CJH v PUBLIC PROSECUTOR

Facts

CJH appealed to the Court of Appeal in Criminal Appeal No 39 of 2022 against the sentence imposed by the High Court. While aged between 15 and 18, he committed sexual offences against his biological sister, referred to as V, who was then between nine and 12 years old, all in the family home. He pleaded guilty to three charges of sexual penetration of a minor under s 376A(1)(a) of the Penal Code, punishable under s 376A(3): anal penetration in 2017, vaginal penetration in 2018 and oral penetration in 2019. Six further charges, including possession of obscene films, were taken into consideration with his consent.

The trial Judge applied the Ng Kean Meng Terence v Public Prosecutor [2017] 2 SLR 449 framework to the vaginal penetration charge and the Pram Nair v Public Prosecutor [2017] 2 SLR 1015 framework to the other two, placing all three in band 2. She imposed ten years' imprisonment and 8 strokes for the vaginal charge and eight years' imprisonment and four strokes for each of the others, ran the first two imprisonment terms consecutively, and arrived at 18 years' imprisonment and 16 strokes, backdated to 11 November 2020. The Public Defender's Office, now acting for him, sought an aggregate of 13 years' imprisonment and eight strokes; the Prosecution asked for the appeal to be dismissed.

Issues

1. Whether a long period of offending is an aggravating factor where there are multiple separate charges
2. Whether the trial Judge was right to treat the harm to V as severe
3. Whether the aggregate sentence was crushing in light of the appellant's youth and the totality principle

Holding

The Court of Appeal allowed the appeal against sentence in part. The sentences for the anal and oral penetration charges were reduced to six years' imprisonment and four strokes each, the sentence for the vaginal penetration charge stood, and the vaginal and anal charges ran consecutively from 11 November 2020, giving an aggregate of 16 years' imprisonment and 16 strokes of the cane.

Reasoning

The court rejected the argument that the period of offending could aggravate only where one amalgamated charge covered it. Offending spread over a long time had been treated as aggravating in Ng Kean Meng Terence, whether there were many charges or one, because it showed persistent criminal tendencies and no sign of reflection or remorse, which is distinct from repetition.

On harm, the court held that harm is not confined to pregnancy, disease or a diagnosed illness, and harm is not excluded merely because many victims would suffer it. Given how young V was, and that she stopped resisting because she felt it pointless, it was hard to say the harm was not severe. Even without that factor, four aggravating factors placed the case in the middle of band 2, and the starting points were not excessive.

The court's only concern was the appellant's youth. Comparing Muhammad Anddy Faizul bin Mohd Eskah v Public Prosecutor [2020] SGCA 113, which involved 19 victims and 68 charges, it found that an offender of the appellant's age could reasonably regard 18 years' imprisonment, together with 16 strokes, as crushing under the second limb of the totality principle. The caning total was held entirely justified, so only the imprisonment terms on two charges were reduced.

From the judgment