(2)(a) punishable under Section 376(3) read with Section 109 of the Penal Code.

Summary of Facts of Case

• BUT had been viewing pornography on social media and engaging in sexual related discussions with other persons. In 2015, he initiated contact with his would-be accomplice (“SM”), a Singaporean male.
• BUT disclosed to SM his sexual fantasy of watching a third party engaging in sex with his girlfriend, “V”.
• BUT conceived of a plan for him and SM to engage in a threesome with V.
• BUT knew that he had to keep SM’s participation in the illicit threesome a secret from V
• V had earlier disagreed with the idea of a threesome when he first broached the topic with her.

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?

Sentencing framework for the abetment of rape and digital-penetration
Issue 1: Should probation or an MTO have been ordered?

• The maximum punishment for abetment of an offence remains the same as for the primary offence (of rape and sexual assault by penetration). The sentencing approaches for the primary offences should apply with equal force.
• The parties agreed that the offences of abetment of rape and digital-penetration fell within Band 2 of the framework in Ng Kean Meng Terence v Public Prosecutor [2017] 2 SLR 449.
  • For rape: 13 to 17 years’ imprisonment and 12 strokes of the cane; and
  • For digital-penetration: ten to 15 years’ imprisonment and eight strokes of the cane
• The parties agreed that the offence-specific aggravating factors comprised abuse of trust, premeditation on BUT’s part, and V’s vulnerability.

Prosecution’s case

• The Prosecution submitted that given the number and intensity of the offence-specific aggravating factors, the case fell within the middle range of Band 2 and the indicative starting point was 15 years’ imprisonment for the abetment of rape, and 12 years’ imprisonment for the abetment of digital-penetration.
• In consideration of all subjects below, BUT’s plea of guilt, a sentencing discount of at most a year for each of the charges would be appropriate.
• Prosecution submitted for a sentence of 14 years’ imprisonment and 12 strokes of the cane for the 1st and 2nd charges and of 11 years’ imprisonment and eight strokes of the cane for the 5th charge. The 1st and 5th charges were to run consecutively, totalling 25 years’ imprisonment and the maximum 24 strokes of the cane.

Defence’s Case

• An additional discount of a year per charge was warranted due to the totality principle.
• The Defence thus submitted for a sentence of 12 years’ imprisonment and eight strokes of the cane for the 1st and 2nd charges and of eight years’ imprisonment and eight strokes of the cane for the 5th charge. The 1st (or 2nd) and 5th charges were to run consecutively, totalling 20 years’ imprisonment and 24 strokes of the cane.

Offence-specific factors:

• Prosecution:
  • Submitted that there had been a flagrant abuse of V’s trust and she had given in to his pleas to engage in soft-bondage practices for his sexual pleasure because of her love for him.
  • She reposed such a degree of trust in him that she allowed herself to be blindfolded and tied up during sex thus placing herself at his complete mercy which put her in a vulnerable position.
  • BUT knew that V had disagreed with the notion of a threesome, and went ahead to orchestrate the acts with SM. He selfishly prioritised his sexual gratification at V’s expense.
• Defense:
  • Referring to Public Prosecutor v BQW [2018] SGHC 136 at [37]: Suggested that present case involved a different level of trust as compared to precedents where the accused was in an occupation of trust, or where there was a familial relationship.
• Court:
  • Agreed with the Prosecution.

2. Premeditation and employment of deception

• Prosecution:
  • BUT had displayed premeditation and employed deception. He was the “sole mastermind” of the conspiracy.
  • BUT capitalised on the fact that he had introduced V to soft-bondage practices and could therefore get her to participate in a threesome against her express wishes.
  • Highlighted the large extent of BUT’s involvement to led up to the offences.
• Defense:
  • Defence’s submission that precedents such as Public Prosecutor v Koh Rong Guang [2018] SGHC 117 (“Koh Rong Guang”): Accused was convicted of three charges of statutory rape and where there was use of the threat of violence, had more aggravating factors than the present case.
• Court:
  • Agreed with the Prosecution that there was a considerable degree of premeditation and planning as well as employment of deception in an attempt to conceal the heinous acts and to procure V’s unknowing participation in the acts.
  • It was clear that both BUT and SM had carefully coordinated prior to, and during, the offences to violate V in such a way as to prevent her from discovering their reprehensible conduct.
  • BUT who had initiated the conspiracy with SM and provided details of when and how they would carry out the sexual violation of V.
  • With regard to the Defense’s submissions, the judge did not think a comparison with the facts of Koh Rong Guang was entirely appropriate.
    • The overall sentence imposed in that case was higher, ie, 28 years’ imprisonment (and after taking into account the totality principle) and upon conviction after a trial.
    • The lack of a threat of violence in the present case was a commensurate comparison. As the Prosecution rightly pointed out, the abetment of rape here was insidious and it was not necessary for BUT to utilise the threat of violence.
    • He had deployed a significant degree of deception and abuse of V’s trust to procure her unknowing participation in the rape offences.

3. V was a vulnerable victim

• Prosecution:
  • V was vulnerable in that she had been rendered utterly defenceless against SM’s sexual assaults.
• Defense:
  • Conceded that while V was not vulnerable in the sense that she was underage
  • Accepted that she was at the mercy of BUT while the offences were committed.
• Court:
  • BUT had capitalised on his encouragement of V into accepting soft-bondage practices and further accustomed her to being blindfolded and tied up.
  • BUT fostered an assumption in V that when she placed herself in such a compromising position she would not be harmed. Once V had acceded to his request and allowed herself to be additionally vulnerable (by being placed in “bondage”), BUT had exploited that vulnerability and invalidated both her trust and her sexual autonomy.
  • It was the violation of V’s inalienable right to choose how and who she would or would not have sex with that struck at the very heart of why rape was rightly regarded as a heinous offence.

4. Deliberate infliction of special trauma

• Prosecution:
  • There was the deliberate infliction of special trauma.
  • BUT had transgressed V’s wishes not to engage in a threesome and had filmed the illicit enterprise for his repeated viewing pleasure.
  • There was a further risk of dissemination of the footage.
• Court:
  • Accepted the Prosecution’s submission that there was deliberate infliction of special trauma.
  • It should be noted that on the first occasion (in April 2016), BUT had enabled SM to repeatedly rape V (the subject of the 2nd, 3rd and 4th charges).
  • Further, on both occasions, SM had penetrated V without a condom and BUT had knowingly risked V’s exposure to pregnancy and the transmission of a serious disease by a stranger.
  • BUT’s act of smearing SM’s semen over V’s lips showed how he reduced V to a mere sex object to be humiliated at his pleasure.

Offender-specific factors
1. Charges taken into consideration and deletion of evidence

• There were 54 charges taken into consideration for the purposes of sentencing.
  • Included two other acts of abetment of rape of V by SM (committed on the first occasion in April 2016);
  • Four charges of abetment of the outrage of modesty by SM of V (committed on the first and second occasions of the rape by SM in April and August 2016);
  • Making of numerous obscene films pertaining to the acts of the first occasion;
  • Committing similar offences of making obscene films of two other unsuspecting females thereby insulting their modesty.
• BUT’s hasty deletion of incriminating evidence on his laptop and of his messages with SM was indubitably an aggravating factor.
• BUT’s deletion of the evidence prevented the recovery of the obscene films he had made of SM and V on the second occasion of the abetment of rape.

2. Plea of guilt

• BUT’s plea of guilt had saved the Prosecution and the court valuable time and resources.
• BUT expressed his remorse and apologised to her without reservations, it was accepted that there was some genuine remorse on BUT’s part.
• Chang Kar Meng v Public Prosecutor [2017] 2 SLR 68: accused who pleads guilty should ordinarily be given at least some credit as the victim does not need to undergo the additional suffering of having to relive the experience in court.

Conclusion

• The number and degree of the offence- and offender-specific aggravating factors placed BUT’s offences at the very least within the middle of Band 2 of Terence Ng and Pram Nair and hence the indicative starting sentence was 15 years’ imprisonment for abetment of rape and 12 years’ imprisonment for abetment of digital-penetration.
• General and specific deterrence was warranted, given the heinous nature of the crimes committed by BUT and the offence- and offender specific factors, such as the degree of premeditation and planning, the significant deployment of deception to procure V’s unknowing participation in the acts, how BUT had destroyed incriminating evidence after he was caught, and the number and nature of the charges taken into consideration.
• BUT initiated the plan with SM to sexually abuse V and, not being satisfied with having done so once (on the first occasion), repeated the heinous acts again (on the second occasion). His actions led to the degradation and humiliation of V, his own girlfriend.