What offence was at issue in Public Prosecutor v Randy Rosigit [2024] SGHC 171?

[2024] SGHC 171 concerned offences under ss 377BK(1) and 377BK(2) of the Penal Code (Cap 224, 2008 Rev Ed), which criminalise possession of child abuse material. The High Court, with Vincent Hoong J delivering, addressed the applicable sentencing framework on 4 July 2024.

How does section 377BK of the Penal Code relate to child abuse material per [2024] SGHC 171?

Section 377BK was introduced by s 120 of the Criminal Law Reform Act 2019 as part of 2019 Penal Code amendments targeting the entire ecosystem of child abuse material — production, distribution and consumption — including making possession an offence, as explained in [2024] SGHC 171.

[2024] SGHC 171 — PUBLIC PROSECUTOR v RANDY ROSIGIT

SUPREME COURT OF SINGAPORE

4 July 2024

Case summary

Public Prosecutor v Randy Rosigit [2024] SGHC 171
Magistrate’s Appeal No 9008 of 2023

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Decision of the General Division of the High Court (delivered by Justice Vincent Hoong):

Outcome: The General Division of the High Court (“General Division”) allowed the Prosecution’s appeal against sentence and set out a five-step sentencing framework for the offence of possessing child abuse material under s 377BK(1) punishable under s 377BK(2) of the Penal Code (Cap 224, 2008 Rev Ed) (“Penal Code”) (the “Possession Offence”).

Pertinent and significant points of the judgment

• A five-step sentencing framework, modelled on that set out in Logachev Vladislav v Public Prosecutor [2018] 4 SLR 609, was appropriate for the Possession Offence: at [36].

• With regard to the offence-specific factors going towards harm at the first step of the Logachev-style sentencing framework, a scale of acts depicted in child abuse material, ranked in increasing level of harm, was adopted by the court: at [44].

• Other non-exhaustive relevant harm factors include: (a) type / nature of acts depicted in the child abuse material; (b) number of different children depicted in each item of child abuse material; (c) quantity of the child abuse material possessed; (d) age of the children in the child abuse material; (e) type of media (ie, image or video) / length of media; (f) degree of identifiability of the children; (g) subjective harms suffered by the victims of child abuse material (where evidence is available of these): at [48], [49] and [51].

• With regard to the offence-specific factors going towards culpability at the first step of the Logachev-style sentencing framework, the following non-exhaustive culpability factors would warrant consideration in many instances of the Possession Offence: (a) degree of planning, preparation, premeditation and sophistication; (b) offender’s attempts to conceal behaviour; (c) offender’s participation in a network; (d) duration and persistence of the offending behaviour; (e) motive of the offender: at [50] and [51].

• Applying this Logachev-style sentencing framework, the court allowed the Prosecution’s appeal, set aside the sentence of six weeks’ imprisonment below and instead sentenced the respondent to a term of eight months’ imprisonment: at [70].

Background

1 The respondent had pleaded guilty to a charge of possessing child abuse material under s 377BK(1) punishable under s 377BK(2) of the Penal Code (ie, the “Possession Offence”). He consented to having two additional charges taken into consideration for sentencing: (a) a similar charge for accessing other child abuse material, and (b) a further charge under s 30(1) of the Films Act (Cap 107, 1998 Rev Ed) (“Films Act”) for possessing 119 obscene films.

2 The respondent first grew curious about child pornography in 2020. On 7 May 2020, he used the TOR Browser (a web browser that anonymised its users’ web traffic) and found a search engine from which he could access websites containing child abuse material. He paid Bitcoin for full access to one such website but failed to gain the log-in details.

3 Around June 2021, the respondent joined a Telegram chat group where pornography (including child abuse material) was shared. He knew that members of the chat group shared child abuse material. He downloaded some of the child abuse material, which consisted of two still images showing fully nude girls (who appeared below 14 years of age) standing next to one another, and six videos between 52 seconds long (shortest) and 37 minutes and 46 seconds long (longest). The videos showed young girls engaging in various sexual acts.

4 A District Judge (“DJ”) sentenced the respondent to six weeks’ imprisonment in respect of his single proceeded charge of possessing child abuse material.

5 The Prosecution, being dissatisfied with the sentence imposed by the DJ, appealed against the sentence, arguing that the respondent’s sentence should be increased to at least six months’ imprisonment.

Decision

Appropriate sentencing framework for the Possession Offence

6 A five-step sentencing framework, modelled on that set out in Logachev Vladislav v Public Prosecutor [2018] 4 SLR 609, was appropriate for the Possession Offence: at [36].

7 At the first step of the Logachev-style framework, the court will have regard to the relevant offence-specific factors and identify: (a) the level of harm caused by the offence, and (b) the level of the offender’s culpability: at [37].

8 In assessing the factors going towards harm, market-making harm is one of the important overarching harm factors to be considered in sentencing for the Possession Offence: at [40].

9 The direct harm that the acts cause to the child victim involved in the production of child abuse material refers to the physical harm that is caused in cases of torture or sadistic acts, the psychological harm which can be presumed in most cases, and the harm from the loss of dignity, innocence and privacy: at [43].

10 A scale of acts depicted in child abuse material, ranked in increasing level of harm is as follows: at [44].

Scale	Description (increasing level of harm)
A person who is, or who appears to a reasonable observer to be, or who is implied to be, below 16 years of age is:
Level 1	in the presence of another person who is engaged in, or apparently engaged in a sexual pose or sexual activity.
Level 2	engaged in, or apparently engaged in, a sexual pose (whether or not in the presence of another person). The following are non-exhaustive examples of sexual poses: (a) Material that depicts an image of the genital region or buttocks (whether exposed or covered) where the depiction is sexual and in circumstances (whether or not apparent from the depiction) which reasonable persons would regard as being offensive. (b) Material that depicts an image of the breasts (whether exposed or covered), where the depiction is sexual and in circumstances (whether or not apparent from the depiction) which reasonable persons would regard as being offensive.
Level 3	engaged in, or apparently engaging in, a sexual activity (whether or not in the presence of another person).
Level 4	a victim of torture, cruelty or physical abuse (whether or not the torture, cruelty or abuse is sexual).

11 To the extent that the facts before the court show that the offender had gained possession of child abuse material with escalating gratuity over time, that would be a legitimate factor to be considered for the purpose of sentencing: at [47].

12 Other non-exhaustive relevant harm factors include: at [48] and [49]

a. the more exposure there is of private body parts of the victim child, the more aggravated the harm;

b. the greater the number of different children depicted in each item of child abuse material, the greater the harm;

c. the quantity of child abuse material is a relevant harm factor because it affects the extent of the demand that is being generated and the harm caused to the victims in the child abuse materials;

d. the age of the child depicted in the child abuse material is another harm factor because it goes to the gravity of the impact on the victim, which can be inferred from the particular vulnerability of younger victims. If, however, the evidence shows that the offender deliberately sought out such child abuse material depicting very young children, then it would also go towards culpability because it shows an intention to target such vulnerable victims;

e. the type of media is relevant only in the sense that a video is presumptively more injurious to the victim than a still. A much longer video is more harmful than a less lengthy one;

f. the extent to which the victim can be identified in the child abuse material is another harm factor because it personalises the injury even more pointedly; and

g. in the rare case where there is available evidence of the subjective harms suffered by the victims of child abuse material, such as where a victim provides a victim impact statement, that should be considered as well. However, the absence of evidence of subjective harm cannot be taken to be a factor favouring the offender.

13 The following non-exhaustive culpability factors would warrant consideration in many instances of the Possession Offence: at [50].

a. planning, preparation, premeditation and sophistication;

b. attempts to conceal the offence;

c. group participation, which may reveal insights into the offender’s attitude to the offence, and which may encourage and spur more criminal activity and result in a higher degree of actual and potential harm;

d. duration of the offending; and

e. offender’s motive. For instance, where an offender possesses child abuse material with an intention of distributing it further, with an intention of making profit therefrom, or with an intention of using the material for blackmail or sexual grooming of others, these may be aggravating considerations.

14 The harm caused by the offence may be categorised into one of three levels: slight, moderate or severe. The offender’s culpability may be categorised into one of three levels: low, medium or high: at [52].

15 At the second and third steps of the Logachev-style framework, the court would identify the applicable indicative sentencing range, and thereafter the appropriate starting point within that range, based on its assessment of harm and culpability. The following sentencing matrix would be appropriate for the Possession Offence: at [53], [54] and [56]:

Harm Culpability	Slight	Moderate	Severe
Low	Up to 3 months’ imprisonment	3–24 months’ imprisonment	24–36 months’ imprisonment (with the option of caning)
Medium	3–24 months’ imprisonment	24–36 months’ imprisonment (with the option of caning)	36–48 months’ imprisonment (with the option of caning)
High	24–36 months’ imprisonment (with the option of caning)	36–48 months’ imprisonment (with the option of caning)	48–60 months’ imprisonment (with the option of caning)

16 At the fourth step of the Logachev-style framework, the court will make such adjustments to the starting point as may be necessary to take into account offender-specific aggravating and mitigating factors: at [57].

17 Where an offender has been convicted of multiple charges, the fifth step in the Logachev-style framework is to consider the need to make further adjustments to take into account the totality principle: at [58].

Appropriate sentence for the respondent

18 The respondent’s offence was at the lower end of “moderate harm”, and at the high end of “low culpability”: at [60].

19 In relation to harm, the net quantity of child abuse material possessed was low, the child abuse material possessed depicted acts that were at a high level of harm, the respondent possessed not just still images (which involved ten fully nude girls who appeared less than 14 years old), but long videos as well, the ages of the victims were as low as less than six years old, and generally less than 11 years old, and the victims were identifiable: at [61].

20 The various harm factors fixed the present case at the lower end of “moderate harm”, chiefly because the fairly high level of harm displayed in the acts depicted in the child abuse material needed to be balanced against the low net quantity of child abuse material possessed by the respondent: at [62].

21 In relation to culpability, the salient factors were that the respondent had searched for, and found, child abuse material on the dark web using the TOR Browser, which was designed to hide a user’s internet footprints. He also paid in Bitcoin for full access to a website with child abuse material, and gain some access albeit not full access. He was a member of a network (a Telegram chat group) where pornography (including child abuse material) was shared. The offence duration was fairly long, spanning from 7 May 2020 to 22 October 2021, and there was also evidence of an escalation in the level of the respondent’s engagement with the child abuse material: at [63].

22 The present offence was pegged at the high end of “low culpability” chiefly because of the sophisticated means employed by the respondent and his payment for child abuse material with Bitcoin. The present offence did not cross the threshold into “medium culpability” because there was no evidence of the respondent possessing the child abuse material with an intent to further distribute it, or with an intent to make some form of gain from it. Furthermore, his participation in a network (the Telegram chat group) was also limited: at [64].

23 The applicable sentencing range was 3–24 months’ imprisonment with the option of a fine in addition. The appropriate starting point was 12 months’ imprisonment: at [65].

24 In relation to the offender-specific factors, the respondent’s similar s 377BK(1) Penal Code charge which was taken into consideration for sentencing was given due, but not excessive, weight as this charge was already taken into account when the offence-specific factors were considered. The other charge taken into consideration for sentencing, which was a charge under the Films Act, was accorded some aggravating weight given that it was prima facie a similar type of offence and this offence was not already taken into consideration at earlier stages of applying the Logachev-type framework. The respondent’s lack of antecedents was noted but he was not a first-time offender given his charges taken into consideration for sentencing: at [67].

25 While the respondent was caught red-handed, the court nonetheless discounted the starting point of 12 months’ imprisonment to eight months’ imprisonment on account of the saving of time and resource that followed the respondent’s plea of guilt: at [68] and [69].

26 The court therefore allowed the Prosecution’s appeal and set aside the sentence of six weeks’ imprisonment below and instead sentenced the respondent to a term of eight months’ imprisonment: at [70].

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.

PUBLIC PROSECUTOR v RANDY ROSIGIT

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Case Significance

Summary

What offence was at issue in Public Prosecutor v Randy Rosigit [2024] SGHC 171?

How does section 377BK of the Penal Code relate to child abuse material per [2024] SGHC 171?

Statutes Cited

Cases Cited (19)

Cited By (1)

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Statutes interpreted in this judgment

Sentencing outcomes for this offence

Judgment