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PublicProsecutorv Ng Jun Xian


[2015]SGDC317

Therearenorelateddocumentsforthis
case

Litigation References

Case References
Referring

: DAC920151of2015&ORS

DecisionDate

: 16November2015

Tribunal/Court

: DistrictCourt

Coram

: MathewJoseph

CounselName(s) : DeputyProsecutorZhangHongchuanfortheProsecutionMrARajandranforthe
Accused
0

Therearenocasesreferringtothis
document

Referredto

CaseNumber

Parties

16November2015
8
DistrictJudgeMathewJoseph:

Legislation Referred To
Background

Local

CriminalProcedureCode(Cap68,2012
RevEd)s9(3)

1Theaccusedis20yearsoldandwasaNationalServicemanatthetimeofhisoffences.Hehad
pleadedguiltyto3chargesandwasconvictedandsentencedto7yearsimprisonmentand6strokesof
the cane for 2 sexual offences and a further 2 weeks imprisonment for a charge of riotous behaviour.
BoththeaccusedandtheProsecutionhaveappealedagainstthissentence.

MiscellaneousOffences(PublicOrderand
Nuisance)Acts20

Charges

PenalCodes34,s354A(1),s375(1)(a),
2Theaccusedwasconvictedonthefollowingthreecharges:

s375(1),s375(3)(a)(i),s376(1)(a),
s376(2),s376(2)(a),s376(3),s376(4),
s376(4)(a)(i),s376(4)(a)(ii),s376(4)(b),

DAC9201512015

s385,s392,s457,s511
ViewAll

Foreign

Help

You,arechargedthatyou,on8thdayofNovember2014ataround5am,atHotel81Lavender
Streetroomnumber304,Singapore,whileintheroom,didsexuallypenetratewithyourindexand
middle finger of the left hand, the vagina of one B, female, then 22 years old (D.O.B.: 5th
February1992),withoutherconsent,andyouhavetherebycommittedanoffenceunderSection
376(2)(a)andpunishableunderSection376(3)ofthePenalCode(Cap224,2008RevEd).

Other References
DAC9201522015
You, are charged that you, on the 8th day of November 2014 at around 5am, at Hotel 81
Lavender Street room number 304, Singapore, did attempt to penetrate, with your penis, the
vaginaofoneB,female,23yearsold,dateofbirth:5thFebruary1992,withoutherconsent,to
wit,byrubbingyourpenisoutsidehervaginaandtryingtoinsertyourpenisintohervagina,and
youhavetherebycommittedanoffencepunishableunderSection375(1)(a)andpunishableunder
Section375(2)readwithSection511ofthePenalCode(Cap224,2008RevEd).
MAC9067582015
You,arechargedthatyou,on22ndNovember2014atabout1.45am,atJDPublocatedatNo
5001BeachRoad#0157/61,GoldenMileComplex,Singapore,whichisapublicplace,didbehave

inariotousmanner,towit,byparticipatinginafightincludingatleast5otherpersons,throwinga
chairatoneofyouropponentsandthrowingpunches,andyouhavetherebycommittedanoffence
under Section 20 of the Miscellaneous Offences (Public Order and Nuisance) Act (Cap 184,1997
RevEd).
TheFacts
3TheStatementofFactsinrelationtothe3chargesproceededwithissetoutbelow
1.Theaccusedpersonis Ng Jun Xian , a 20 years old male, Chinese/Singapore Citizen, NRIC:
xxx.Heiscurrentlyunemployed.
2.ThevictimisB,23yearsoldfemale/Taiwanese.Shewasatourist(socialvisitpassholder)in
Singaporetovisitherboyfriend.
FactsleadingtoDAC9201512of2015
3. The victim is B, a 23yearold female, a Taiwanese. At the material time of the incident, the
victimwasatourist(socialvisitpassholder)inSingaporetovisitherboyfriend.
4.Thewitnessesare:
a) A2: Ng Chee Ngee, a 21yearold male ( Ng ). He is the offenders friend who was
outsidethehotelroomwhentheattemptedrape/sexualassaulttookplace.
b)A3: Ng WengFai,a29yearoldmale(counterstaff).Hewasthecounterstaffonduty
whentheaccusedcheckedintoHotel81Lavender.
5. A few weeks before 8 November 2014, the victim met the offender in Club Sonar, located at
Orchard Hotel, 442 Orchard Road, Singapore. When they first met, they were there respectively
withtheirownfriendsfordrinks.Theyexchangednumbersonthatoccasion.
6.On8November2014,sometimebefore2.30am,theaccusedmessagedthevictimbysending
heratextmessageaskingtomeetheratClubSonarlocatedatOrchardHotel,442OrchardRoad,
Singapore (Club Sonar). The victim agreed and proceeded there. The accused was with his
friend, Ng .
7.Sometimeafter2.30am,thevictimmetupwiththeaccusedand Ng .Threeofthemhaddrinks
and enjoyed the music at Club Sonar. At about 4am, the victim wanted to return back to her
hostel,MoriHostel,locatedat429RaceCourseRoad.However,theaccusedstatedthathewould
send her to a hotel so that she may rest there instead. The victim was initially reluctant but
eventuallyobligedaftertheaccusedassuredherthatshewouldbeleftaloneinthehotelroomto
sleep.
8. The accused, the victim and Ng then got on to a taxi and the accused directed the taxi to
proceedtoHotel81,locatedat85LavenderStreet,Singapore(thehotel).
9.Whenthreeofthemarrivedatthehotel,theaccusedandthevictimthenwenttothecounterto
register for a hotel room, while Ng was smoking outside the hotel. Before the accused and the
victim went to the room, the accused had told Ng to wait at the hotel lobby. As the accused
forgot to bring any identification documents, he had borrowed Ng s SAF 11B (SAF NRIC) to
registerfortheroom.Theaccusedandthevictimproceededtoroom#0304.
10. When the accused and the victim reached the said hotel room, the victim laid down on the
bed.Shetoldtheaccusedthatshewantedtorestandaskedhimtoleavetheroom.However,the
accuseddidnotleavetheroomandtriedtokissheronherlips.Shewasshockedandthusbithis
lip.Theaccusedalsotouchedthevictimsbuttockstwice.Theaccusedthenpushedherdownon
the bed. He forcefully and successfully took out her nu bra from her top and squeezed her left
breast.Thevictimputupahardstruggleandkeptshoutingbuyao,buyao,biepengwo(dont
wantdontwant,donttouchme).Shealsobithimalloverhisbodyduringthestruggle.
11.Thevictimsshoutsofbuyao,buyao,biepengwo(dontwantdontwant,donttouchme)
wereheardby Ng whohadproceededtothehotelroomafterasmoke.Uponhearingthevictims
shouts, Ng kept knocking on the hotel door and shouting the accuseds name but there was no
response.
12.Theaccusedtriedtocoverthevictimsmouthwithhishand.Shecouldnotescapeashewas
sittingontopofher.Theaccusedturnedthevictimsbodyaroundsuchthatherfacewasfacing
thebed.Hegrabbedherwaistandforcefullypulleddownherpants,withherpantiesalsopulled
downtogether.Thevictimfelttheaccusedinsertingafewfingersanddigitallypenetratingher23

times. The accused admitted that he used the index and middle fingers of his left hand to
penetratethevictimsvagina.
13.Theaccusedthenunzippedhisjeans,andtriedtoinserthispenisintohervagina.Thevictim
could feel the accuseds penis rubbing and thrusting towards the outside of her vagina from the
back.However,theaccusedspenisdidnotsuccessfullyenterhervagina.
14. The victim continued struggling and successfully pushed the accused off the bed. Due to the
struggle, the victim suffered several bruises on her hands, face, arms and legs. After she broke
free,sherantowardsthedoor.However,theaccusedgotup,caughtherandslappedherhardon
herleftcheekonce.Shefeltgiddyandhepushedhertothebed.Theycontinuedtostruggleand
thevictimtookacoffeecupandthrewitathim.Shortlyafterthis,hestoppedstrugglingwithher
andsuddenlykneltdowninfrontofherandapologised.
15.Whiletheaccusedwaskneelingdown,thevictimquicklyworeherclothes.Shewentoutofthe
roomandtookataxitoleavethehotel.Thecounterstaffalsosawthevictimcomingdownfrom
theliftaloneandnoticedthatthevictimwascryingandherfacewasredandswollen.
16.Thereafter,thevictimlodgedapolicereportonthesamemorning,atabout8.29am.
Medicalevidenceandphotosofvictimsinjuries
17. The victim was sent for medical examination at KK Womens and Childrens Hospital on the
samedayoftheincident.Themedicalreportdated19November2015byDrKarunaMaryLional
ofKKWomensandChildrensHospitalstatesthefollowinginjuries:
a)Bruisingoverherleftcheek
b)Chippedleftfronttooth
c)4cmcutoverherleftupperarm
d)Skinexcoriation(chafing)onher4thinterphalangealjoint(finger),and
e)Bluishdiscolorationontheleftshinandkneeandrightshin.
18.Photoswerealsotakenofthevictimsinjuriesonthesameday(seeAnnexAbelow).
19.Theaccusedwasarrestedon8November2014pursuanttothevictimspolicereport.
Duringpoliceinvestigations,theaccusedinformedthatheformedtheintentiontorapethevictim
whenheenteredtheroomandsawherlyingonthebed.Hehadastrongsexualdriveandurge
andwantedtohavesexwithher.
20.Byvirtueoftheforegoing,theaccusedhadcommittedoffencesof:
a)sexualassaultbypenetrationunders376(2)(a)punishableunders376(3)ofthePenal
Code(Cap224,2008RevEd)and
b)attemptedrapeunders375(1)(a)andpunishableunders375(2)readwiths511ofthe
PenalCode
21.Shortlyaftercommittingtheabovementionedoffences,theaccusedwasarrestedagainon22
November2014forthefollowingMACcharge.
FactsrelatingtoMAC906758of2015
22. The complainant is Pang Chee Wee, male/43 years old, Singaporean. He is the owner of JD
PublocatedatNo5001BeachRoad#0157/61,GoldenMileComplex,Singapore(JDPub).
23.Theothercoaccusedpersonsare:
a)B1JeremyOngJia Jun ,male/20yearsold,NRICxxx
b)B2CherZeEnDouglas,male/25yearsold,NRICxxx
c)B3WuWaiChung,male/24yearsoldNRICxxx

d)B4AngWeiLong,male/22yearsoldNRICxxx
e)B5GohKokSeng,male/18yearsoldNRICxxx
24.On22November2014ataround1.47am,policereceivedacallstatingthereisafightatJD
Pub.
25. Investigation revealed that on 22 November 2014 at about 12.10 am, the accused together
with2ofhisfriends,B1andoneAlvinLim(male/22yearsold,NRIC:xxx),patronizedJDPub.The
pubwasrathercrowded.TheaccusedandhisfriendssattogetherwithB2andB3whowerebriefly
acquaintedwithB1,andsomeothers.B4andB5werealsoatthesamepubseatedwiththeirown
friends. There was a separate group of more than 10 Chinese patrons seated having a birthday
celebration.
26.Whiletheaccusedandhisfriendsweredrinking,anunknownChinesepatronfromthegroup
having birthday celebrations confronted B3 and punched him. A fight then started between the
group consisting of the accused, B1, B2 and B3 and the group of patrons having birthday
celebrations. B4 and B5 claimed they were also attacked in the midst of the fight and retaliated
againstthepersonswhoapparentlypunchedthem.
27. The accused admitted that he had participated in the fight by throwing a chair at one of his
opponents.B4alsoidentifiedtheaccusedasthepersonwhohadpunchedhim.
28. The club bouncers intervened shortly to break up the fight and the police were alerted. The
accusedwasarrestedbythepolice.
29.B1toB5willbedealtwithseparately.
30.Theaccusedadmitstothefactsabove.Byvirtueoftheforegoing,theaccusedhadbehavedin
a riotous manner, and thus committed an offence punishable under Section 20 of the
MiscellaneousOffences(PublicOrderandNuisance)Act(Cap184,1997RevEd).
TICCharges
4Twochargesasbelowweretakenintoconsiderationforthepurposesofsentencing:
MAC9047772015
You,arechargedthatyou,onthe8thdayofNovember2014atabout5am,atHotel81Lavender
Streetroomnumber304,Singapore,didusecriminalforcetooneB,female,22yearsold,dateof
birth:5thFebruary1992,knowingittobelikelythatyouwilltherebyoutragethemodestyofthe
saidB,towit,byusingyourlefthandtosqueezethesaidBsbareleftbreast,andtouchingher
left buttock using your left hands twice, and you have thereby committed an offence punishable
underSection354(1)ofthePenalCode(Cap224,2008RevEd).
MAC9047782015
You,arechargedthatyou,onthe8thdayofNovember2014atabout5am,atHotel81Lavender
Street room number 304, Singapore, did voluntarily cause hurt to one B, Female, 22 years old,
dateofbirth:5thFebruary1992,towit,byslappingherleftcheekusingyourrighthand,andyou
have thereby committed an offence punishable under Section 323 of the Penal Code (Cap 224,
2008RevEd).
ConsenttobetriedinDistrictCourt
5TheoffencesinDAC9201512015andDAC9201522015areordinarilytriableintheHighCourt
pursuant to the First Schedule of the Criminal Procedure Code (Cap 68, 2012 Rev Ed) (CPC). The
Prosecutionhadappliedundersection9(3)oftheCPCtohavethecasetriedintheDistrictCourts.The
accusedhadsogivenhisconsent.
DATACharge
6Theaccusedhadalsofacedacharge(DAC929900/2014)ofextortionunders.385ofthePenal
Code. However, after his conviction on the proceeded charges, the Prosecution applied for a DATA in
respectofthischarge.Accordingly,IorderedaDATAforthischarge.
Antecedents
7Attheageof15plusyears,theaccusedwasplacedon24monthsProbationbytheJuvenilecourt

in2010forrobbery,togetherwithtimerestrictionsand150hoursofcommunityservice.In2014,while
undergoingNationalService,hewasplacedon4weeksSAFdetentionfordishonestmisappropriationof
SAFproperty.
ReformativeTrainingReport
8Inviewoftheaccusedsage,CounselurgedthecourttoconsiderRTCinsteadofimprisonment.
TheProsecutionobjectedtothecallingofapresentencereport.However,inviewoftheaccusedsage
andantecedents,Inonethelessexercisedmydiscretiontocallforapresentencereporttoconsiderhis
suitability for Reformative Training. The RTC report stated that he was in generally good physical
conditionandwassuitabletoundergoRTC.
Mitigation
9Atage20years,theaccusedwasayouthfuloffender.Counselsubmittedthatastheaccusedwasa
youthful offender, rehabilitation was the paramount sentencing principle to apply. Counsel urged the
courtthereforetoorderthattheaccusedundergoreformativetraininginsteadofimprisonment.
SubmissionsbyProsecution
10TheProsecutionemphasizedthattheaccusedhadbeenconvictedofseriousandheinousoffences.
The Prosecution submitted that deterrence and not rehabilitation, was the primary sentencing
consideration. The Prosecution therefore urged the court to impose a global sentence of 9 years
imprisonment and caning of 10 strokes in total for the sexual offences and a further 23 weeks
imprisonmentfortheriotousbehaviouroffence.
PrescribedPunishment
11 The prescribed punishment for sexual assault by penetration under section 376(2)(a) read with
section 376(3) of the Penal Code is imprisonment for a term which may extend to 20 years, and also
liabletofineorcaning.
12 The prescribed punishment for rape under section 375(1)(a) read with section 375(1)(2) of the
PenalCodeisimprisonmentforatermofnotmorethan20yearsandfineorcaning.Undersection511
of the Penal Code, whoever attempts to commit an offence under the Code shall, where no express
provisionismadebythePenalCode,bepunishedwithsuchpunishmentasisprovidedfortheoffence.
However,thelongesttermofimprisonmentthatmaybeimposedundersection511shallnotexceed,in
thecaseofanoffencenotpunishablewithimprisonmentforlife,onehalfofthelongesttermprovided
for the offence. In this case, therefore, the longest term of imprisonment that may be imposed for
attemptedrapewouldbe10years,whichisonehalfofthemaximumtermof20years,andalsoliableto
fineorcaning.
13Theprescribedpunishmentforafirstoffenderforriotousbehaviourinpublicundersection20of
theMOA,witheffectfrom1April2015,isafineof$2,000ortoimprisonmentforatermnotexceeding
6 months or to both and, in the case of a second or subsequent conviction, to a fine not exceeding
$5,000ortoimprisonmentforatermnotexceeding12monthsortoboth.Priorto1stApril2015,the
prescribedpunishmentwasafineof$1,000ortoimprisonmentforatermnotexceedingonemonthand,
inthecaseofasecondorsubsequentconviction,toafinenotexceeding$2,000ortoimprisonmentfor
atermnotexceeding6months.
KeyIssueReformativeTrainingorImprisonment
14TheProsecutionsubmittedthatinviewoftheseriousnessofthesexualoffencescommittedbythe
accused and his antecedents, rehabilitation had to give way to deterrence. It was submitted that the
accusedshouldbesentencedtoimprisonmentinsteadofRTC,whichwouldbemanifestlyinadequate.
SentencingConsiderations
15 It is trite that rehabilitation is the dominant sentencing consideration in dealing with youthful
offenders. In PP v Mok Ping Wuen Maurice 1998 3 SLR 439, Yong Pung How CJ stated succinctly as
follows
21. Rehabilitation is the dominant consideration where the offender is 21 years and
below.Youngoffendersareintheirformativeyearsandchancesofreformingtheminto
lawabiding adults are better. The corrupt influence of a prison environment and the bad
effects of labelling and stigmatisation may not be desirable for young offenders. Compassion is
often shown to young offenders on the assumption that the young dont know any better and
they may not have had enough experience to realise the full consequences of their actions on
themselvesandonothers.Teensmayalsobeslightlylessresponsiblethanolderoffenders,being
more impressionable, more easily led and less controlled in their behaviour. However, there is
no doubt that some young people can be calculating in their offences. Hence the court

willneedtoassessthefactsineverycase.
(Emphasisadded)
16Fromtheabove,itisalsoclearthattheCourtshavemadeitclearthatthisisnotalwaysthecase
andthattherehabilitativesentencingprinciplecanbedisplacedinappropriatecases.Thiswassostated
inPP v Mohammad AlAnsari bin Basri[2008] 1 SLR(R) 449(AlAnsari), where V K Rajah JA (as he
thenwas)acceptedthatrehabilitationwouldgenerallybethedominantconsideration.However,RajahJA
alsoheld
77 Accordingly, in dealing with sentencing young offenders involved in serious offences, I
proposethefollowinganalyticalframework.First,thecourtmustaskitselfwhetherrehabilitation
can remain a predominant consideration. If the offence was particularly heinous or the
offenderhasalonghistoryofoffending,thenreformandrehabilitationmaynotevenbe
possible or relevant, notwithstanding the youth of the offender. In this case, the
statutorily prescribed punishment (in most cases a term of imprisonment) will be
appropriate.
(Emphasisadded)
17Itisthuspatentlythecasethatiftheoffencewasparticularlyheinousortheoffenderhadalong
historyofoffending,thenreformandrehabilitationmaybedisplacedandmightnotevenbepossibleor
relevant,notwithstandingtheyouthoftheoffender.
18InotethatinAlAnsari,RajahJAhadcitedthecaseofPPvMohamedNohHafizbinOsman[2003]
4SLR(R)281(MohamedNohHafizbinOsman)asaclearexampleofacasewheretheoffence
was so serious and the actions of the offender so outrageous that rehabilitation had to be
subordinated to some more serious form of corrective punishment.InMohamed Noh Hafiz bin
Osman,theoffender,a17yearoldmale,pleadedguiltytotenchargesfourforaggravatedoutrageof
modesty,twoforrape,threeforunnaturalsexchargesaswellasonecountofrobberyarisingfromthe
attacks.Hehadfollowedyounggirlsintoliftsofpublichousingestatesastheywereheadinghomealone.
Whentheyemergedfromthelift,heattackedthemfrombehind,coveredtheirmouthsandpulledthem
tothestaircaselandingswherehemolestedthem.Theoffenderalsoadmittedtonineteenothersimilar
charges and consented to having them taken into consideration in sentencing. Tay Yong Kwang J
sentencedtheoffenderto20yearsimprisonmentand24strokesofthecane
19 At the same time, I accept that the accuseds sexual offences are not as numerous as that in
MohamedNohHafizbinOsmanandhiscaseinvolvesasinglevictim.Iamoftheviewhoweverthatthe
nature and manner of the commission of the sexual assault offences in this case, were sufficiently
serioustoplacetheaccusedinasimilarcategoryasinMohamedNohHafizandwhichnecessitatedthat
amoredeterrentformofpunishmentthanreformativetrainingbeimposed.
20 Another case involving a youthful offender was the case of PP v Muhammad Shafie bin Ahmad
Abdullahandothers[2011]1SLR325.Here,fiveyoungoffenders,aged17to19yearsold,hadpleaded
guilty to a reduced charge of aggravated outrage of modesty under section 354A(1) of the Penal Code
with some other charges taken into consideration by the court. They were originally variously charged
under sections 375(1)(a), 376(1)(a) and 376(2)(a) of the Penal Code for rape and sexual assault by
penetration of the victim. The victim, 17 years old at the material time, had been drunk and had
consensualsexwithoneoftheoffenders.Subsequently,alltheoffendersstrippedthevictimnakedand
took turns to sexually assault the victim by penetrating her mouth and vagina concurrently with their
penises without her consent. Notwithstanding the accused persons young age, and a submission by
Counsel forreformativetraining, they were all sentenced to imprisonment terms ranging from 3.5 to 5
yearsandanappropriatenumberofstrokes.
21Inpassingsentence,ChanSengOnnJwasoftheviewthatprobationorreformativetrainingwould
be excessively lenient under a section 354A(1) charge, and that deterrence should be the dominant
sentencingconsideration.ChanJalsostatedthat:
22[]Youngagedoesnotperseautomaticallyattractrehabilitationasthedominant
sentencing consideration in all cases . In this regard, it is useful to reproduce the relevant
segmentfoundinSentencingPrinciplesinSingapore([15]supra)atpara22.008:
Althoughrehabilitationisanimportantsentencingobjectiveforyoungoffenders,itisnotthe
sole or overriding consideration. Deterrence, protection and retribution are still relevant
considerations.ThisisclearwhentheHighCourtremindedinPublicProsecutorvMokPing
WuenMaurice[1999]1SLR138at[25]that[t]hereisaneedtostrikeabalancebetween
publicinterestandtheinterestoftheoffender.Courtshavetheresponsibilitytosafeguard
theinterestsofthelawabidinggeneralpublicandofapplyingthelawuniformlytoallthose
who violate it: Fay v Public Prosecutor [1994] 2 SLR 154 at [17]. Thus, where the
offence is so serious and the actions of the offender so contemptible and
committed with shocking audacity, the rehabilitative principle should be
subordinatedtotheothersentencingprinciples.

23 It cannot be accepted that the Offenders conduct during the commission of the Offence was
notparticularlyheinous.[]Therecanbenooneformulaforascertainingthegravityand
reprehensibility of an offence and every offence must be considered in light of its own
circumstances.Needlesstosay,itfollowsthatabsenceofphysicalviolencecannotbyitselfbe
thecontrollingfactorforthepurposeofdeterminingthataparticularoffenceisnotheinous.
24Ontheforegoingbases,thedominantconsiderationforsentencinginthepresentcaseshould,
astheProsecutionrightlypointedout,thereforebedeterrenceinorderforthepublicinterest
to be properly served by communicating societys aversion to the grave criminal acts
committedbytheOffendersdespitetheiryoungage.
[Emphasisadded]
22Theissueofthedominantsentencingprincipletoapplyinthecaseofayouthfuloffenderwasre
visited in a very recent decision. In the case of PP v Koh Wen Jie Boaz 2015 SGHC 277, Sundaresh
MenonCJstated
30Butrehabilitationisneithersingularnorunyielding.Thefocusonrehabilitationcanbe
diminished or even eclipsed by such considerations as deterrence or retribution where
the circumstances warrant. Broadly speaking, his happens in cases where (a) the offence is
serious, (b) the harm caused is severe, (c) the offender is hardened and recalcitrant, or (d) the
conditionsdonotexisttomakerehabilitativesentencingoptionssuchasprobationorreformative
trainingviable
34. I cite these as examples to illustrate the point that at the first stage of the sentencing
inquiryforyouthfuloffenders,thecourtisconcernedwithathresholdquestionwhichis
whether rehabilitation retains its primacy in the sentencing matrix . As I have noted
above,itmaybefoundnottobesoonaccountofoneormoreofsuchfactorsastheharm
caused, the gravity of the offence, the background of the offender and the conditions
essentialtorenderrehabilitativeoptionsviable.
(Emphasisadded)
23Itisclearfromtheabovepassage,thatitisnotinevitableorthedefaultpositionthatthedominant
sentencingprincipleinthecaseofyouthfuloffendersiswithoutexception,theprincipleofrehabilitation.
Rehabilitationcanbedisplacedwhere(a)theoffenceisserious,(b)theharmcausedissevere,(c)the
offenderishardenedandrecalcitrant,or(d)theconditionsdonotexisttomakerehabilitativesentencing
optionssuchasprobationorreformativetrainingviable.
24Onthefactsofthiscase,Iamoftheviewthatthethresholdquestionofwhetherrehabilitation
retains its primacy in the sentencing matrix is to be answered unequivocally in the negative. The
sexual assault by digital penetration and the attempted rape offences were clearly serious and heinous
offences. In addition, the offences were committed in a manner that was both outrageous and
shockinglyaudacious.TheaccusedcunninglybroughtthevictimtoHotel81andtothebedroom,where
he tried to kiss her. The victim refused and bit his lip. The accused persisted in his unsolicited sexual
advancesandwentontomolestthevictim.Hepushedherontothebed,whileshestruggledwithhim.
Theordealcontinuedandtheaccusedthensatontopofheronthebed.Hethencoveredhermouthwith
his hand and then went on to commit the sexual assault by digital penetration and attempted rape. It
wascleartomethatinthesecircumstancesandalthoughtheaccusedwasonly20yearsoldatthetime,
rehabilitationwasdisplacedbytheneedfordeterrencetocometothefore.
TheAppropriateSentence
SentencingPrecedentsforsexualassaultbypenetration
25 The Prosecution submitted that reformative training would not be appropriate but asked for
imprisonmentinstead.Intheirsubmissions,theProsecutionurgedthecourttoimposeaglobalsentence
of9yearsimprisonmentand10strokesofthecaneforthesexualassaultandattemptedrapeoffences.
Theysubmittedasfollows:
10. The Prosecution submits that reformative training would be manifestly inadequate in this
case,giventheaccusedsantecedentsandtheseverityoftheoffencescommitted.Further,based
on the facts of the case and the available sentencing precedents for similar offences, the
ProsecutionurgesthisHonourableCourttoimposeaglobalsentenceof9yearsimprisonmentand
10 strokes of the cane on the accused for the sexual offences, and a term of 23 weeks
imprisonmentfortheriotousbehaviouroffence...
31 The Prosecution has tendered tables of sentencing precedents relating to all 3 proceeded
chargesatthementionon12August2015.TheyarealsoattachedtothesesubmissionsatAnnex
A.TheProsecutionisseekingaglobalsentenceof9yearsimprisonmentand10strokes
of the cane for the sexual offences. The Prosecution will proceed to elaborate on the
precedents and supplement the tendered precedents where applicable for each of the proceeded

offences.
(a)Offenceofattemptedrape
32TheProsecutionisseekingasentenceof4yearsimprisonmentand4strokesofthecane
for the offence of attempted rape. In the table of precedents for sexual offences, where the
offendersareofequalorworseculpability,theprecedentsgenerallyrevealasentencebetween4
6yearsimprisonmentwith46strokesofthecane.
33 The Prosecution submits that PP v Muhammad Iskandah bin Suhaimi [2010] SGDC 60 is the
mostinstructiveonthepresentsetoffacts.Theoffenderandthevictimwereacquaintedasthey
hadapriorsexualrelationship,andtheoffenderhadgainedentrytothevictimsresidenceunder
the pretense of needing to use the bathroom. The offender started making unwanted advances
and dragged the victim to the bedroom, pushed her onto the bed and went on top of her. The
victim put up a violent struggle, biting the accused andeventually managing to kick the offender
off the bed. The court noted that the offender had persisted to try and have sexual intercourse
withthevictim,andonlyceasedafterhehadlosthiserectionandinthefaceofstrongresistance
from the victim. The offender had unrelated antecedents, and received a sentence of 4 years
imprisonmentand6strokesofthecane.
Inthepresentcase,therewasnohistoryofsexualrelationsbetweenthevictimandtheaccused
theyhadonlymetafewweeksbeforetheincidentandthevictimhadinfactexplicitlyrejectedhis
advancesonher.Undeterred,theaccusedpersistedinhisattempttohavesexualintercoursewith
thevictimandonlyceasedinthefaceofstrongresistancefromthevictim,andperhapsduetothe
interventionbyhisfriend Ng .
34InPPvOngZhangSui(CriminalCase16of1994,unreported),theoffenderandvictimwere
tenantsofseparateroomsinanapartment.Theoffenderforciblyremovedthevictimsclothesand
triedtorapeherbutfailed.Themitigatingfactorsnotedinthecasewerethattheoffenderwasa
first offender and had been assaulted by the victims friends. The sentence meted was 6 years
imprisonment and 4 strokes of the cane. This case is similar to the accuseds case in that the
offenderandvictimwereacquaintedaswell.
35TheProsecutionsubmitsthattakingintoaccountthesentencesmetedtooffendersofequalor
worseculpability,andthefactthattheaccusedhadpleadedguilty,theappropriatesentencewould
be4yearsimprisonmentand4strokesofthecane.
(b)Offenceofsexualassaultbydigitalpenetration
36TheProsecutionisseekingasentenceof9yearsimprisonmentand6strokesofthecane
for the offence of sexual assault by digital penetration. The offence came into effect on 1
February2008.
37Inarecentreportedcaseinrelationtosexualassaultbydigitalpenetration,PublicProsecutorv
AUB[2015]SGHC166(PPvAUB),TayJnotedat[7]:
Victims of sexual penetration experience the same emotional scars as rape victims. The
sentencingconsiderationsthatapplytorapeshouldthereforebeappliedtovictimsofsexual
penetrationaswell.
38Accordingly,thosecasessettingoutbenchmarksentencesforrapeshouldbeequallyapplicable
to the present case involving sexual assault by digital penetration. Both such offences involve a
grossviolationofawomansprivatepartswithoutherconsent,andtheprescribedpunishmentis
identical,
39 In PP v NF [2006] 4 SLR(R) 849 (NF) Rajah J (as he then was) set out the benchmark
sentencesforfourcategoriesofrapescenarios,withthesentenceforaCategory1rape,defined
asrapewithoutsignificantaggravatingormitigatingfactors,setat10yearsimprisonmentandno
lessthan6strokesofthecane.ThebenchmarksinNFweresubsequentlycitedwithapprovalby
the Court of Appeal in PP v Mohammed Liton Mohammed Syeed Mallik [2008] 1 SLR(R)
601.Examplesofaggravatingfactors,setoutinSentencingPracticeintheSubordinateCourts(3rd
Edition, 2013) at page 447, include vulnerable victims, use of a weapon, offender being in a
position of trust or authority, premeditation, violence over and above that needed to commit the
rape,useofdrugsonthevictim.
Inthepresentcase,ProsecutionsubmitsthattheaccusedsactionswouldputhiminaCategory1
typescenariobyanalogy.
40 In PP v Shamsul Bin Sa'at [2010] 3 SLR 900 (Shamsul), Chan Seng Onn J in a survey of
precedents (including PP v AEY [2010] SGHC 39and PP v Bala Kuppusamy [2009]SGHC 9 10),
observedthatfortheoffenceofaggravatedsexualassaultbypenetration,thegeneralsentencing

norm is about 10 years imprisonment and 12 strokes of the cane. Chan J meted the same
sentencetotheaccusedinShamsulfortheoffenceofsexualpenetrationwheretheoffenderused
his fingers to penetrate the victims vagina, amongst other acts, and considerable injuries were
caused to the victim. The offender was the former boyfriend of the victims daughter, and had
brokenintothehouseatnightintendingtosteal.Thevictimwasboundandgaggedthroughthe
ordealandtheaccusedrepeatedlyassaultedher.
26 I have given careful consideration to the above precedents cited by the Prosecution. I have
acceptedtheirprecedentsfortheattemptedrapechargeastheyaccordgenerallywiththefactsofthe
presentcase.Asforthechargeforsexualassaultbydigitalpenetration,almostalltheprecedentcases
for sexual assault by penetration involved far more aggravated circumstances and where terms of
imprisonment of 10 years were imposed. Furthermore, these case were cases of aggravatedoffences
under section 376(4), rather than the nonaggravated section 376 (2) general offence that the
accused Ng Jun Xian wascharged..Thisisacrucialandsignificantdifference.
27Inaddition,theaboveprecedentswereaggravatedcasesinvolvedanelementofcriminalforceand
violence,amountingtohurt,oraveryyoungvictim.Itmustalsobeborneinmindthattheaggravated
formoftheoffenceofsexualassaultbypenetrationcarriesamandatoryminimumsentenceofnotless
than8yearsimprisonmentand12strokesofthecaneunders.376(4)ofthePenalCode.Thereisno
suchprescribedmandatoryminimumsentenceforasection376(2)(a)`offence.Theabovecasescited
asprecedentsalsoinvolvefactswherethedigitalpenetrationoccurredinthecontextofapenilerape,or
wheretheoffenderisaserialoffender.Itistritethatanappropriatesentencemustbesensitivetoand
involve a proper appreciation of the particular factual matrix in the actual case before the court. The
situationsintheabovecitedcasesaresignificantlydifferentinanumberofrespects.
28 The Prosecution had also cited as a precedent, the case of PP v Shamsul Bin Saat. Here, the
offender planned to break into and steal from the residence. The victim had gone to bed, and the
offender entered the victim's room, covered her mouth and bound her hands and arms with masking
tape.Hethentiedherarmstothebedpostandtriedrepeatedlytopenetratehervaginawithhispenis.
He was not successful as he was unable to sustain an erection. He persisted to continue sexually
assaulting her by inserting his fingers into her vagina. A few hours later, the offender again attempted
penile rape and succeeded. After raping the victim, he fled with her mobile phone and cash at about
7.00aminthemorning.Theoffenderpleadedguiltytothechargesofattemptedaggravatedrapeunder
section 375(3)(a)(i) read with section 511 of the Penal Code, aggravated sexual assault by
penetration under section 376(4)(a)(i) and aggravated rape under section 375(3)(a)(i). He also
pleadedguiltytoonecountofhousebreakingbynightinordertocommittheftundersection457ofthe
Penal Code. Three other charges were taken into consideration for the purpose of sentencing. For the
charge of aggravated sexual assault by penetration under section 376 (4)(a)(i), the offender was
sentencedto10yearsimprisonmentand12strokesofthecane.ChanSengOnnJheldasfollows:
23Inoteatthispointthattheoffenceofsexualassaultbypenetrationunders376ofthePenal
Code only came into effect on 1 February 2008. Hence, there are not many cases involving
convictions under this provision. In Public Prosecutor v Robiul Bhoreshuddin Mondal [2010]
SGHC10,theoffenderwasconvictedof,amongstotheroffences,fourcountsofaggravatedrape
chargesandonecountofaggravatedsexualassaultbypenetrationunders376(4)(a)(ii)of
the Penal Code for sexually penetrating the victims vagina with his finger. For the charge of
aggravatedsexualassaultbypenetration,theoffenderwassentencedtotenyearsimprisonment
and12strokesofthecane.
24Similarly,inPublicProsecutorvBalaKuppusamy[2009]SGHC97,theoffenderwasconvicted
of,interalia,fourchargesofaggravatedsexualassaultunders376(4)ofthePenalCode.Hehad
forcedtwoofhisvictimstoperformfellatioonhimandhadalsoinsertedhisfingerintotheir
vaginas.Hewassentencedto12yearsimprisonmentand16strokesofthecaneforeachactof
fellatioperformedonhimandtenyearsimprisonmentand14strokesofthecaneforeachoffence
of digital penetration. In Public Prosecutor v AEY [2010] SGHC 3, a case involving an eight
yearoldvictim, the offender was convicted under s 376(2)(a) for penetrating, with his finger,
the vagina of the victim. Woo Bih Li J sentenced the offender to 12 years imprisonment and 14
strokesofthecane.Thistermwasorderedtorunconsecutivelywiththeotherchargeofforcibly
penetrating the victims mouth with his penis, an offence for which the offender was also
sentencedto12yearsimprisonmentand14strokesofthecane.
25 These cases thus show a general sentencing norm of about ten years imprisonment and 12
strokes of the cane for the offence of aggravated sexual assault by digital penetration
unders376ofthePenalCode.
[Emphasisadded]
29Itwillbeusefultoexaminecloselythefactsineachofthethreecasescitedintheextractabove
fromPPvShamsulBinSaat.
30 In the case of PP v Bala Kuppusamy, there had again been considerable violence involved. The
offenderfaced,interalia, fourchargespunishable under section 376(4) (sexual assault by penetration,
withaggravation).HehaddraggedthevictimtothebackoftheMRTstationandorderedhertoremove
herclothesandliedown.Thevictimcompliedoutoffear.Hefondledherbreastsandwhenhemovedhis

handstowardshervulva,thevictimclosedherthighstightlytostophimfromfondlingherprivatearea.
Hehadpunchedherchestandstomachuntilshereleasedhergrip.Hethenfondledherandinserteda
fingerintohervagina,causinghertoscreaminpain.
31 Similarly, in the cited case of PP v Robiul Bhoreshuddin Mondal, the offender committed various
sexualoffencesagainstadomestichelper,afterbreakingintoherplaceofresidence.Hehadrestrained
her,thenremovedherclothes.Afterfondlingandkissingherrightbreast,hehadforcedherlegsapart
and sought to penetrate her vagina with his penis. He made several attempts at penile penetration
beforeheinsertedafingerintohervagina.Afterthat,herapedherandthreatenedthathewouldkillher
with a knife if she raised the alarm. For the charge of aggravated sexual assault by digital penetration
undersection376(4)(a)(ii),hewassentencedto10yearsimprisonmentand12strokesofthecane.
32InPPvAEY,theoffenderfacedfourproceededchargesofilltreatmentofachildunders.5(5)of
the CYPA, one charge of sexual assault by penile penetration under s. 376 (1) (a) and two charges of
digitalpenetrationunders.376(2)(a),allthreechargesbeingpunishableunders.376(4)(b)ofthe
PenalCodeasthevictimwasbelow14yearsofage.
33These3caseswereclearlymoreseriouscases,inviewoftheviolenceinvolved,multiplecharges
and the fact that the victims included minor victims. The accused Ng Jun Xian s victim was not a
minor,but23yearsoldatthetimeofthesexualoffences.Assuch,thechargeofdigitalpenetrationwas
punishableunders.376(3)andnots.376(4)whichprescribesamandatoryminimumsentenceofnot
lessthan8yearsimprisonmentandnotlessthan12strokesofthecane.
34Asfortheaccused,Counselhadstressedthatastheaccusedwasayouthfuloffender,heshouldbe
ordered to undergo reformative training instead of imprisonment. Counsel also referred to the case of
NurAzilahbteIthninvPP[2010]4SLR731(Azilah)tojustifyreformativetrainingfortheaccused.I
note that Azilah can be distinguished as the offences committed in the present case are different in
nature and far more heinous than the offences of harassment of debtors for unlicensed moneylenders
and mischief by fire in Azilah. There are also two other significant points to note in Azilah which
distinguishitfromthefactsofthepresentcase.Firstly,theimprisonmenttermsfortheoffencesinAzilah
are significantly lower than the imprisonment terms meted out for attempted rape and sexual assault
offences.Secondly,ChaoHickTinJA,insentencingtheoffendertoreformativetraining,wasoftheview
thattheoffenderinAzilahcommittedtheactsofharassmentbecauseherfamilywasstrugglingtomake
endsmeetandheractionswereoutofdesperationratherthangreed.Inthepresentcase,thereareno
exceptionalcircumstancesthatcouldjustifytheactionsoftheaccused,whichwerecommittedoutoflust
andnotdesperation.
35Anothercasewhichisinstructiveindecidingtheappropriatesentenceincasesofsexualassaultis
thecaseofPPvMohammedLitonMohammedSyeedMallik[2008]1SLR(R)601(MohammedLiton)at
[95],theCourtofAppealheldthat,apartfromconsideringtheaggravatingandmitigatingfactorsineach
case,thecourtshouldbeguidedbythreebroadprinciples:
(a)thedegreeofharmtothevictim
(b)thelevelofculpabilityoftheoffenderand
(c)thelevelofriskposedbytheoffendertosociety
Degreeofharm
36Inconsideringthedegreeofharmtothevictim,Inotethatthattheentireprocessofthesexual
misconductwaspersistentandprolonged,withincreasingsexualviolenceandwhichmusthavebeenin
itstotality,atimeofterrorforthevictim.Inparticular,theaccusedpaidnoheedtoherdesperatewords
in Mandarin uttered during the struggle and which indicated Dont want, dont want. Undeterred and
bold, the accused was persistent and went on to commit the sexual assault by digital penetration and
attemptedrape.
Levelofculpability
37 Concerning the level of culpability of the offender, I set out below extracts of the oral remarks
madebythiscourtwhendeliveringjudgment
The victim had wanted to go back to her Hostel. But you convinced her to let you take
her to a hotel so that she can rest. You then took her to Hotel 81 instead. You were
devious.
Uponenteringthehotelroom,sheaskedyoutoleavebutyoudidnot.Youtriedtokissheronthe
lips.Shocked,shebityourlip.Youcouldandshouldhavestoppedyouradvancesatthis
pointandapologized.Youdidnot.Youwereintentoncontinuingtomolesther.
You persisted in your unsolicited sexual advances. You touched her buttocks twice

and pushed her onto the bed. You went on to squeeze her breast. The court notes that
throughoutthistime,thevictimwasstrugglinghardandshoutingatyoutostopandnot
totouchher.ThewordssheutteredinMandarinreadoutincourtearlierwereclearlyuttered
interrorandfear.However,yourefusedtostopevenatthispoint.Sheevenhadtogotothe
extentofbitingyoualloveryourbodyduringthisstruggletoforceyoutostop.Butyou
did not stop your lustful actions. You wanted more from her. This was not the end. The
victimsterrifyingordealwasjustbeginning.
Fortunately, the victims shouts were heard by your friend Ng who then knocked on the door,
shoutingoutyourname.Butyoudidnotopenthedoor.Norwereyoudeterred.Youwere
bothboldandbrazenanddespicableinfurthercontinuingwithyourassaultonher.
Atthispointandquiteastonishinglyyourassaultcontinuedunabatedadevenescalated
initsferocity.Youthensatontopofheronthebed.Youthencoveredhermouthwithyour
hand.Andyouthenwentontocommitthesexualassaultbydigitalpenetration.Youdid
not stop here. You continued even further and also attempted to rape her. It was purely
fortuitousthatduetohertenacity,thevictimwasabletoavoidafullrapebytheaccused.
(Emphasisadded)
Levelofrisk
38Inassessingthelevelofrisktheoffenderposedtosociety,Inotethattheaccuseddoesnothave
antecedentsforprevioussexualoffences.However,theaccusedhasapriorviolencerelatedantecedent
for robbery with common intention under section 392 read with section 34 of the Penal Code. He was
sentenced to 24 months probation in May 2010. It would seem that despite having been given this
opportunity at rehabilitation previously, the accused remains immune to change and reform after his
probationterm.Rather,hehasproceededtoreoffendinanevenmoreseriousandheinousmanner.
39Inotethattheaccusedsantecedentsdatebacktowhenhewasmerely17yearsoldandreveal
that several opportunities had already been given to him to reform and rehabilitate. It must also be
borneinmind,thatbeforeasentenceofreformativetrainingisimposed,theCourtmustbesatisfiedthat
theoffenderisamenabletoreform, Otherwise, the rehabilitative purpose of reformative training would
bedefeatedAsstatedbyChiefJusticeYongPungHowin Ng KwokFaivPP[1996]1SLR(R)193at[6]:
6 [] It seems quite clear that the whole basis of sentencing the appellant to reformative
trainingisthattheappellantisconsideredtobeamenabletoreform..[]
40Thereisanotherdisturbingaspect.Atpage3ofthepresentencesuitabilityreportforreformative
trainingdated28August2015,itisstatedthattheaccuseddidnottakefullresponsibilityforhisactions
andattributedblametothevictim.Thisisasignificantrevelation.Italsofliesinthefaceoftheadmitted
SOFwhichisclearintheroleoftheaccusedasthepersistentsexualaggressorandwhohadblatantly
refused to leave the bedroom when the victim asked to be left alone. Counsel had valiantly tried to
explain this away as inexperience on the part of the accused in answering the questions of the
Correctional Rehabilitation Specialist officer. Although in remand at this time, this was a cavalier and
defiantstanceoftheaccusedinexplaininghisactionsincommittingserioussexualoffences.Thisdoes
notshowademonstrablyhighlevelofcapacitytoreform.Instead,itrevealsadarksidetohischaracter.
Italsoindicatedahigherlevelofrisktosocietythattheaccusedislikelytoreoffendinfuture.
Aggravatingfactors
41Intheprecedingparagraphs,Ihavesetoutthegeneralsentencingprinciplesandprecedentsfor
theoffencescommittedbytheaccused.IturnnowtotheaggravatingandmitigatingfactorswhichItook
intoaccountwhendecidingtheappropriatesentencestobeimposed.
Thesexualoffences
42 I have noted that the victim was a tourist visiting Singapore. The accused was previously
acquaintedwithher.Aftertheirnightout,shehadwantedtoreturntoherhostel.Theaccusedofferedto
send her to a hotel instead. The victim was initially reluctant but eventually obliged after the accused
assured her that she would be left alone in the hotel room to sleep. He cleverly diverted the victim to
Hotel81aspartofthisruse.Theaccusedhaddisplayedplanninganddeception,abusedhertrustand
eventheirnewfriendship.Thiswasclearlyaggravating.
43Atthehotel,thevictimlaiddownonthebed.Shetoldtheaccusedthatshewantedtorestand
askedhimtoleavetheroom.However,theaccuseddidnotleavetheroomandtriedtokissheronher
lips. She was shocked and thus bit his lip. The accused also touched the victims buttocks twice. The
accusedthenpushedherdownonthebed.Heforcefullyandsuccessfullytookouthernubrafromher
topandsqueezedherleftbreast.
44 I have considered it aggravating that throughout this time, the victim was struggling hard and
shouting at the accused to stop and not to touch her. The words she uttered in Mandarin were clearly

utteredinterrorandfear.However,theaccusedrefusedtostopevenatthispoint.Sheevenhadtogoto
theextentofbitinghimalloverhisbodyduringthisstruggletoforcehimtostop.Buttheaccuseddid
notstophislustfulactions.Hewantedmorefromher.Thevictimsterrifyingordealwasjustbeginning.
45 Fortunately, the victims shouts were heard by the accuseds friend Ng , who went up to the
bedroomandkeptknockingonthedoor,shoutingouthisname.Theaccusedwasundeterredanddidnot
openthedoor.Hewasbothboldandbrazeninfurthercontinuingwithhissexualassaultonher.
46Atthiscriticalmomentandquiteastonishingly,theaccusedsassaultcontinuedunabatedandeven
escalatedinitsferocity.Heproceededtositontopofthevictimonthebed.Heevencoveredhermouth
withhishandandthenwentontocommitthesexualassaultbydigitalpenetration.Hedidnotstophere
butcontinuedevenfurtherandalsoattemptedtorapeherbutwasunsuccessful.
47Allthistime,thevictimcontinuedstrugglingandsuccessfullypushedtheaccusedoffthebed.Due
to the struggle, the victim suffered several bruises on her hands, face, arms and legs. After she broke
free,sherantowardsthedoor.However,theaccusedgotup,caughtherandslappedherhardonherleft
cheekonce.Shefeltgiddyandhepushedhertothebed.Theycontinuedtostruggleandthevictimtook
a coffee cup and threw it at him. Shortly after this, he stopped struggling with her and suddenly knelt
downinfrontofherandapologised.Thevictimtookthisopportunitytoescape.
48 The manner of the initial molests and the subsequent sexual assault, involved a prolonged two
stage ordeal for the victim. It is incontrovertible that this would have necessarily caused the accused
muchfear,anguishandpainbothphysicalandemotional.Shesufferedseveralbruisesonherhands,
face,armsandlegs.Sheevensufferedtheindignityofbeingslappedbytheaccused.
49Ihavealsotakenintoconsiderationthattheaccusedhadcommittedtheriotousbehaviouroffence
whilsthewasoutonbailforthesexualassaultoffences.Thisfurtherreoffending,afterthecommission
of serious sexual offences is disturbing and cause for concern. When considered together with his
previousstintinprobationandalsodetentioninSAF,theemergingpictureisofanoffenderwhothinks
nothingofresortingtoviolenceandwhohasscantregardforlawandorder.
50Ihaverecountedsomeofthekeythefactsofthecase,onlytoemphasizethespecificaggravating
factorsandthecumulativeaggravatingfeaturesoftheaccusedswantonsexualassaultonthevictim.I
find that his actions were persistent and perverse. It is quite apparent that the entire process of the
sexual misconduct was agonizingly prolonged, with escalating sexual violence and which must have
cumulativelybeenaterrifyingordealforthevictim.Assuch,Iamoftheviewthatthesentencemustbe
sufficientlydeterrentbothspecificandgeneral.
51 Finally, I also took into account the charges which the accused had consented to be taken into
considerationforthepurposesofsentencing.
MitigatingFactors
52Inthiscase,theaccusedhadpleadedguiltytothechargespreferredagainsthim.Counselhadalso
submitted that he was remorseful and had learnt from his foolish mistake in committing the various
offences,especiallythesexualassaultcharges.Ihaveacceptedhisprofessedremorseandgivenhimthe
usualdiscountforaguiltyplea.
53 At the same time, I have also considered the sudden kneeling apology to the victim by the
accused.Thisapologytookplaceaftertheaccusedhadalreadycarriedoutthedigitalpenetrationofthe
victimsvaginaandhadalsoattemptedtorapethevictim.Asthevictimcontinuedtostrugglewiththe
accused,shetriedtoescapebutwascaughtandpushedbacktothebed.Theycontinuedtostruggleand
the victim took a coffee cup and threw it at the accused. Shortly thereafter, he inexplicably stopped
strugglingwithherandsuddenlykneltdowninfrontofherandapologised.
54Thiswasanunusualdevelopment.Itwasalsoanunexpectedandabruptendtoaviolentsexual
attack.Norisitknownwhytheaccusedsimultaneouslystoppedthestruggleandthenwentonhisknees
toapologise.Here,itwouldbequiteacceptabletoinferthattheaccusedwouldhaveknown,oroughtto
havereasonablybelievedthatthiscessationofthestruggleandakneelingapologywouldhavegiventhe
victim the chance to escape. She did so escape. I have therefore given some mitigating effect to this
suddenkneelingapologybytheaccused.
Mydecisionontheappropriatesentence
55 I am mindful of the references by the Prosecution to precedents involving cases of rape. I have
alsonotedthecategorizationinPPvNF[2006]4SLR(R)849whereapenilerapeatthelowestendof
thespectrum,aCategory1Rape,beingarapethatfeaturednoaggravatingormitigatingcircumstances,
would carry a tariff of ten years imprisonment and 6 strokes of the cane. From the above precedent
casescited,anaggravatedsexualassaultbydigitalpenetrationwouldalsocarryabroadlysimilartariff
of imprisonment of ten years and caning of 12 strokes. However, I was mindful that the case of the
accuseddidnotinvolveeitherapenilerapeoranaggravatedsexualassaultbydigitalpenetration.

56 Calibrating down from the sentences imposed for aggravated section 376(4) sexual assault
penetrationcasesintheHighCourt,whichareintheregionoftenyearsimprisonmentwith12strokes
of the cane, I would consider an appropriate sentence for a section 376 (2) (a) offence, where no
criminal force causing hurt, intimidation or other egregious factors are in play, to be in the region of 6
yearsimprisonmentwithcaning.Forthepresentinstantcase,Iboreinmindcertainaggravatingfactors
andcumulativeaggravatingfeatures,particularlytheescalatingsexualviolence.Ithereforeimposedan
imprisonment term of 7 years imprisonment, with 3 strokes of the cane against the accused for the
chargeofsexualassaultbydigitalpenetration.Fortheoffenceofattemptedrape,Iwasoftheviewthat
asentenceof4yearsimprisonmentand3strokesofthecanewouldbeappropriate.
Sentenceimposed
57 After considering all the circumstances of the case and the charges which the accused had
consented to be taken into consideration for the purposes of sentencing, I imposed the following
sentencesonhim:
(a)DAC9201512015(digitalpenetration)imprisonmentforatermof7yearsandcaning
with3strokes
(b)DAC9201522015(attemptedrape)imprisonmentforatermof4yearsandcaningwith
3strokes
(c)MAC9067582015(riotousbehavior)imprisonmentforatermof2weeks
58Thetermsofimprisonmentforthe2sexualoffencechargeswereorderedtorunconcurrentlyand
thetermofimprisonmentpassedontheriotousbehaviorwasorderedtorunconsecutivelytothetermof
imprisonment passed on the digital penetration charge. Accordingly, the total sentence passed was
imprisonmentforatermof7yearsand2weeksimprisonmentwitheffectfrom6Oct2015andcaning
with6strokes.
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