CRH v PUBLIC PROSECUTOR
11 cases cited
Cited by 1 case
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Case Significance
CRH v Public Prosecutor [2024] SGCA 29 was a criminal appeal decided by the Court of Appeal of Singapore on 14 August 2024, with Sundaresh Menon CJ delivering the grounds of decision of the court, sitting with Tay Yong Kwang JCA and Steven Chong JCA. The appeal concerned the sentence imposed on the appellant, CRH, who had pleaded guilty to two charges of attempted aggravated statutory rape of his biological daughter. The offences were committed in or around 2013 and were framed under s 375(1)(b) read with s 511(1) and punishable under s 375(3)(b) read with s 511 of the Penal Code (Cap 224, 2008 Rev Ed) in force at the time (the "Pre-2019 Amendment PC"). The appeal arose from the High Court decision in Public Prosecutor v CRH [2024] SGHC 34.
The central question identified in the grounds of decision was whether the mandatory minimum sentence of eight years' imprisonment and 12 strokes of the cane prescribed for the completed offence of aggravated statutory rape also applied to an attempt to commit that offence punishable under s 511 of the Pre-2019 Amendment PC, and, if so, whether the new s 512(3)(a) of the Penal Code introduced by the 2019 amendments had any bearing. The appellant was represented by Akesh Abhilash of Harry Elias Partnership LLP, while the Public Prosecutor was represented by counsel from the Attorney-General's Chambers including Jocelyn Teo, Sivanathan Jheevanesh and Vincent Leow.
Summary
SUPREME COURT OF SINGAPORE
14 August 2024
Case summary
CRH v Public Prosecutor [2024] SGCA 29
Criminal Appeal No 5 of 2024
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Decision of the Court of Appeal (delivered by Chief Justice Sundaresh Menon):
Outcome: The Court of Appeal dismisses the appellant’s appeal against sentence, disagreeing with the appellant’s contention that the aggregate sentence imposed in the court below was manifestly excessive.. The Court of Appeal agrees with the court below that the mandatory minimum sentence for an offence of aggravated statutory rape under s 375(3)(b) of the Penal Code (Cap 224, 2008 Rev Ed) which was in force at the time of the offences in or around 2013 (the “Pre-2019 Amendment PC”) does not extend to an attempt to commit the offence of rape against a woman under 14 years of age without her consent. However, the Court of Appeal disagrees with some aspects of the reasoning by which the court below arrived at its conclusion.
Pertinent and significant points of the judgment
• The mandatory minimum sentence for an offence of aggravated statutory rape under s 375(3)(b) of the Pre-2019 Amendment PC does not extend to an attempt to commit the offence of rape against a woman under 14 years of age without her consent. Given the way s 375 and s 511 of the Pre-2019 Amendment PC are structured, it is clear that the enhanced punishment under s 375(3)(b) of the Pre-2019 Amendment PC has no application at all where the primary offence of rape under s 375(1) has not been completed: at [22]–[34].
• Whether mandatory minimum sentences for other offences would extend to attempts to commit those offences that are liable to be punished under s 511 of the Pre-2019 Amendment PC would necessarily depend on the interpretation of the specific text of those provisions: at [35].
• Sentencing is within the court’s purview, and neither the Prosecution’s nor the Defence’s position on sentence will be determinative of the sentence which the court may impose. Any representation by the Prosecution on its own sentencing position, therefore, would have no bearing on the sentence which the court may impose: at [38].
• There is no basis at all for the notion that a litigant will not be prejudiced by the litigation choices he makes and the strategies he adopts. Whatever understanding on sentencing an accused person might have with the Prosecution would not bind the sentencing court: at [40].
Background to the appeal
1 The appellant pleaded guilty in the court below to two charges of attempted aggravated statutory rape of the victim. Each of the charges alleged that the appellant, sometime in or around 2013, attempted to penetrate the vagina of the victim, who was then less than 14 years old, with his penis without her consent. At the time of the offences, the appellant was between 27 and 28 years old, while the victim was between four and five years old.
2 The appellant admitted in the statement of facts to other occasions when he committed acts of attempted aggravated statutory rape against the victim even until the victim was in her early years of primary school, though the victim was unable to particularise these other incidents. The appellant also agreed to three charges being taken into consideration for the purposes of sentencing arising from other offences committed against the victim, including two offences of using his mobile phone in 2020 to take photographs of the victim’s vagina under her shorts without her consent while she was sleeping, and one of outraging her modesty by touching her breast area directly on her skin.
3 As a result of the sustained offending by the appellant, the victim’s mood and daily functioning were impacted. Her symptoms were consistent with a diagnosis of adjustment disorder with mixed anxiety and depressed mood.
4 In the court below, the Prosecution submitted that a sentence of eight and a half to nine years’ imprisonment and 12 strokes of the cane was appropriate for each of the two charges, and that the two individual sentences ought to run concurrently. In adopting this position, the Prosecution took the view that the mandatory minimum sentence of eight years’ imprisonment for the offence of aggravated rape under s 375(3)(b) of the Pre-2019 Amendment PC extended to an offence of attempted aggravated rape.
5 On the other hand, the appellant submitted that a sentence of six and a half years’ imprisonment and 12 strokes of the cane was appropriate for each of the two charges, with the two individual sentences to run concurrently. The appellant also argued in the court below that if a mandatory minimum sentence was applicable, then the prescribed sentence of eight years’ imprisonment for aggravated rape offences ought to be halved to four years’ imprisonment in the case of attempted aggravated rape offences.
6 The Judge directed parties and also appointed a Young Independent Counsel (“YIC”) to address two questions. The two questions posed to the parties and the YIC and the Judge’s answers to the questions having considered the parties’ and the YIC’s submissions are set out below:
a. The first question was whether, under s 511 of the Pre-2019 Amendment PC, the mandatory minimum sentence prescribed for an offence applied also to an attempt to commit that offence. The Judge answered this question in the negative. In arriving at this conclusion, the Judge applied the three-step framework to be adopted when undertaking the purposive interpretation of a statutory provision laid down in Tan Cheng Bock v Attorney-General [2017] 2 SLR 850. Applying this framework, at the first step, the Judge found that there were two possible contending interpretations of s 511: (i) that the minimum sentence prescribed for an offence applied equally to an attempt to commit that offence; and (ii) that the minimum sentence prescribed for an offence did not apply at all to an attempt to commit that offence. At the second step, the Judge found that the legislative purpose of s 511 of the Pre-2019 Amendment PC was to criminalise attempts to commit offences but not to punish such attempts as severely as the completed offences. On this basis, at the third step, the Judge found that interpreting s 511 of the Pre-2019 Amendment PC such that the minimum sentence prescribed for a primary offence had no application at all to an attempt to commit the offence would better further the legislative purpose of not punishing attempts as severely as the completed offence.
b. The second question was, if the first question was answered in the affirmative, whether, in any event, s 512(3)(a) of the Penal Code which was introduced by amendments made to the Penal Code in 2019 and in force from 1 January 2020 (the “Post-2019 Amendment PC”) should be applied retrospectively. Section 512(3)(a) of the Post-2019 Amendment PC made clear that the court was not bound to impose any mandatory minimum sentence that is prescribed for an offence in the case of an attempt to commit that offence. The Judge found that it was strictly unnecessary for him to consider the second question given that he had answered the first question in the negative.
7 Having found that the mandatory minimum sentence did not apply in the case of an attempt, the Judge considered the appropriate sentences to be imposed for each of the two charges as well as the aggregate sentence to be imposed. The Judge’s decision on sentence was as follows:
a. The Judge found that each of the two charges fell within Band 2 of the applicable sentencing framework for attempted rape in Public Prosecutor v Ridhaudin Ridhwan bin Bakri and others [2020] 4 SLR 790 given the presence of four offence-specific aggravating factors: (i) the grave abuse of position and authority; (ii) the youth and vulnerability of the victim; (iii) the premeditated nature of the offences; and (iv) the severe psychological harm that had been caused to the victim.
b. In arriving at an indicative starting sentence of eight and a half years’ imprisonment and nine strokes of the cane for each of the charges, the Judge considered the extended period of time over which the offences were committed, the long-lasting psychological injuries caused to the victim, the fact that the severity of the harm suffered was not dissimilar in nature and gravity to those suffered by victims of rape, and the attempts had almost progressed to completion and would have done so but for the victim’s vagina being too small.
c. The Judge then calibrated the individual sentences down to eight years’ imprisonment and eight strokes of the cane for each of the charges on account of the offender-specific aggravating and mitigating factors, which included the charges taken into consideration for the purposes of sentencing, and the appellant’s early plea of guilt.
d. The Judge then further adjusted the individual sentences down to six years and six months’ imprisonment and eight strokes of the cane, and ordered the individual sentences to run consecutively. The Judge took the view that consecutive sentences ought to be ordered given that the two proceeded charges involved distinct offences which took place a few weeks apart. The individual sentences were adjusted downwards so as not to offend the totality principle. Consequently, the appellant was sentenced in the aggregate to 13 years’ imprisonment, which was backdated to the date of the appellant’s arrest, 27 January 2022, and 16 strokes of the cane
8 The appellant appealed against the Judge’s decision, submitting that the aggregate sentence imposed by the Judge was manifestly excessive, as the appellant had operated under the belief that the individual sentences would be ordered to run concurrently regardless of whether the Judge found that the mandatory minimum sentence for the offence of aggravated statutory rape applied to an attempt to commit such an offence. The appellant stated that, had he known that there was any prospect that he might have ended up with an outcome that was worse than what the Prosecution had proposed, he would have accepted the Prosecution’s position without raising the points of law which he did.
The Court of Appeal’s decision
The mandatory minimum sentence for aggravated statutory rape did not apply in the case of an attempt to commit the offence of aggravated rape
9 The resolution of the issue of whether the mandatory minimum sentence for an offence of aggravated statutory rape under s 375(3)(b) of the Pre-2019 Amendment PC extended to an attempt to commit the offence of rape against a woman under 14 years of age without her consent called for a close reading of ss 375 and 511 of the Pre-2019 Amendment PC: at [24].
10 Based on the structure of s 375 of the Pre-2019 Amendment PC, the only offence that was prescribed in the Pre-2019 Amendment PC version of s 375 was the offence of rape as set out in s 375(1). The punishment provision for the offence of rape was set out in s 375(2) and it provided for punishment with imprisonment of up to 20 years, and also with a fine or caning. There was then provision for enhanced punishment in s 375(3) which applied where the Prosecution proved the basic offence as set out in s 375(1) as well as one of the additional facts set out in s 375(3). However, proof of either of the additional facts set out in s 375(3) did not entail the commission of a different offence. The operative offence was nevertheless rape under s 375(1): at [26]–[27].
11 From a reading of s 511 of the Pre-2019 Amendment PC, the effect of s 511 for the purposes of the appeal was to reduce the maximum term of imprisonment for the offence of attempted rape to one-half of that provided in s 375(2). This resulted in the maximum term being ten years’ imprisonment. Save in this respect, the punishment was the same as that provided for the “offence”. This gave rise to a potential ambiguity of whether the adjustment effected by s 511 to the punishment for the offence of attempted rape applied only in relation to the punishment provided for the offence of rape under s 375(1), or whether it also applied to the enhanced punishment provision provided for the offence of rape upon proof also of one or the other of the additional facts in s 375(3): at [29]–[30].
12 Section 375(3) contemplated that the primary offence had been committed, and it was when the primary offence had been done and when certain additional facts were proven that the enhanced punishment provision was triggered. Where the primary offence had not been completed, the enhanced punishment provision did not have any application at all. There was nothing to indicate that the enhanced punishment provision applied in situations where the primary offence had not been completed. On this basis, it followed that the enhanced punishment provision had no application in the context of an attempt to commit rape, even if one of the additional facts specified in s 375(3) was proven: at [32].
13 The legislative intent underlying s 511 appeared to have been to provide for incarceration periods that were generally less severe when punishing attempts than when punishing the actual offence. It accorded with this purpose to prefer the conclusion that s 511 in this context applied to the sentence set out in s 375(1) and not to the enhanced punishment provision set out in s 375(3). Otherwise, the sentence for an attempt to commit the offence under s 375(1) where the additional facts were proven even if the basic facts were not, would be a term of imprisonment of at least eight years but not more than ten years’ imprisonment, and also 12 strokes of the cane. This was unlikely to have been the legislative intent as it would result in an implausibly narrow sentencing range for the attempted offence which would fail to capture the broad range of circumstances in which this situation might arise. Further, it could, not infrequently, result in the punishment for the attempted offence being more severe than for the actual offence. Therefore, the mandatory minimum sentence for the offence of aggravated statutory rape under s 375(3)(b) of the Pre-2019 Amendment PC did not apply to an attempt to commit the offence of rape: at [33]–[34].
14 Whether mandatory minimum sentences for other offences would extend to attempts to commit those offences that are liable to be punished under s 511 of the Pre-2019 Amendment PC would necessarily depend on the interpretation of the specific text of those provisions: at [35].
The aggregate sentence imposed by the Judge was not manifestly excessive
15 The aggregate sentence of 13 years’ imprisonment and 16 strokes of the cane was not manifestly excessive in any way. There was nothing objectionable about the Judge’s approach to sentencing: at [36]–[37].
16 There was no merit to the appellant’s argument that his submissions in the court below were premised on the Prosecution’s representation to the appellant that it would submit that the individual sentences for the two charges should run concurrently. It was clear from the record that the Prosecution’s position on concurrent sentences was premised on the individual sentences it was seeking. This was a logical position. Further, sentencing was within the court’s purview, and the Prosecution’s position was not determinative of the sentence which the court could impose: at [38].
17 There was also no merit to the appellant’s argument that, had he not succeeded in his argument that the mandatory minimum sentence for aggravated rape did not apply in the case of attempted rape, the Judge would have sentenced the appellant to individual sentences of between eight years’ and eight and a half years’ imprisonment per charge, with the individual sentences to be run concurrently. This assumed that ordering individual sentences of between eight years’ and eight and a half years’ imprisonment to run consecutively would offend the totality principle. Given the sustained nature of the appellant’s offences and the serious and lasting harm caused to the victim, an aggregate sentence of 16 years’ imprisonment would not have offended the totality principle: at [39].
18 Further, the appellant’s argument was premised on the notion that a litigant would not be prejudiced by the litigation choices he makes and the strategies he adopts. There was no basis for this notion: at [40].
19 The appeal was dismissed, and the aggregate sentence of 13 years’ imprisonment and 16 strokes of the cane imposed in the court below was affirmed: at [41].
This summary is provided to assist in the understanding of the Court’s grounds of decision. It is not intended to be a substitute for the reasons of the Court. All numbers in bold font and square brackets refer to the corresponding paragraph numbers in the Court’s grounds of decision.
What was CRH v Public Prosecutor [2024] SGCA 29 about?
CRH v Public Prosecutor [2024] SGCA 29 was a Court of Appeal sentencing appeal decided on 14 August 2024. CRH had pleaded guilty to two charges of attempted aggravated statutory rape of his biological daughter, with offences committed around 2013 under the pre-2019 Penal Code.
What legal question did the Court of Appeal consider in CRH v Public Prosecutor?
The Court of Appeal considered whether the mandatory minimum sentence of eight years' imprisonment and 12 strokes of the cane for aggravated statutory rape also applied to an attempt to commit that offence under s 511 of the pre-2019 Penal Code, and how the 2019-amended s 512(3)(a) applied.
Who decided CRH v Public Prosecutor [2024] SGCA 29?
The appeal was decided by the Court of Appeal of Singapore, with Sundaresh Menon CJ delivering the grounds of decision sitting alongside Tay Yong Kwang JCA and Steven Chong JCA. The hearing took place on 26 June 2024 and the grounds were issued on 14 August 2024.
Statutes Cited
Cases Cited (11)
SG (4)
SLR (7)
[2010] 1 SLR 417 [2010] 3 SLR 900 [2014] 2 SLR 998 [2016] 4 SLR 1288 [2017] 2 SLR 850 [2018] 5 SLR 799 [2020] 4 SLR 790
Cited By (1)
Referenced in
Statutes interpreted in this judgment
Legal concepts & references
Judgment
Read the full judgment on the official Singapore Courts portal.
Read on eLitigationSource: eLitigation ([2024] SGCA 29)