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Public Prosecutor v Lee Kit
[2024] SGDC 41
| Case Number | : | District Arrest Case No 920790 of 2023 |
| Decision Date | : | 18 March 2024 |
| Tribunal/Court | : | District Court |
| Coram | : | Justin Yeo |
| Counsel Name(s) | : | Mr David Menon (Attorney-General's Chambers) for the Prosecution; Mr Shashi Nathan and Mr Jeremy Pereira (M/s Withers Khattarwong LLP) for the Accused. |
| Parties | : | Public Prosecutor — Lee Kit |
Criminal Law – Offences – Outrage of Modesty
Criminal Procedure and Sentencing – Sentencing – Sentencing Framework
| 18 March 2024 | Judgment reserved. |
District Judge Justin Yeo:
Introduction
1 Mr Lee Kit, the accused person (“Accused”), is a 35-year-old Singaporean male who pleaded guilty to a charge under s 354(1) of the Penal Code (Cap 224, Rev Ed 2008) (“Penal Code”) for using criminal force to a then-33-year old female victim (“Victim”) by using his finger to touch her vagina, making skin-to-skin contact and penetrating her vagina, intending to outrage her modesty. The Prosecution described the offence as falling within “the most serious category of cases brought under s 354 of the Penal Code”
[note: 1] and sought an imprisonment term of 22 to 24 months (
ie, close to or slightly below the maximum two-year imprisonment term for this offence), as well as four strokes of the cane. The Defence did not object to the Prosecution’s submissions on caning but contended that the imprisonment term ought to be 18 months.
[note: 2]
2 For the reasons canvassed in this judgment, I order an imprisonment term of 20 months and four strokes of the cane.
Facts
3 The facts contained in this section are summarised from the agreed Statement of Facts that formed the basis of the guilty plea. There is a gag order against publishing anything likely to lead to the identification of the Victim or the location of the offence.
4 The Accused had accompanied the co-accused person (“Co-Accused”) to Location A “to chill”
[note: 3] on the evening of 30 January 2021. The Accused purchased some beer for himself from a convenience store. They went their separate ways when the Accused stopped to speak with an old friend he chanced upon, but the Co-Accused later called the Accused to meet him at a specific shop. They met at that shop at 10.45pm, and the Co-Accused told the Accused that he wanted to approach two “very drunk”
[note: 4] women who were in the shop,
ie, the Victim and her friend (“the Victim’s Friend”). The women were visibly suffering from the effects of the alcohol.
5 When the women left the shop, the Co-Accused and the Accused followed them around Location A. The Accused observed from the women’s gait and demeanour that they were “quite drunk”, while the Co-Accused commented that the Victim “was pretty and seemed drunk”.
[note: 5] They continued to follow the women through an underpass, and loitered in the area when the women went into a public restroom. They followed the women until the women arrived at a bus stop, where the women tried unsuccessfully to hail a taxi or to book a private hire car. Several drivers had refused to pick the women up owing to their drunken condition. The Co-Accused and the Accused went to the car park behind the bus stop, and the Co-Accused moved his car from its parking lot and parked it just behind the bus stop.
6 At around 11.22pm, the Victim’s Friend fell onto the ground from the bench at the bus stop. The Co-Accused and the Accused approached the women and, after some cajoling, convinced them to let the Co-Accused and the Accused take them back to the Victim’s condominium in the Co-Accused’s car. At around 11.28pm, the Co-Accused began driving the group to the Victim’s condominium. Both women vomited during the journey due to intoxication. The tailing of the women and the journey to the Victim’s condominium “left the [Accused] with the impression that [the Co-Accused] intended to make sexual advancements on the women”.
[note: 6]
7 At around 11.45pm, they arrived at the Victim’s condominium. The Accused help the women out of the car, and the Co-Accused joined them after parking his car and cleaning the vomit. At around 11.51pm, the four of them took the lift to the Victim’s apartment. The Co-Accused placed the Victim on the bed, while the Accused placed the Victim’s Friend on the bed beside the Victim. The Accused then went to the ensuite toilet to relieve himself and wash his hands.
8 When he emerged from the toilet, he allegedly saw the Co-Accused holding the Victim’s legs in the air and penetrating the Victim’s vagina with his penis as the Victim lay on the bed. The Victim’s Friend was lying next to them, seemingly unconscious, while the Victim was “passing in and out of consciousness”.
[note: 7] The Co-Accused beckoned for the Accused to join him, and the Accused did. The Co-Accused removed his penis from the Victim’s vagina and began to kiss the Victim’s lips.
9 The Accused observed that the Victim’s eyes were closed, and that she was groaning. He used his finger to touch the Victim’s exposed vagina, making skin-to-skin contact and penetrating the Victim’s vagina. The touch was “deliberate, invasive, and lasted for several seconds”.
[note: 8] He heard the Victim groaning “no”. The Victim did not, and the Accused knew she did not, consent to him touching her vagina.
[note: 9] After a few seconds, the Accused withdrew his hand and left the Co-Accused in the bedroom with the Victim and the Victim’s Friend. At around 12.11am on 31 January 2021, the Accused returned to the carpark and waited for the Co-Accused. The Co-Accused joined him a few minutes later and they drove off.
10 During the drive, the Accused and Co-Accused were concerned that they might get into trouble with the police for their actions. They also made callous and lewd comments about the victim, including the Accused’s comment that the Victim’s vagina was “smelly”.
[note: 10]
11 The Co-Accused subsequently realised that he had dropped his handphone in the Victim’s apartment. The Co-Accused and the Accused returned to the Victim’s apartment to try to retrieve the handphone as they feared that this could lead to the identification of the Co-Accused. They were unsuccessful despite several attempts. The Victim had, in fact, called the police. The Co-Accused and the Accused were subsequently arrested at the Victim’s condominium.
12 The Accused initially faced a charge which attracted a significantly higher sentence which extended to a maximum of 20 years’ imprisonment (s 376(2)(
a) read with s 376(3) of the Penal Code – sexual assault involving penetration). However, he subsequently pleaded guilty to the present charge (which was reduced on condition of a plea of guilt), for which the maximum imprisonment term is two years.
The Law
Section 354(1) of the Penal Code
13 Section 354(1) of the Penal Code provides as follows:
Assault or use of criminal force to a person with intent to outrage modesty
354.—(1) Whoever assaults or uses criminal force to any person, intending to outrage or knowing it to be likely that he will thereby outrage the modesty of that person, shall be punished with imprisonment for a term which may extend to 2 years, or with fine, or with caning, or with any combination of such punishments.
14 This provision was amended with effect from 1 March 2022 to increase the maximum imprisonment term to three years. However, as the offence occurred before this date, the maximum imprisonment term to be imposed in the present case is two years.
The “Two-Step Sentencing Bands” Approach
15 The applicable framework for an offence under s 354(1) of the Penal Code is set out in
Kunasekaran s/o Kalimuthu Somasundara v Public Proecutor [2018] 4 SLR 580 (“
Kunasekaran”). The court adopts a “two-step sentencing bands” approach, as adapted from the contexts of sentencing for rape (see
Ng Kean Meng Terence v Public Prosecutor [2017] 2 SLR 449 (“
Terence Ng”)) and aggravated outrage of modesty (see
GBR v Public Prosecutor [2018] 3 SLR 1048 (“
GBR”)).
16 The first step (“Step One”) involves the court considering
offence-specific factors in ascertaining the gravity of the offence and, based on these, situating the offence within one of three sentencing bands.
17 A non-exhaustive list of offence-specific factors is as follows:
(a) degree of sexual exploitation,
ie, how, where and for how long the accused had touched the victim;
(b) circumstances of the offence, including whether there was premeditation, use of force or violence, abuse of a position of trust, use of deception, presence of other aggravating acts accompanying the outrage of modesty, and exploitation of a vulnerable victim; and
(c) harm caused to the victim, including physical and psychological harm.
18 Relying on the
offence-specific factors, the court situates the offence within the relevant band, and derives an “indicative starting point” within that band which reflects the “intrinsic seriousness” of the offending act (
Terence Ng at [39(a)]). In the context of s 354(1) of the Penal Code, the sentencing bands and their respective indicative ranges of imprisonment terms are tabularly summarised as follows (see
Kunasekaran at [45(b)] read with [49]):
| | Indicative range of imprisonment term |
| One or no offence-specific factors present. Typically, involves a fleeting touch or no skin-to-skin contact, and no intrusion of the victim’s private parts. | Less than 5 months’ imprisonment |
| Two or more offence-specific factors present, including cases involving the use of deception. Lower end of the band involves intrusion of the victim’s private parts without skin-to-skin contact. Higher end of the band involves skin-to-skin contact with the victim’s private parts. | 5 to 15 months’ imprisonment |
| Numerous offence-specific factors present, especially involving exploitation of a particularly vulnerable victim, serious abuse of a position of trust, and/or use of violence or force on the victim. | 15 to 24 months’ imprisonment |
19 To avoid doubt, s 354(1) of the Penal Code does not mandate an imprisonment term. It remains possible that an offence under s 354(1) of the Penal Code is so minor that the imposition of a fine is sufficient (see,
eg,
Kunasekeran at [62], citing
Public Prosecutor v Chow Yee Sze [2011] 1 SLR 481 (“
Chow Yee Sze”) at [12] and the examples quoted therein). However, as the present case clearly crosses the custodial threshold, I say no more on this issue.
20 The foregoing paragraphs address only the indicative ranges of
imprisonment terms. Unlike in
GBR (in the context of an offence under s 354(2) of the Penal Code), the court in
Kunasekaran did not set out indicative ranges for the number of strokes of the cane for offences under s 354(1) of the Penal Code. The court instead observed that the starting point for imposing caning for an offence under s 354(1) of the Penal Code is where the outrage of modesty involves intruding upon the victim’s private parts or sexual organs (
Kunasekaran at [50], citing
Chow Yee Sze at [9] and
GBR at [31]).
21 Having identified the “indicative starting point” for sentencing, the court proceeds to the second step (“Step Two”). Here, the court considers
offender-specific factors,
ie, aggravating and mitigating factors that are personal to the offender. These are not the same as the
offence-specific factors which would already have been considered at Step One (
Terence Ng at [39(b)]). In exceptional circumstances, based on these offender-specific factors, the court may even move outside the indicative ranges for the sentencing band (
Terence Ng at [39(b)]).
22 In
Kunasekeran at [45(c)] (citing
GBR at [39]), the court observed that for the purposes of Step Two analysis:
(a) aggravating factors to be considered include the charges taken into consideration for purposes of sentencing, the accused person’s lack of remorse and the presence of relevant antecedents which demonstrate the accused person’s recalcitrance; and
(b) mitigating factors to be considered include a timeous plea of guilt and the accused person’s mental disorder or intellectual disability that relates to the offence.
23 For completeness, the fact that an offender is a first-time offender or has no known antecedents is neutral: the former does not constitute positive evidence of good character, while the latter is the absence of an aggravating factor (see
Kunasekeran at [65], citing multiple cases).
Decision
24 I now apply the
Kunasekaran framework to the present case.
Step One: Offence-Specific Factors, Sentencing Band and Indicative Starting Point
25 The Prosecution contended that the offence involved “almost every single offence-specific factor identified in
Kunasekaran, other than deception and the use of force or violence”,
[note: 11] and argued that the offence be situated “at the top of Band 3” with an “indicative starting point of 24 months’ imprisonment”.
[note: 12] The Prosecution also sought the imposition of four strokes of the cane.
26 The Defence initially submitted that the offence fell “within the low end of Band 3”.
[note: 13] While the Defence had no quarrel with the imposition of four strokes of the cane, he contended that the imprisonment term ought to be “no more than 18 months”.
[note: 14] At the first hearing, it transpired that the Defence’s indicative starting point was towards the higher end of Band 3 (he variously referred to a starting point of “20 to 22 months” and “22 to 24 months”). The Defence’s argument for an 18-month imprisonment term included a reduction in sentence owing to various mitigatory factors taken into consideration at Step Two, as discussed later in this judgment.
27 I find that the present offence falls within Band 3 of the
Kunasekaran framework, and that the indicative starting point is the maximum 24 months’ imprisonment, for the following reasons.
28 First, the
degree of sexual exploitation was very high. The Accused had made direct skin-to-skin contact with the Victim’s vagina and penetrated her vagina with his finger. The touch was not a fleeting one; the Accused admitted that it was “deliberate, invasive, and lasted for several seconds”.
[note: 15] The sexual exploitation here, involving digital penetration, was higher than in all other precedent cases cited to me for offences under s 354(1) of the Penal Code. See,
eg,
Public Prosecutor v Ran Weidong [2021] SGMC 85 (offender touched victim’s vulva area during massage),
Public Prosecutor v GEU [2022] SGMC 39 (offender kissed victim’s mouth and grabbed and squeezed her left breast both over and under her clothes);
Public Prosecutor v GCT [2018] SGMC 69 (“
GCT”) (offender touched victim’s breast over her brassiere and hip area over her underwear, rubbed her vagina with his finger and rubbed his penis against her buttocks); and
Public Prosecutor v Li Qingdong [2016] SGMC 60 (offender touched victim’s vagina multiple times during massage; this case pre-dated the
Kunasekaran framework).
29 Second, the offence was committed against a
victim in a vulnerable state. In the lead up to the offence, the Victim was inebriated and unable to find transport home – a fact clearly known to both the Accused and Co-Accused. On the Accused’s own account, during the offence, the Victim was “passing in and out of consciousness”,
[note: 16] and allegedly had already been (or was amid being) sexually assaulted by the Co-Accused when the Accused committed the offence. The Victim was unable to protect herself from the Accused’s acts in such a situation.
30 Third, the offence was part of a
group sexual assault. The Accused had assaulted the Victim immediately after the Co-Accused had allegedly penetrated and sexually assaulted her. As observed by the Court of Appeal in the context of group rape, an offence committed by a group of persons – even if not a result of syndicated or planned action – is more serious because the victim suffers greater alarm, trauma and helplessness (
Terence Ng at [44(a)]). Group sexual assaults also generate greater public disquiet and pose a greater threat to social order (
Terence Ng at [44(a)]).
31 Fourth, the offence took place in the
victim’s home. In
GCT, the court found as an aggravating factor that an offence under s 354(1) of the Penal Code occurred in a family-booked chalet, given that such a chalet was “akin to one’s home in which one ought to feel safe, secure and protected” (
GCT at [20(d)]).
A fortiori, it is a significant aggravating factor that the Accused assaulted the Victim on her own bed in her own home. This violation of the “safe sanctuary that should be every home” goes towards a substantial increase in sentence (
Public Prosecutor v CEP [2022] SGHC 15 at [8], in the context of a conspiracy to commit rape).
32 Fifth, the offence (committed in conjunction with the Co-Accused’s alleged sexual assault) caused
significant harm to the Victim. It resulted in her being diagnosed with post-traumatic stress disorder. She has struggled with nightmares and flashbacks of the incident, her relationships with her daughter and friends were affected, and she has had to take time off work.
33 For completeness, I decline to grant weight to the Prosecution’s submission that the offence was “highly premeditated”.
[note: 17] This premeditation factor was strongly contested by the Defence, who argued (based largely on the Accused’s position in the mitigation plea) that it was the Co-Accused who “took the lead”;
[note: 18] that the Accused played only a “[p]assive [r]ole”
[note: 19] and had merely “reluctantly” followed along,
[note: 20] as seen through the Accused’s alleged desire to “go home”
[note: 21] and his “irritat[ion]”
[note: 22] and “annoy[ance]”
[note: 23] with the Co-Accused’s persistence in following the women; and that the offence was committed in a “[f]leeting [m]oment of [f]olly”
[note: 24] as the Accused did not “have any intention to take advantage of either of the two [women] in any way” prior to acting on the “spur of the moment against his better judgment”.
[note: 25] At the first hearing, the Defence submitted that the Accused only thought of touching the Victim when he emerged from the toilet and saw the Co-Accused having sex with her, and therefore that his criminality was limited to that small sliver of time.
[note: 26]
34 The Prosecution did not dispute the Accused’s account as summarised in [33] above. Instead, the Prosecution observed that the account did not qualify the plea of guilt,
[note: 27] and that the Prosecution was not in a position to dispute issues relating to the Accused’s alleged reluctance or annoyance.
[note: 28] That said, while the Prosecution was prepared to accept that the Co-Accused was the chief antagonist, it contended that this did not mean that the Accused had been “dragged along” until the point where he had emerged from the toilet.
[note: 29] Instead, the facts (
eg stalking the women for more than 45 minutes, seizing the opportunity to intervene when the women’s situation grew desperate,
etc) showed that the Accused had “willingly participated participated in every step that led to the offence”.
[note: 30]
35 As the Prosecution did not dispute the Accused’s account, I am unable to arrive at any firm conclusions on the issue of premeditation. That said, this does not mean that the Accused merely played a passive role, or that the offence was committed in a fleeting moment of folly. Even on the Accused’s own account, he had followed the inebriated women around for a substantial period of time, travelled together with the Co-Accused and the women to the Victim’s condominium, and entered the Victim’s apartment and bedroom. He did all of these in circumstances where he knew that the Co-Accused intended to make sexual advancements on the women (see [6] above). Indeed, in his mitigation plea, he further claimed that the Co-Accused had told him that the Victim “was not wearing underwear”
[note: 31] and had shown him “cheeky”
[note: 32] expressions during the car journey and in the lift to the Victim’s Apartment. All of these undermine the Defence’s submission that the Accused had merely played a passive role or committed the offence in a fleeting moment of folly. Ultimately, I grant neither aggravating nor mitigatory weight to the arguments relating to premeditation or passivity of the Accused.
36 The offence-specific factors at [28] to [32] above are sufficient to situate the offence at the highest point of Band 3. Indeed, these factors – taken together – reveal an offence more egregious than any of the precedents cited to me (see [28] above). Even if it may not be the “worst case imaginable”, it belongs to the most serious category of cases under s 354(1) of the Penal Code, and therefore warrants an indicative starting point of the maximum imprisonment term of 24 months (
Public Prosecutor v Firdaus bin Abdullah [2010] 3 SLR 225 at [17]).
Step Two: Offender-Specific Factors
37 I turn next to consider offender-specific factors. The factors raised were generally mitigatory in nature; no aggravating offender-specific factor was expressly raised (save for the callous remark mentioned at [10] above; to be clear, this was raised as an aggravating
offence-specific factor, but it is in my view more appropriately considered as an
offender-specific factor).
38 In mitigation, the Defence submitted that the Accused had pleaded guilty at the earliest possible opportunity; that the Accused was remorseful, regretful and deeply ashamed of his actions; and that he was straightforward, candid and had extended his fullest cooperation to the police.
[note: 33] The Defence also emphasised that the Accused was keen and willing to extend an apology to the Victim, whether in writing or in person.
[note: 34] In relation to the callous remark made by the Accused in the aftermath of the offence, the Defence put this down to “boorish talk” by men “imbibed in alcohol”, rather than indicative of a lack of remorse.
[note: 35]
39 The Prosecution did not expressly object to any of the matters raised in [38]. While the Prosecution argued that the callous remark demonstrated indifference to the gravity of the offence,
[note: 36] the Prosecution accepted that despite the callous remark, the Accused’s remorse could nonetheless be seen through his plea of guilt and cooperation with the authorities.
[note: 37] The Prosecution also acknowledged that the Accused’s antecedents were fairly dated and dissimilar to the present offence.
[note: 38]
40 The main disagreement between the parties concerned the reduction of sentence warranted by the Accused’s guilty plea. As a preliminary matter, both the Prosecution and the Defence agreed that the present case fell within paragraph 12 of the Sentencing Advisory Panel’s “Guidelines on Reduction in Sentences for Guilty Pleas” (“Paragraph 12” and “SAP Guidelines”, respectively). Under Paragraph 12, where there is an amendment of a charge to a different offence, the court may “exercise its discretion to award an appropriate reduction in sentence irrespective of the recommended reductions stipulated in Table 2 [of the SAP Guidelines], subject to a maximum reduction of 30%”. For reference, Paragraph 12 provides:
Where the accused person pleads guilty following an amendment to the charge which has a material bearing on the sentence – such as an amendment of a charge to a different offence or a substantial amendment to the particulars of the charge – the court may exercise its discretion to award an appropriate reduction in sentence irrespective of the recommended reductions stipulated in Table 2, subject to a maximum reduction of 30%. In doing so, the court should take into account factors including: (a) the significance and extent of the amendment to the charge; and (b) the impact of the accused person’s plea of guilt, e.g. on victims and witnesses.
[footnotes omitted]
41 The Prosecution was prepared to accept up to a 2-month reduction in sentence from an indicative starting point of 24 months,
ie, an imprisonment term of 22 months.
[note: 39] The relatively circumscribed reduction was based on two contentions advanced by the Prosecution.
42 The Prosecution’s first contention was that because the Accused had pleaded guilty to a charge that had been reduced on condition of a plea of guilt, “minimal further mitigating weight should be afforded to the accused’s plea of guilt”.
[note: 40] Three main reasons were advanced in support of this contention:
(a) First, the weight that the Court should place on the Accused’s plea of guilt should be “attenuated because the charge was reduced on condition of a plea, which incorporates the
Millberry justifications”.
[note: 41] The “
Millberry justifications” referred to are the oft-cited three reasons for ascribing weight to a plea of guilt,
ie, because the plea (i) can be a subjective expression of genuine remorse and contrition; (ii) spares the victim the ordeal of testifying in court and potentially reliving the incident; and (iii) conserves State resources which would otherwise have been expended had the matter gone to trial – see
Terence Ng at [66], citing
Regina v Millberry [2003] 1 WLR 546.
(b) Second, Paragraph 12 “
explicitly empowers the Court to account for the ‘significance and extent of the amendment to the charge’” (emphasis in original).
[note: 42] Given that the charge has been significantly reduced, there should be minimal mitigating weight afforded to the Accused’s plea of guilt.
[note: 43]
(c) Third,
Public Prosecutor v Chua Ting Fong (Cai Tingfeng)
[2022] SGDC 139 (“
Chua Ting Fong”) and
Public Prosecutor v Vincent s/o Nallusamy [2021] SGDC 293 (“
Vincent s/o Nallusamy”) are examples of cases in which the Court took notice of the original charge and the fact that the charge was reduced on condition of a plea of guilt.
[note: 44]
43 The Prosecution’s second contention was that even with a timely and contrite plea of guilt, there is no entitlement to “a discount of as much as one-quarter to a third of what would otherwise be an appropriate sentence” (citing
Terence Ng at [71]).
[note: 45] Instead, the court must impose punishment that will “fit both the crime and the offender” (citing
Terence Ng at [71]).
[note: 46]
44 The Defence’s response to the Prosecution’s two contentions was that the combined effect of the various mitigating factors (as set out at [38] above) ought not to be “brushed aside simply because [the Accused] was given the benefit of a reduced charge”.
[note: 47] The Defence submitted that the sentence should be no more than 18 months’ imprisonment.
[note: 48]
45 In relation to the Prosecution’s first contention, I decline to circumscribe the mitigatory weight of the Accused’s guilty plea on the mere fact that he had pleaded guilty to a reduced charge. This is for two reasons.
(a) First, in the context of sentencing, the court does not consider prior charges which have since been reduced (see Kow Keng Siong,
Sentencing Principles in Singapore (2nd Ed, 2019) at paragraphs 08.007 to 08.009, citing
Lian Kian Boon v Public Prosecutor [1991] 1 MLJ 51 at 54). Instead, the court determines the appropriate sentence based on the charge that is proceeded upon (
Public Prosecutor v Gaiyathiri d/o Murugayan [2022] 2 SLR 1122 (“
Gaiyathiri”) at [57]). The fact that a charge has been reduced from a graver charge, and the reasons that may have factored into the exercise of prosecutorial discretion resulting in such a reduction, are irrelevant to sentencing (
Gaiyathiri at [57]). For completeness, the cases cited by the Prosecution (
ie,
Chua Ting Fong and
Vincent s/o Nallusamy) do not undercut these principles. In those cases, the court had merely noted that the respective charges had been reduced on condition of a plea of guilt; nothing was said about how the reduction itself meant that the mitigatory weight of the plea of guilt ought to be circumscribed.
(b) Second, Paragraph 12 does not suggest that less mitigatory weight should be accorded to a plea of guilt entered on a charge that had been reduced on condition of the plea. Paragraph 12 merely exhorts the court to consider the “significance and extent of the amendment to the charge” in deciding on an appropriate reduction. This exhortation should be interpreted in view of the principles at [45(a)] above, as well as the SAP Guidelines’ objective of guiding sentencing reductions “based on
when an accused pleads guilty” (emphasis added) (see paragraph 6 of the SAP Guidelines). Interpreted in this light, the “significance and extent of the amendment” is particularly relevant where a guilty plea is entered promptly after a charge is amended at a later stage of proceedings (
ie, in Stages 2, 3 or 4 of Table 2 of the SAP Guidelines). If such an amendment involves a significant reduction of charge, an up-to-30% sentencing reduction may still be considered notwithstanding the suggested percentages for that later stage. Presumably, the accused ought not be disadvantaged in terms of a sentencing reduction if a significant charge reduction occurred in Stages 2, 3 or 4, given that the accused’s considerations on whether to plead guilty may have changed significantly due to the reduced charge. In contrast, if the amendment is merely technical (
eg, to reflect an inconsequential difference in the precise time of the offence), a guilty plea entered promptly thereafter may not warrant an up-to-30% sentencing reduction since there is presumably no significant change to the accused’s considerations on whether to plead guilty.
46 As for the Prosecution’s second contention, this is entirely supported by established principles of sentencing. As observed in
Terence Ng at [71], even a timely guilty plea which clearly indicates contrition does not warrant a formulaic sentencing reduction (
Terence Ng at [71]). The SAP Guidelines neither purport to challenge nor change this principle; nor could they, given that “unlike judicial guidelines, [the SAP Guidelines] are not binding on any court” (see paragraph 2 of the SAP Guidelines).
47 Ultimately, whether and, if so, what discount should be accorded to a plea of guilt is a fact-sensitive matter that depends on multiple factors (
Terence Ng at [71]). For cases involving “especially grave and heinous” acts, the sentencing considerations of retribution, general deterrence and the protection of the public assume “great importance” and cannot be “significantly displaced” merely by virtue of the accused’s plea of guilt (
Terence Ng at [71]). The imposition of an appropriate sentence is a matter of discretion to be exercised judiciously, keeping in mind that the punishment imposed must fit
both the crime
and the offender (
Terence Ng at [71]).
48 I turn now to the appropriate sentence in the present case. Here, all three
Millberry justifications are attracted. The Accused’s plea was an expression of his remorse and contrition, as emphasised by the Defence and not significantly contested by the Prosecution. His plea spared the Victim from having to testify in court on the present charge, and conserved State resources by obviating the need for a trial. For completeness, the Defence attempted to push the second and third
Millberry justifications further on the basis that the Accused will likely serve as a Prosecution witness against the Co-Accused, which may help secure a conviction or encourage the Co-Accused to plead guilty in due course. I decline to grant any weight to this argument as it is speculative in nature.
49 However, despite the presence of all three
Millberry justifications, the present offence is “especially grave and heinous” in view of the matters canvassed at [28] to [32] above. In these circumstances, the Accused’s timely and remorseful plea of guilt does not significantly displace the sentencing considerations of retribution, general deterrence and the protection of the public (see [47] above).
50 Proceeding from the indicative starting point of 24 months’ imprisonment, I find that a sentencing reduction of four months (or about 16-17%) is appropriate. The imprisonment term to be imposed is therefore 20 months.
Conclusion
51 The Accused’s criminal act falls within the most serious types of cases brought under s 354(1) of the Penal Code. It warrants an indicative starting point at the maximum 24-month imprisonment term, as well as the imposition of caning. A four-month reduction of imprisonment term is appropriate in view of the mitigating factors including the early plea of guilt, as balanced against the especially grave and heinous nature of the offence. I therefore order an imprisonment term of 20 months and four strokes of the cane.
[note: 1]Prosecution’s Sentencing Submissions (14 February 2024), at paragraph 27.
[note: 2]Defence’s Plea in Mitigation (19 February 2024), at paragraph 45.
[note: 3]Statement of Facts (31 January 2024), at paragraph 4.
[note: 4]Statement of Facts (31 January 2024), at paragraph 6.
[note: 5]Statement of Facts (31 January 2024), at paragraph 8.
[note: 6]Statement of Facts (31 January 2024), at paragraph 11.
[note: 7]Statement of Facts (31 January 2024), at paragraph 14.
[note: 8]Statement of Facts (31 January 2024), at paragraph 15.
[note: 9]Statement of Facts (31 January 2024), at paragraph 15.
[note: 10]Statement of Facts (31 January 2024), at paragraph 17.
[note: 11]Prosecution’s Sentencing Submissions (14 February 2024), at paragraph 9.
[note: 12]Prosecution’s Sentencing Submissions (14 February 2024), at paragraphs 16-17.
[note: 13]Defence’s Plea in Mitigation (19 February 2024), at paragraph 39.
[note: 14]Defence’s Plea in Mitigation (19 February 2024), at paragraph 45.
[note: 15]Statement of Facts (31 January 2024), at paragraph 15.
[note: 16]Statement of Facts (31 January 2024), at paragraph 14.
[note: 17]Prosecution’s Sentencing Submissions (14 February 2024), at paragraph 11.
[note: 18]Defence’s Plea in Mitigation (19 February 2024), at paragraph 20.
[note: 19]Defence’s Plea in Mitigation (19 February 2024), at p 14.
[note: 20]Defence’s Plea in Mitigation (19 February 2024), at paragraph 22.
[note: 21]Defence’s Plea in Mitigation (19 February 2024), at paragraph 9(iv).
[note: 22]Defence’s Plea in Mitigation (19 February 2024), at paragraph 9(x).
[note: 23]Defence’s Plea in Mitigation (19 February 2024), at paragraph 9(xii).
[note: 24]Defence’s Plea in Mitigation (19 February 2024), at p 14.
[note: 25]Defence’s Plea in Mitigation (19 February 2024), at paragraph 17.
[note: 26]Hearing on 19 February 2024.
[note: 27]Hearing on 19 February 2024.
[note: 28]Hearing on 19 February 2024.
[note: 29]Hearing on 19 February 2024.
[note: 30]Prosecution’s Sentencing Submissions (14 February 2024), at paragraph 11.
[note: 31]Defence’s Plea in Mitigation (19 February 2024), at paragraph 9(xxix).
[note: 32]Defence’s Plea in Mitigation (19 February 2024), at paragraphs 9(xxiii) and 9(xxviii).
[note: 33]Defence’s Plea in Mitigation (19 February 2024), at paragraph 11-15.
[note: 34]Defence’s Plea in Mitigation (19 February 2024), at paragraph 13.
[note: 35]Hearing on 19 February 2024.
[note: 36]Prosecution’s Sentencing Submissions (14 February 2024), at paragraph 14.
[note: 37]Hearing on 19 February 2024.
[note: 38]Prosecution’s Sentencing Submissions (14 February 2024), at paragraph 18.
[note: 39]Prosecution’s Sentencing Submissions (14 February 2024), at paragraph 21.
[note: 40]Prosecution’s Sentencing Submissions (14 February 2024), at paragraph 20.
[note: 41]Prosecution’s Skeleton Submissions (23 February 2024), at paragraph 9.
[note: 42]Prosecution’s Skeleton Submissions (23 February 2024), at paragraph 10.
[note: 43]Prosecution’s Sentencing Submissions (14 February 2024), at paragraph 20.
[note: 44]Prosecution’s Skeleton Submissions (23 February 2024), at paragraph 11.
[note: 45]Prosecution’s Skeleton Submissions (23 February 2024), at paragraph 8.
[note: 46]Prosecution’s Skeleton Submissions (23 February 2024), at paragraph 8.
[note: 47]Hearing on 19 February 2024.
[note: 48]Defence’s Plea in Mitigation (19 February 2024), at paragraph 45.
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