District Court of Singapore

Public Prosecutor v Rames Paramasivam
[2023] SGDC 73

Criminal Law – Offences – Outrage of Modesty – Aggravated Outrage of modesty

Evidence – Proof of evidence – Standard of proof – Unusually convincing test for uncorroborated testimony

Evidence – Witnesses – Collusion – False complaint

Evidence – Witnesses – Corroboration – Sexual offences

Evidence – Proof of evidence – Accused’s DNA

Criminal Procedure and Sentencing – Sentencing – One transaction rule

Criminal Procedure and Sentencing – Sentencing – Totality principle

20 April 2023

Senior District Judge Bala Reddy:

Introduction

1 The Accused, a 38-year-old male, committed acts of sexual abuse against a vulnerable 9 year old female. The Accused took advantage of the young girl's innocence, using his position of trust to satisfy his own depraved desires. This case exemplifies an abominable betrayal of trust and a flagrant disregard for the fundamental principles of human decency. Despite the irrefutable evidence against him, the Accused elected to go to trial and presented a defence that was a mere afterthought, contrived solely to evade culpability and avoid accountability for his reprehensible criminal behaviour.

The Charges

2 The Prosecution proceeded on three charges under Section 354(2) of the Penal Code. The proceeded charges were as follows (“the Charges”):

DAC-923118-2020

“You, are charged that you, on 14 November 2020, sometime between 8.47am and 9.34am, at [address redacted], Singapore, did use criminal force to [the victim] a female under 14 years of age (then 9 years old, [DOB redacted]), to wit, by biting her right nipple (skin-to-skin) and right ear and licking her vagina (skin-to-skin), intending to outrage her modesty, and you have thereby committed an offence punishable under s 354(2) of the Penal Code (Cap 224, 2008 Rev Ed).”

DAC -908886-2021

“You, are charged that you, on 14 November 2020, sometime between 8.47am and 9.34am, at [address redacted], Singapore did use criminal force to [the victim], a female under 14 years of age (then 9 years old, [DOB redacted]), to wit, by ejaculating onto her exposed chest, intending to outrage her modesty, and you have thereby committed an offence punishable under s 354(2) of the Penal Code (Cap 224, 2008 Rev Ed).”

DAC-923527-2021

“You, are charged that you, on 14 November 2020, sometime between 8.47am and 9.34am, at [address redacted], Singapore, did use criminal force to one [the victim], a female under 14 years of age (then 9 years old, [DOB redacted]), to wit, by putting your exposed penis against her mouth, intending to outrage her modesty, and you have thereby committed an offence punishable under s 354(2) of the Penal Code (Cap 224, 2008 Rev Ed).”

3 Each of the charges was punishable with imprisonment for a term not exceeding 5 years or with fine, or with caning, or with any combination of such punishments.

Statement of Agreed Facts

4 The following facts were agreed by both the Prosecution and the Defence:

a. PW10, a 27-year-old Singaporean and the biological mother of the victim, PW9.

b. “S”, a 32-year-old Singaporean and the Accused's friend who was dating PW10 at the time of the incident.

5 On 14th November 2020, the victim, PW10, and “S” spent time together in a hotel room at [hotel name redacted] in [address redacted]. “S” invited the Accused to join them, and he arrived at approximately 7:00am on the same day.

6 At around 8:45am, the Accused left the hotel room with the victim and took her to his residence. “S” called the Accused twice on his mobile phone and requested that he bring the victim back to the hotel room. Two screenshots of “S”'s phone showing the outgoing calls to the Accused's number were admitted into evidence as Annex A by consent.

7 The Accused eventually returned with the victim to the hotel room at approximately 9:34am. A CD containing 9 video clips extracted from the hotel's CCTV camera showing the Accused and the victim leaving and returning to the hotel premises was admitted into evidence as Annex B by consent.

8 Additionally, 16 photographs of the Accused's residence and clothing taken on 16th November 2020 at 2229hrs by Forensic Specialist Ismady Bin Ramli (PW1) were admitted into evidence as Annex C by consent. Finally, 6 photographs of the victim's clothing taken on 24th November 2020 at 1053hrs by SI Mohamad Razan Bin Abdul Wahab (PW2), were admitted into evidence as Annex D by consent.

Prosecution’s Case

9 The Prosecution led evidence from ten witnesses:

No.	Witness	Role	Remarks
1.	Forensic Specialist Ismady Bin Ramil	Photographer	PW1
2.	SI Mohamad Razan Bin Abdul Wahab	Photographer	PW2
3.	Peck Chun Hua	Responding officer	PW3
4.	SI Muhd Hazlin	Initial IO	PW4
5.	Juliana Sim Puay Ting	DNA profiler	PW5
6.	Abdul Khalid	Collected Accused’s blood sample	PW6
7.	Dr Thong Zhonghui	DNA analyst	PW7
8.	IO Khairulizan Ishak	IO	PW8
9.	[Victim’s name redacted]	Victim	PW9
10.	[Victim’s mother’s name redacted]	Victim’s mother	PW10

10 Briefly, the evidence of the key witnesses was as follows:

PW9 – The Victim

11 The victim gave a detailed and coherent account of the events that had taken place. On 14th November 2020, the victim was at [hotel name redacted] with her mother (witness PW10) and her mother's then-boyfriend, “S”, when “S” invited the Accused to join them in the hotel room. The Accused arrived, and it was the first time that the victim had met him.[note: 1]

12 Sometime around 8:45am on that day, while they were in the hotel room, the Accused asked “S” for permission to take the victim to "7-11," with the victim still present in the room.[note: 2]

13 They departed from the hotel room around 8:45am, but instead of taking her to "7-11," the Accused brought her to his house[note: 3]. During cross-examination, the victim clarified that the Accused held her hand as they made their way to his house and she did not resist because she was afraid and also he had a tight grip on her hand[note: 4]. Once they arrived, the Accused locked the door and asked her to remove her t-shirt, pants, and panties[note: 5].

14 Despite feeling scared, the victim complied with his request because she was afraid he would scold her[note: 6]. She reaffirmed her fear during cross-examination[note: 7]. The Accused also warned her not to scream, which she confirmed during cross-examination. After undressing, the Accused instructed her to lie on the bed, which she did with her head on the pillow[note: 8]. He proceeded to remove his own clothes and joined her on the bed. He bit her right nipple and ear and licked her vagina, which terrified the victim[note: 9].

15 The victim further gave evidence that the Accused had put his penis into her mouth which she subsequently clarified, that the Accused had in fact placed his exposed penis against her closed mouth.[note: 10] He instructed her to remain silent and not to cry out while he was engaged in the act.[note: 11]

16 She testified that she saw a white-colour liquid which she described as sticky and slimy come out of the Accused’s penis and onto her chest.[note: 12]. It is understandable that the victim, being a pre-pubescent child, was uncertain about the nature of the substance. However, there is no dispute that the semen belonged to the Accused. Despite being unable to fully articulate the extent of her emotional distress, the victim did convey feelings of sadness in response to the sexual assault.[note: 13]

17 The evidence led showed that the Accused used a white blanket to wipe off a white-coloured liquid from the victim's exposed chest after he had finished. The victim positively identified the blanket in photograph 10 of the exhibit in ASOF-Annex C.[note: 14] At that point in time, the victim was naked. In the meanwhile “S” made two calls to the Accused's phone, requesting him to bring the victim back quickly[note: 15]. During cross-examination, the victim clarified that the first call occurred while the Accused was wiping the liquid off her, and the second call occurred after he had put on his clothes[note: 16]. The second call was made while they were still in the room. They left the room soon after.

18 The Accused instructed the victim not to inform her mother and “S” about the molestation.[note: 17] Nevertheless, in the early hours of 15 November 2020, the victim disclosed to her mother that she had been molested. She clarified that she delayed telling her mother because “S” was present in the hotel room, and she wanted to inform her mother only when “S” was not around, as she feared “S” might reprimand her. The victim recollected informing her mother that the Accused had bitten her right nipple, right ear, licked her private part, put his private part in her mouth and his white-colour liquid came out.[note: 18]

19 Upon learning of the incident, the victim's mother was "shocked and fierce" and informed “S” about it upon his return to the hotel room[note: 19]. Notably, the victim denied suggestions made by the Defence that her mother and “S” had influenced her to fabricate the allegation of molestation. During cross-examination on this matter, she confirmed that her mother did not direct her on what to report to the police but only advised her to inform the police about the incident.

PW7 – Dr Thong Zhonghui (“Dr Thong”) DNA Analyst

20 The DNA evidence in this case provided material support for the victim's account that the Accused had ejaculated on her exposed chest. This evidence was presented in a report prepared by PW7 Dr. Thong Zhonghui, which was marked as exhibit P5 in court. The report stated that semen was conclusively found on two exhibits seized from the scene of the incident. These exhibits were the interior front of the victim's t-shirt and the exterior side of her pants.

21 Dr. Thong further explained that he had conducted a series of tests to determine the presence of semen on these exhibits. First, he conducted a presumptive test known as the AP test, which tests for the presence of acid phosphatase, a marker commonly found in semen. If this test is positive, then Dr. Thong would conduct a confirmatory test known as the semenogelin and prostate-specific antigen (PSA) test. To conclude that semen was conclusively present on an exhibit, both the semenogelin and PSA test must be positive.

22 Based on these tests, Dr. Thong confirmed that semen was present in the areas on the interior front of the victim's t-shirt and the exterior side of her pants. The DNA profile obtained from the spermic fraction extracted from the sperm cells found on these exhibits was a match to the Accused's DNA profile. The probability of finding a DNA profile belonging to the Accused was estimated to be 1 in 750 septillion based on the Indian population.

23 While Dr. Thong could not conclusively state that semen was present on the area at the exterior front of the victim's panties, the DNA test that was conducted subsequently showed that the spermic fraction extracted from the sperm cells matched the Accused's DNA. Dr. Thong clarified in his oral testimony that in relation to the victim's panties, the DNA profile from the spermic fraction was a mixture of the Accused's DNA profile as the major contributor and another uninterpretable DNA profile as the lower contributor. The probability of finding a DNA profile belonging to the Accused was estimated to be 1 in 190 sextillion based on the Indian population.

PW10 – The Victim’s Mother

24 PW10, the victim’s mother gave evidence during her cross-examination that the victim seemed frightened when she first returned to the hotel room. The victim subsequently made a swift complaint to her mother that she had been sexually assaulted by the Accused after “S” had left the hotel room. As previously noted, the victim's testimony was that she informed her mother at around 4:00 am on 15 November 2020 that the Accused had bitten her right nipple and right ear and licked her private part and put his private part in her mouth, and his white-colour liquid came out.[note: 20] During her oral testimony, PW10, confirmed that in the early hours of the morning, shortly after midnight, the victim informed her that the Accused had instructed her to remove her clothes (shirt, pants and underwear) and bit her right ear and right nipple. The victim also told her that the Accused took his penis near her mouth and took his thumb and rubbed it on her body. The victim also told her that the Accused told her not to tell her mother about this incident.[note: 21] PW10 affirmed that the victim told her that this incident took place in the Accused’s house.[note: 22]

Defence’s Case

25 The Accused gave evidence in his defence. The Accused’s defence rested heavily on a key aspect of the case, namely the claim that “S” had asked him on two separate occasions to take the victim out of the hotel room. The Accused claimed that “S” had asked him to take the victim out of the room so that he could engage in sexual activity with the victim's mother, who was also present in the room.[note: 23] The Accused stated that the first time “S” made this request was while they were on their way to the hotel room, and that “S” repeated the request once they had arrived at the hotel.

26 In addition to this, the Accused further maintained that he had sought and received the victim's mother's consent before taking the victim out of the room. It was his assertion that he had obtained explicit permission from her before taking the victim out.

27 The rest of his defence was a bare denial of any molestation and a grotesque account of why his DNA was found on the clothes worn by the victim.

The Law

Section 354 of the Penal Code provides:

354. (1) Whoever assaults or uses criminal force to any person, intending to outrage or knowing it to be likely that he will thereby outrage the modesty of that person, shall be punished with imprisonment for a term which may extend to 3 years, or with fine, or with caning, or with any combination of such punishments.

(2) Whoever commits an offence under subsection (1) against any person below 14 years of age shall be punished with imprisonment for a term which may extend to 5 years, or with fine, or with caning, or with any combination of such punishments.

28 In order to prove the offence under the 3 proceeded charges, the prosecution needs to establish the following elements:

(a) The Accused used criminal force on the victim who was below 14 years old.

(b) He did so with the intention to outrage the modesty of the victim.

(c) And that he did carry out the respective acts described in each of the charges to outrage the modesty of the victim.

Assessment of the Evidence

The applicable standard

29 In instances where the uncorroborated testimony of an eyewitness forms the sole basis for a conviction, the "unusually convincing" standard is applicable. As stated by the Court of Appeal in PP v GCK and another (“GCK”) [2020] SGCA 2; [2020] 1 SLR 486 at [87-89] there exists no differing standards in relation to eyewitnesses as opposed to alleged victims. The "unusually convincing" standard denotes a situation where the witness's testimony is so persuasive that the Prosecution's case is proven beyond reasonable doubt based solely on the evidence provided. As noted in Mohammed Liton v PP [2008] 1 SLR 601 at [38], "a complainant’s testimony would be unusually convincing if the testimony, when weighed against the overall backdrop of the available facts and circumstances, contains that ring of truth which leaves the court satisfied that no reasonable doubt exists in favour of the accused."

30 To determine whether a witness's testimony is unusually convincing, the court takes into account several factors, such as the witness's demeanour and the internal and external consistency of her evidence.

31 In the instant case the victim was a young girl who was 9 years old at the time of the offence. And in this respect, I took into consideration the Court of Appeal's affirmation in GCK at [97] of the position held by the Canadian Supreme Court in R v W(R) [RW] [1992] 2 SCR 122 at [25-27] that children are no longer considered a suspect category of witnesses. The court concluded that the assessment of children's evidence should not be based on rigid stereotypes but rather on a common-sense approach. In accordance with the child's mental development, understanding, and ability to communicate, each child witness's credibility and evidence should be evaluated based on appropriate criteria, irrespective of their age.

Evidence of the Victim

32 I found the evidence of the victim to be clear and consistent and when viewed in the totality of the circumstances including the corroborative evidence led by the Prosecution, to be not only unusually convincing but also internally and externally consistent. The child victim appeared to me to be earnest in recounting the events that occurred on the morning of 14 November 2020, without any motive or inclination to falsely implicate the Accused beyond narrating her own personal experience, which no doubt must have been a traumatising one for her. Minor aberrations in the recollection of minor details did not materially affect her evidence at all.

Corroborative Evidence

DNA Evidence

33 There was however an additional important piece of evidence in this case in the form of DNA of the Accused found on two exhibits, namely the area on the interior front of the victim’s t-shirt and the area at the exterior side of the victim’s pants which corroborated the evidence of the victim.

34 The above evidence then needed to be evaluated together with the uncontradicted evidence of the victim’s mother PW10. In summary, the DNA evidence presented in this case provided strong support for the victim's account that the Accused had ejaculated on her exposed chest. The DNA tests conducted by Dr. Thong showed that semen was conclusively present on the victim's t-shirt and pants, and the DNA profiles obtained from these exhibits matched the Accused's DNA profile with a very high degree of certainty. The DNA profile obtained from the spermic fraction on the exterior front of the victim's panties also matched the Accused's DNA profile.

35 A crucial aspect of the Accused's defence is his account of the DNA evidence. During his examination-in-chief, he claimed that his semen was discovered on the inside of the victim's shirt and the outside of her trousers, and that his DNA was detected on her underwear because he had engaged in phone sex with his wife earlier that morning and ejaculated on his bed, pillow and sheets. He even claimed that the walls next to him were damp.[note: 24] He argued that the victim may have come into contact with his semen and then touched herself, which he claimed is how his semen ended up on those parts of her clothing.

36 Not only is this claim far-fetched, but the Accused himself also admitted that it was pure speculation without any supporting evidence. [note: 25] He did not present any evidence or summon any witness to corroborate his assertion about engaging in phone sex. In any case, his account of ejaculating after a supposed phone sex session is utterly unbelievable and devoid of any credibility or truthfulness. The Accused acknowledged that he could not explain how the semen found on the physical surfaces ended up on the relevant parts of the victim's clothing, leaving a significant gap in his defence. His only explanation was that it "could have" happened, as he was unsure if it was even true, which casts grave doubt on the veracity of his claim.[note: 26]

37 Furthermore, it is abundantly clear that the defence put forth by the Accused is nothing but an afterthought to save himself from the overwhelming evidence against him. It is noteworthy that the Accused's Case for the Defence (CFD), which was submitted after the Prosecution had already presented its case and the DNA evidence it planned to rely on, did not mention this defence. The absence of this defence in the CFD raises a strong inference that it is a fabricated and belated claim, made in desperation to counter the prosecution's evidence.

38 Furthermore, during the Defence's cross-examination of the Prosecution witnesses, there was no mention of this defence. It was only raised for the first time during the Accused's examination-in-chief, despite being a significant part of the Accused's defence. Dr Thong was not questioned on whether it was possible for semen to be transferred in the manner alleged or if semen could be detected hours after the alleged ejaculation post-phone sex and the victim's arrival in the room.[note: 27] Similarly, during the victim's testimony, the defence did not inquire whether she had touched the semen on the Accused's bed, wall, or pillow or whether she had touched herself after that.[note: 28] The Accused belated claim is without doubt an afterthought based solely on speculation.

Corroboration by PW10

39 In assessing the evidence given by PW10, I was mindful that the Courts in Singapore have taken a different approach to corroborative evidence as compared to the Baskerville standard of “independent evidence implicating the Appellant in a material particular”. Instead, the focus in Singapore is on the substance and relevance of the evidence, and whether it supports or confirms the material that it is meant to corroborate. This was discussed in detail by the Court of Appeal in AOF v Public Prosecutor [2012] SGCA 26; [2012] 3 SLR 34 at [173] - [175], which confirmed that the more liberal approach to interpreting corroborative evidence is applicable in the local context.

40 Given the aforementioned guidance, I found that there was reasonable basis to conclude that the testimony of the victim's mother substantiates critical elements of the victim's account. The victim’s mother testified under cross-examination that upon the victim's return to the hotel room, she appeared to be visibly frightened. Subsequently, the victim promptly reported to her mother in graphic detail how the Accused had sexually assaulted her following the departure of “S” from the room. It should be noted that the victim attested to informing her mother of the incident at approximately 4.00am on 15 November 2020.[note: 29] Based on this testimony, I found that the victim's version of events that the Accused bit her right nipple and right ear and licked her private part and put his private part in her mouth, and his white-colour liquid came out, was sufficiently corroborated by PW10’s evidence.

41 She further testified that the victim disclosed that the Accused warned her not to disclose the incident to her mother.[note: 30] The victim's mother verified that the victim recounted the incident as having occurred at the Accused's residence. Although, there were some minor discrepancies in the narration of events by PW10, such as the exact time when the victim told her of the incident I was of the view that such details were insignificant to affect the corroborative value of her evidence. In this regard I considered that such minor discrepancies in witness testimony may be attributed to the inherent variability in individual perspectives and interpretations, as no two persons are capable of describing an event in precisely identical terms. In evaluating the credibility of witnesses, courts commonly acknowledge the potential for human error in observation, retention, and recall. (See the dicta of Abdul Hamid J in Chean Siong Guat v PP [1969] 2 MLJ 63, and observations by Yong CJ in Lim Thiam Hor and Anor v Public Prosecutor [1996] 1 SLR(R) 758 at [21])

42 Against this overwhelming evidence, I had to consider if the issues raised by the Accused in his defence raised any reasonable doubt on the prosecution’s case.

Physical contact with the victim

43 The Accused tried to distance himself from the allegations of molest by claiming in his defence that he did not physically touch the victim while she was in his room and that they only spoke. Additionally, the victim did not touch him during their time together. According to the Accused, this evidence supports his assertion that nothing improper occurred between them while they were alone in the room.

44 However, this directly contradicted the Accused's statements made during the investigation. In exhibit P13, the Accused's Video Recorded Interview (VRI) statement recorded under s 22 of the Criminal Procedure Code, he confessed to touching the victim's hand.[note: 31] He even went as far as to say that the victim touched his hand during their interaction, as he demonstrated in the VRI.[note: 32] This inconsistency is noteworthy because it suggests that the Accused was attempting to adapt his defence to fit the evidence and distance himself from the molestation allegations. The fact that he cannot explain the inconsistency highlights the weakness of his defence, which rests solely on a bare denial of the allegations.

Whether allegations fabricated

45 According to the Accused, the victim fabricated the allegations against him under the influence of her mother and “S”. He alleged that they coached the victim to make false accusations as part of a scheme to extort money from him.[note: 33] The Accused has not produced an iota of evidence or explanation for how he came to this conclusion. When questioned about it during cross-examination, he acknowledged that his claims were baseless and speculative, lacking any supporting evidence. He further admitted that he was unsure if the alleged coaching had even occurred.[note: 34]

46 Most notably, the Accused conceded that he had never met the victim or her mother prior to the incident and they were complete strangers to him. He also acknowledged that they had no motive to falsely accuse him of molestation.[note: 35] Therefore, based on the Accused's own admission, it is clear that the victim and her mother had no reason to fabricate the allegations against him.

47 Based on the evidence, the Accused's defence of coaching and extortion is nothing but a fanciful concoction. Notably, there is no mention of coaching or extortion in the Accused's VRI statement recorded under s 22 of the CPC or the cautioned statements recorded under s 23 of the CPC. Significantly the cautioned statements record that he had “nothing” to say, and “no need to say anything” when asked if he had anything to say in his defence when the charges were read to him. Similarly, the Accused's CFD also does not assert any such claims.

48 Additionally, during the trial, when the victim gave her oral testimony, the Defence Counsel did not raise this defence or question her on whether she had any motive to fabricate the allegations. This is unusual, given how essential this defence is to the Accused's case.

49 Given that the defence of coaching and extortion only surfaced during the Accused's examination-in-chief, and was not mentioned in any previous stage of the case, it raises serious concerns about its credibility. Therefore, I had no reservations in dismissing this allegation of motive and fabrication.

50 I was satisfied beyond reasonable doubt that the Accused was guilty on all three charges and accordingly convicted him.

Sentence

Prosecution’s Submissions

51 The Prosecution submitted for a global sentence of 48 to 50 months imprisonment and 9 strokes of the cane with the following breakdown:

S/N	Charges	Sentence sought
1	Section 354(2) Penal Code – biting her right nipple (skin-to-skin) and right ear and licking her vagina (skin-to-skin)	25-26 months’ imprisonment + 3 strokes (consecutive)
2	Section 354(2) Penal Code) – ejaculating on her exposed chest	23-24 months’ imprisonment + 3 strokes (consecutive)
3	Section 354(2) Penal Code – putting his exposed penis against her mouth	25-26 months’ imprisonment + 3 strokes
Global		48 – 50 months’ imprisonment + 9 strokes

Defence’s Submission on Sentence

52 On the other hand Counsel for the Accused urged the court to impose a global sentence 36 months and 6 strokes of the cane on the basis of the totality principle.

Sentencing Framework

53 In assessing sentence in this case I adopted the sentencing framework laid out in GBR v PP [2017] SGHC 296; [2018] 3 SLR 1048 (“GBR”) at [28 - 30], for offences under section 354(2) of the Penal Code which required the court to use a two-step approach. The court should prioritise offence-specific factors, which can be divided into three primary categories. The first two categories are generally related to the offender's culpability, while the third pertains to the harm caused to the victim. The degree of sexual exploitation is a crucial factor in the first category, which encompasses several elements such as the accused's actions towards the victim, the body part(s) touched, and the duration of the offence. The offence is deemed more severe if the victim's private parts are touched, if there is skin-to-skin contact instead of touching over clothing, and if the exploitation persisted for an extended period rather than being a brief moment.

54 The court should then take into account the circumstances surrounding the offence, which may include, but are not restricted to whether the offence was premeditated, use of force or violence, abuse of position of trust, whether deception was used, other aggravating actions as well as if the victim was particularly vulnerable to exploitation. Lastly, the court should consider the harm inflicted upon the victim, whether it be physical or psychological.

55 The sentencing band set out in GBR, is accurately summarised in the Prosecution’s submissions on sentence as follows:

Sentencing Band	Description	Caning
Band 1 Less than one year’s imprisonment	Cases at the lowest end of the spectrum of seriousness, including those that do not present any or only one aggravating factor.	Generally not imposed
Band 2 One to three years’ imprisonment	Cases that involve two or more aggravating factors, and caning will almost always be imposed, with a suggested starting point of at least three strokes of the cane. Cases at the higher end of the spectrum of Band 2 would involve skin-to-skin touching of private parts or sexual organs, or the use of deception.	Almost always imposed, starting point at least three strokes.
Band 3 Three to five years’ imprisonment	Cases involving the most serious instances of aggravated outrage of modesty. Caning should be imposed, with a suggested starting point of at least six strokes of the cane. These cases typically involve the exploitation of a vulnerable victim, a serious abuse of a position of trust, or the use of violence or force.	Should be imposed, starting point at least six strokes.

Offence Specific Factors

56 If two or more aggravating factors are present in a case, it will almost always be categorised under Band 2. The punishment of caning is highly likely to be imposed, with a minimum of three strokes of the cane. Cases at the lower end of the band would involve no skin-to-skin contact with the victim's private areas, whereas those at the higher end would involve skin-to-skin touching of the victim's private parts or sexual organs. There is no doubt that this case falls within the upper range of Band 2, with a probable sentence of between 2 to 3 years when taking into account the aggravating offence-specific factors.

57 I agree with the submissions of the learned DPP that there were several aggravating factors present, such as a significant degree of multiple intrusions into private parts, the abuse of a young and vulnerable victim, and exploiting the trust placed in the Accused by the victim's mother and her boyfriend. In respect of premeditation, even if it was not premeditated in the sense that he had planned earlier, there was a significant degree of opportunism on his part, in that he took advantage of the situation and on the pretext of taking the victim to a nearby 7-11 store, took her to his room. Such use of deception by the accused is also a relevant aggravating factor which would bring his case to the higher end of the spectrum of Band 2. I assessed the indicative range for the offences to be 24 months imprisonment.

Offender Specific Factors

58 I then considered the offender specific factors. The offender is for all intents and purposes a first offender but with multiple charges, and was not entitled to any discount that may be applied in cases where an offender had pleaded guilty at the earliest opportunity. He showed no remorse throughout the trial.

Precedents

59 The learned DPP cited two cases in support of her sentencing submissions.

60 In GBR the appellant's niece, who was 13 years old at the time of the offence, was the victim of the sexual assault. The appellant convinced the victim to go to his apartment to study, claiming it would be better than staying at home due to her parents' quarrel. While alone in the apartment, the appellant touched the victim inappropriately by fondling her breasts, touching her genitals after removing her underwear and licking her vagina for a total of 10 minutes. He was charged with one count of sexual assault under Section 354(2) of the Penal Code. The appellant was found guilty after a trial and sentenced to 21 months imprisonment and 4 strokes of the cane. On appeal, the sentence was increased to 25 months imprisonment and 4 strokes of the cane.

61 I find the present case to be equally egregious, if not more so, despite the fact that the abuse of trust was more severe in GBR. This is because the victim in the present case was only 9 years old, much younger than the victim in GBR.

62 The prosecution also cited the case of Public Prosecutor v BNO [2018] SGHC 2432 ("BNO"), where the accused was found guilty after a trial on one charge under section 354(2) of the Penal Code and two charges under section 376(4)(b) of the Penal Code. The offences were committed against a 9-year-old victim who happened to be the best friend of the accused's son. While the victim was staying over at the accused's home and sleeping, the accused moved his finger over the victim's penis, over his shorts. He then pulled the victim’s shorts down and moved his finger around the victim’s exposed penis in a circular motion for some time. The offender left the room and returned shortly and performed fellatio on the victim’s exposed penis for a few seconds. He subsequently left the room and returned again to perform fellatio on the victim. He was sentenced to 2 years imprisonment and 3 strokes of the cane for the charge under s 354(2) of the Penal Code. In addition, he was given a sentence of 12 years imprisonment and 12 strokes of the cane for each charge punishable under s 376(4)(b) of the Penal Code. The global sentence was 14 years imprisonment and 24 strokes of the cane, with the sentence for the charge under s 354(2) of the Penal Code and one charge under s 376 of the Penal Code ordered to run consecutively.

63 I agree with the submissions of the Prosecution that the current case bears similarities to BNO with respect to the victim's age and the extent of betrayal of trust. In both instances, the perpetrator took advantage of his position as a trusted adult and violated the trust of the victim's caretakers. I find that the level of sexual exploitation for the outrage of modesty charge is comparable to the present case. Therefore, a just sentence for the first charge would be 24 months imprisonment and 3 strokes of the cane.

One transaction rule

64 In this case, I am mindful that the offences were committed against the same victim within a short period of time. The common law principle known as the "one transaction rule" would generally be applicable. This rule states that if multiple offences are committed in a single transaction, the sentences for those offences should be concurrent instead of consecutive. The one transaction rule ensures that an offender is punished proportionately to the gravity of the most serious offence committed and prevents the offender from receiving multiple punishments for the same criminal conduct. This is however subject to section 307(1) of the Criminal Procedure Code which states:

307.— (1) Subject to subsection (2), if at one trial a person is convicted and sentenced to imprisonment for at least 3 distinct offences, the court before which the person is convicted must order the sentences for at least 2 of those offences to run consecutively.

65 I was mindful that common law principles serve as guidance for sentencing courts, whose main responsibility is to determine the appropriate sentence that would best serve the interests of justice. No single factor can definitively establish the appropriate sentence, and in determining it, the court must weigh various considerations. One of these factors is whether the total sentence imposed is proportionate to the inherent gravity of all the offences committed by the accused. Therefore, while a specific sentence for an individual offence may be suitable, the combined effect of the sentences may result in a term of imprisonment that is disproportionate to the accused's overall criminal conduct.

Totality principle

66 During this final stage of the analysis, I assessed whether the combined sentence is proportional to the overall criminality of the offences committed by the Accused utilising the totality principle. This principle comprises two aspects: firstly, the court must examine whether the cumulative sentence is significantly higher than the usual level of sentences for the most severe of the individual offences committed. Secondly, the court must consider whether the effect of the cumulative sentence on the offender is oppressive and not consistent with his past record and future prospects. If the court determines that the cumulative sentence is excessive, it may choose to impose a different combination of consecutive sentences or adjust the individual sentences accordingly. (See Mohamed Shouffee bin Adam v Public Prosecutor [2014] 2 SLR 998 [58]-[59] and Public Prosecutor v Raveen Balakrishnan [2018] SGHC 148; [2018] 5 SLR 799 at [73].

67 Therefore, while a specific sentence for an individual offence may be suitable, the combined effect of the sentences may result in a term of imprisonment that is disproportionate to the Accused's overall criminal conduct.

68 I evaluated each of the individual sentences, considering the totality principle, and differentiated the first and third charges from the second charge based on the level of intrusion. The degree of intrusion was more significant in the first and third charges compared to the second charge. The first charge involved direct skin-to-skin contact with the victim's nipples and vagina, while the third charge involved direct skin-to-skin contact using the Accused’s penis. The second charge pertained to indirect contact, as the Accused did not make direct physical contact with the victim's chest. While the vile act of ejaculating on the victim was utterly degrading and unsanitary, but considering the indirect nature of the contact, I deemed it appropriate to consider a slightly reduced sentence for the second charge when evaluating the individual sentences.

Sentence Imposed

69 The acts particularised in the first and third charges of this case are comparable to those in GBR. A fair sentence for the first charge and third charge would be 24 months imprisonment and 3 strokes of the cane. I however calibrated the sentence for the second charge to 18 months imprisonment and 3 strokes of the cane.

70 With due regard to the totality principle and ensuring that the global sentence is not crushing, I ordered the sentences for the first and second charges to run consecutively and the third concurrent. In the result the Accused will serve a total of 42 months imprisonment and be given 9 strokes of the cane.[Context] [Hide Context]

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