ISMAIL BIN JAMALUDIN v PUBLIC PROSECUTOR

Facts

Ismail bin Jamaludin pleaded guilty in the District Court to two charges of aggravated outrage of modesty under s 354(2) of the Penal Code against two young sisters, with a further s 354(2) charge and a charge of voluntarily causing hurt taken into consideration. He had formed a relationship with the girls' mother in 2015 and had a paternal relationship with the girls, who called him "Papa". Between October and December 2015, while caring for the younger sister, then five years old, when she was unwell and alone with him, he touched and licked her private parts. Between February 2016 and February 2017 he repeatedly touched the older sister, then seven to eight years old, under her clothes and kissed her with his tongue in her mouth, continuing even after she bit his tongue.

The offences came to light in 2022 when the younger sister confided in a counsellor. He had left Singapore in 2019 and was arrested on his return on 19 July 2023. He pleaded not guilty at the first mention on 3 May 2024, applied for criminal legal aid, and indicated a guilty plea on 20 September 2024 after counsel was assigned. The District Judge imposed three years' imprisonment and three strokes for the first charge and two years' imprisonment and three strokes for the third, running consecutively, for an aggregate of five years' imprisonment and six strokes of the cane. He appealed against sentence in Magistrate's Appeal No 9241 of 2024/01.

Issues

1. Whether the District Judge erred in placing the first charge between the high end of Band 2 and the low end of Band 3 of the GBR framework.
2. Whether the sentence for the third charge was manifestly excessive, including any uplift for the charges taken into consideration.
3. Whether the appellant should have received the full 30% guilty plea discount because of the time taken to assign legal aid counsel.

Holding

The High Court dismissed the appeal against sentence, leaving the aggregate sentence of five years' imprisonment and six strokes of the cane in place.

Reasoning

Under the framework in GBR v Public Prosecutor and another appeal [2018] 3 SLR 1048, the court said the choice between Band 2 and Band 3 is not a numbers game or a matter of whether violence was used, but turns on the intensity of the aggravating factors. For the first charge the younger sister was very young, the breach of trust was heightened because he was meant to be caring for her while she was ill, the sexual exploitation was high and the offence took place in her own home. A starting point of 45 months' imprisonment and three strokes was within the DJ's discretion and consistent with a comparable precedent. The appellant's precedents involved cousins, neighbours or family friends rather than a father figure, so they did not show the sentence was excessive.

For the third charge, skin-to-skin touching alone placed the offence at the higher end of Band 2, and the other aggravating factors supported the DJ's finding. The DJ had not stated any uplift for the charges taken into consideration, so the appellant's attempt to work backwards to a 25% uplift was speculation. In any event a significant uplift was justified, as those charges concerned the same victim.

On the plea discount, the court found the Prosecution's inability to explain its position unsatisfactory but agreed with the result. The guidelines' scenario on delayed legal aid contemplates an accused who is still deciding whether to plead guilty. Here he had pleaded not guilty at the first opportunity and signalled an intention to contest, and he never indicated a guilty plea within the first 12 weeks. The relevant point was therefore when the plea was entered, which attracted a 20% discount, and in any case the scenario only permits, rather than requires, the full reduction.

From the judgment