SINGAPORE - Rape is a more severe sexual offence than another form of penetration, a five-judge Court of Appeal ruled on Monday (Sept 25), in a case involving a former Sentosa beach patrol officer who faced one charge of each offence.
As a result, the court lowered Pram Nair's overall sentence by two strokes of the cane. This came after it reduced his sentence for penetrative sexual assault involving the use of one or more fingers - also known as digital penetration.
The apex court said it disagreed with the High Court judge who had, in October last year, imposed equal sentences for both charges as he was of the view that the sentence for digital penetration should be the same as that for rape.
Nair's overall sentence now stands at 11 years and 19 days' jail, and 10 strokes of the cane.
Delivering its decision on Monday, the court held that "at the highest level of abstraction, there is an intelligible difference between penile penetration... and digital penetration".
"The benchmark sentences should not, therefore, be equated," the court concluded.
First, penile penetration carries the risk of unwanted pregnancy and of transmitting sexual diseases, which would have far-reaching consequences for the victim, said the court.
Second, penile penetration is a more intimate act than digital penetration; the abuse of such an act, therefore, represents a greater degree of intrusion into the sexual autonomy of the victim and a greater degree of exploitation by the offender as he derives more gratification from it.
However, the court agreed that its framework for sentencing rapists, issued in May, should be transposed to that for digital penetration because both offences share many aggravating factors.
The court laid down three sentencing bands for digital penetration, depending on the level of severity of the case.
The sentencing range for Band 1 is seven to 10 years' jail and four strokes of the cane; Band 2 is 10 to 15 years' jail and eight strokes of the cane; and Band 3 is 15 to 20 years' jail and 12 strokes of the cane.
In comparison, for rape, 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 Nair's case, the court upheld his sentence for rape but found that his sentence for digital penetration was too high.
Nair had appealed against his conviction and sentence for raping and sexually assaulting a drunken partygoer at Siloso Beach five years ago.
The victim was a 20-year-old relief teacher who was attending a party with a female friend at Wave House, a club and restaurant at the beach, on the night of May 5, 2012.
Nair, who had by then finished his shift, approached her group and played drinking games with them. This included pouring liqueur into the victim's mouth for 20 seconds. After gulping down the alcohol, the victim began experiencing memory blackouts.
Some time later, the friend decided to leave and went to retrieve the victim's bag at another section of the club. When she returned, the victim and Nair were gone.
The victim testified that she woke up on the beach from the pain of Nair raping her. She cried and repeatedly told him "no" but was too weak to push him off.
Two other partygoers walking on the beach called the police when they saw Nair on top of the victim.
Meanwhile, the victim's friend spent about 20 minutes looking for her and Nair before she found them on the beach.
During his trial, Nair said the victim was not as drunk as she claimed to have been. He said she had flirted with him that night and agreed to have sex with him.
His story was rejected by the High Court and, similarly, by the Court of Appeal, which upheld the conviction.