3 bands for sentencing rapists spelt out

This framework, set out by then Justice V.K. Rajah in 2006, had largely guided sentencing for rapists in the last 10 years.
This framework, set out by then Justice V.K. Rajah in 2006, had largely guided sentencing for rapists in the last 10 years.PHOTO: ST FILE

Court of Appeal's new framework requires judges to size up 'offence-specific' factors

The Court of Appeal yesterday laid down a comprehensive framework for sentencing rapists, in a move to promote a more consistent and transparent practice in meting out appropriate punishments.

The three-judge apex court - comprising Chief Justice Sundaresh Menon and Judges of Appeal Chao Hick Tin and Andrew Phang - set out three sentencing bands that correspond to how serious the rape is.

The levels of severity are based on the number and intensity of various aggravating factors in a case.

The sentencing range for Band 1 is 10 to 13 years' jail and six strokes of the cane; Band 2 is 13 to 17 years' jail and 12 strokes of the cane; and Band 3 is 17 to 20 years' jail and 18 strokes of the cane.

In doing so, the court dismantled the previous framework, which divided rapes into four categories: those with no aggravating or mitigating factors; those with specific aggravating factors; multiple rapes; and those committed by offenders who will remain a threat to society indefinitely.

This framework, set out by then Justice V.K. Rajah in 2006, had largely guided sentencing for rapists in the last 10 years.

Yesterday, Justice Chao noted that the old framework was a response to the "limitations" of the single benchmark sentence of 10 years' jail and six strokes of the cane set in 1993, which did not provide enough guidance.

The framework has "brought a measure of consistency" in the sentences imposed in rape offences but "suffers from several problems" that needed reform, he said.

For one thing, the four categories did not cover the full spectrum of circumstances in which rape may be committed, resulting in a "clustering of sentencing outcomes", he said.

Also, Category 2 lacked "conceptual coherence" and covered a wide range of situations of varying gravity. Cases can run the gamut from the violent rape of a young toddler to the rape of a domestic helper by her employer.

He noted that good sentencing guidelines should ensure consistency, maintain a level of flexibility and discretion for sentencing judges, encourage transparency in reasoning, and create a "coherent picture of sentencing for a particular offence".

As such, a "fundamental change" to the way the sentencing framework for rape is structured is required.

A judge who is sentencing a rapist should now look at "offence-specific" factors related to the way in which the crime was committed and the harm caused, to decide which band the offender falls under. Aggravating factors include group rape, premeditation, an abuse of trust, violence, and rape of a vulnerable victim.

Cases with no or very limited aggravating factors fall into Band 1; cases with two or more aggravating factors fall into Band 2; and extremely serious cases, based on the number and intensity of aggravating factors, fall into Band 3.

After determining the band, the judge should look at the circumstances of each offender to calibrate the sentence upwards or downwards. "Offender-specific" factors include whether there was remorse and the age of the offender.

Justice Chao made it clear that the benchmark sentences applied to convictions following trial. In cases where the offender pleads guilty, the court can assess the value of the plea as a mitigating factor. He noted that the new framework "does not effect a radical change in the sentencing benchmarks".

"For the most part, it seeks only to rationalise existing judicial practice to promote a more systematic, coherent, consistent and transparent approach towards sentencing in this area," he said.

The chance to review the sentencing framework arose from the case of cobbler Terence Ng Kean Meng, 46, who was appealing against his sentence of 13 years' jail and 12 strokes of the cane for statutory rape. (He had another sex charge and the total sentence was 14 years' jail and 14 strokes but he did not appeal against the other charge.)

In 2013, when he was 42, he befriended a 13-year-old schoolgirl and invited her to his flat.

After finding out she had run away from home, he offered to be her godfather. Her parents agreed.

They began spending time together and she agreed to have sex with him.

Applying the new framework to Ng's case, the court found the original sentence was appropriate and dismissed his appeal.

A version of this article appeared in the print edition of The Straits Times on May 13, 2017, with the headline '3 bands for sentencing rapists spelt out'. Print Edition | Subscribe