JCU v Public Prosecutor

JCU met the complainant, the granddaughter of a neighbour who taught him religious classes, at those classes from 2017. In November 2021, aged 18, and on 23 January 2023, aged 19, after classes at the teacher's flat and once the teacher had fallen asleep on the sofa, he pushed the complainant's head to his penis and penetrated her mouth. She was nine at the first offence and 11 at the second. Six further charges, covering two similar incidents in between and acts of making her masturbate him, were taken into consideration. The complainant suffered flashbacks, insomnia and loss of appetite, and became scared of males.

JCU pleaded guilty to two charges of rape under s 375(1A)(b), the provision added when the Penal Code was amended in January 2020 to bring penile-oral and penile-anal penetration within rape. The District Judge found that rehabilitation was not the primary sentencing consideration, applied the Band 1 starting point in Ng Kean Meng Terence v Public Prosecutor [2017] 2 SLR 449, gave a 30% reduction for the early plea, and imposed eight years' imprisonment and eight strokes of the cane. JCU appealed in Magistrate's Appeal No 9073 of 2024/01, arguing that he should have received reformative training.

1. Whether penile-oral rape is as grave as penile-vaginal rape, so that the approach in Public Prosecutor v CPS [2024] 2 SLR 749 applies to a youthful offender
2. Whether the circumstances were exceptional enough to keep rehabilitation as the dominant sentencing consideration
3. Whether the District Judge erred in relying on the offender's victim-blaming attitude and lack of insight

In CPS the Court of Appeal held that, as a broad heuristic, rehabilitation is usually displaced for a youthful offender of mature age and understanding convicted of rape, unless there are few or no aggravating factors, very limited involvement, and good potential for reform, all three together. JCU argued penile-oral rape was less serious because it sits in a separate subsection and carries no risk of pregnancy. The court disagreed: the punishment provisions in s 375(2) and (3) draw no distinction between the forms of rape, the separate subsection reflects that oral and anal rape can be committed against male victims, and the parliamentary debates and the Government's rejection of the review committee's proposal to exclude oral penetration showed equal gravity was intended. English courts likewise draw no distinction. CPS therefore applied.

The exceptional circumstances were absent. The complainant was very young and vulnerable and suffered severe harm. The court did not agree there was an abuse of trust, as JCU held no position of responsibility over her, but there were four occasions of penile-oral rape across about a year.

On insight, the reformative training report recorded JCU in his March 2024 interview justifying his arousal by saying the complainant sat close to him, and he had then downplayed his contact with her compared with his earlier psychiatric interview. Conduct while sentencing is pending carries limited weight because the offender has every incentive to show a favourable front. In any case good potential for reform alone could not meet the cumulative test. The court added that the Terence Ng framework, not the Pram Nair one, governs penile-oral and penile-anal rape.

The High Court dismissed the appeal, holding that the District Judge did not err in finding that rehabilitation had been displaced as the dominant sentencing consideration, so the sentence of eight years' imprisonment and eight strokes of the cane stood rather than reformative training.