Singapore’s apex court recently laid down a new sentencing framework for rape offences in Ng Kean Meng Terence v Public Prosecutor . Noting that it was time to review the current state of sentencing laws with regard to rape offences, Chief Justice Sundaresh Menon and Justices of Appeal Chao Hick Tin and Andrew Phang laid down the law in their 60 page decision in early May 2017.
This represents a significant shift from the previous sentencing framework, which Singapore criminal lawyers are very familiar with, laid down 10 years ago in the seminal case of Public Prosecutor v NF . The new sentencing framework is broadly based off the “two-step sentencing bands approach” as laid down in the New Zealand Court of Appeal case of R v Taueki.
Ng Kean Meng Terence v Public Prosecutor  SGCA 37
Public Prosecutor v NF  4 SLR(R) 849
R v Taueki  3 NZLR 372
The new framework
The new framework is as follows:
- Classification of the offence and identifying the sentencing band the offence in question falls within, by considering “offence-specific” factors. Once the sentencing band is identified, the court will then determine precisely where within that range the present offence falls in order to derive an “indicative starting point“.
- Calibrating the appropriate sentence by having regard to “offender-specific” factors, which are personal to the offender.
Step 1a: Classification of the offence
In this step, the court will have regard only to the “offence-specific” factors. These factors are those which relate to the circumstances of the offence and will be crucial in the court’s finding of an appropriate sentencing band. Several “offence-specific” factors were outlined by the court, a non-exhaustive fashion, as listed below:
|S. No.||“Offence-specific” factor||Description|
|1||Group rape||Offences which are committed by groups of persons, even if not the product of syndicated or planned action, are more serious.|
|2||Abuse of position and breach of trust||Where the offender is in a position of responsibility towards the victim (for example in a doctor-patient or teacher-student relationship), when such an offender commits rape it is especially heinous due to the violation of the trust placed in him by society and the victim.|
|3||Premeditation||The presence of planning and premeditation shows a considered commitment towards law-breaking. Examples include the use of drugs to reduce the victim’s resistence or arranging to meet the victim in a secluded area under a false pretence.|
|4||Violence||Under s 375(3) of the Penal Code, the actual or threatened use of violence in the course of rape is a statutory aggravating factor.|
|5||Rape of vulnerable victim||The rape of a victim who is especially vulnerable because of age, physical frailty, mental impairment or learning disability.|
|6||Forcible rape of a victim below 14||The policy of the law is that a female under 14 cannot consent to sexual activity, and if the victim did not consent, the offence is particularly serious.|
|7||Hate crime||The commission of rape as an expression of racial or religious prejudice is especially despicable.|
|8||Severe harm to victim||Where the rape results in especially serious physical or mental effects on the victim (such as pregnancy or the transmission of a serious disease).|
|9||Deliberate infliction of special trauma||Where there is deliberate infliction of special trauma or where there is a rape by a man who knows he is suffering from a life-threatening sexually transmissible disease.|
Step 1b): Identifying the sentencing band the offence falls within
The following sentencing bands prescribe ranges of sentences which define the range of sentences usually imposed for a case with those offence-specific features.
|S. No||Sentencing band|
|1||Band 1 comprises cases at the lower end of the spectrum of seriousness which attract sentences of 10–13 years’ imprisonment and 6 strokes of the cane.
Such cases feature no offence-specific aggravating factors or are cases where these factors are only present to a very limited extent and therefore have a limited impact on sentence.
|2||Band 2 comprises cases of rape of a higher level of seriousness which attract sentences of 13–17 years’ imprisonment and 12 strokes of the cane. Such cases would usually contain two or more offence-specific aggravating factors|
|3||Band 3 comprises cases which, by reason of the number and intensity of the aggravating factors, present themselves as extremely serious cases of rape. They should attract sentences of between 17–20 years’ imprisonment and 18 strokes of the cane.|
The court will first identify the appropriate Band and then determine precisely where within the range the “indicative starting point” for sentencing is, keeping in mind the “offence-specific” factors.
Step 2: Calbrating the appropriate sentence
In the second step, the court will consider the aggravating and mitigating factors personal to the offender to calibrate the appropriate sentence for that offender. The following “offender-specific” factors relate to the offender’s particular personal circumstances and the court will clearly articulate the factors it has taken into consideration as well as the weight which it is placing on them.
|S. No.||“Offender-specific” aggravating factor||Description|
|1||Evident lack of remorse||For example if the offender conducts his defence in an extravagant and unnecessary manner.|
|2||The presence of relevant antecedents||If the antecedent offence(s) was the same as that of the proceeded charge, the sentence might be more severe.|
|3||Offences taken into consideration for the purposes of sentencing||This can be demonstrated by, among other things, cooperation with the police.|
|“Offender-specific” mitigating factor”|
|4||Display of evident remorse||For example, where the offender apologises after the incident.|
|5||Youth||The youth of the offender, and in turn his rehabilitation, is a pertinent consideration.|
|6||Advanced age||Although the advanced age of an offender is not generally a factor that warrants a sentencing discount, the courts do keep in mind that the imposition of substantial custodial terms deprives he elderly of a larger fraction of their expectation of life.|
The Court of Appeal also discussed the mitigating value of a plea of guilt and deemed that it should be assessed in terms of (i) the extent to which it is a signal of remorse; (ii) the savings in judicial resources; and (iii) the extent to which it spared the victim the ordeal of testifying.
The new Singapore framework, modelled after the Taueki methodology, has been lauded for bringing clarity, transparency, coherence, and consistency to our current state of rape sentencing laws. This is a positive change in the right direction and all that remains is to wait and see how our judiciary applies this new framework in the years to come.