New Sentencing Framework for Voyeurism Offences in Singapore

In October 2020, Nicholas Tan Siew Chye, an undergraduate at Nanyang Technological University (NTU), followed a woman on campus before taking an upskirt video of her at a lift lobby. He was subsequently arrested and released on bail, but reoffended in February 2021 – this time filming a 17-year-old girl in her school uniform while they were both in a lift at a Housing Board block.

These are not the only incidents. In the span of 10 months, from January 2022 to September 2022 last year, 321 cases of voyeurism were reported to the police. It is clear that there is a non-negligible number of offenders, possibly, on the rise.

Against this backdrop, the High Court introduced a new sentencing framework in the recent sentencing of Tan. This article will discuss this framework in greater detail. It will cover:

• What is voyeurism
• The new sentencing framework in Nicholas Tan Siew Chye v Public Prosecutor (“Tan”)
• Application of the new sentencing framework in Tan
• The significance of the new framework 

What is Voyeurism?

Voyeurism is a clinical disorder characterised by recurrent sexual urges, fantasies, or behaviours involving observing an unsuspecting person who is naked, disrobing, or engaging in sexual activity. Examples of voyeurism would include filming others unclothed without their knowledge, peeping over or under toilet cubicle gaps to observe others’ private parts, or generally intentionally observing others engaging in a private act without their consent.

Voyeurism has been criminalised in Singapore. Specifically, the following acts of voyeurism are criminal offences under section 377BB of the Penal Code (PC):

• Intentionally observed the victim doing a private act (e.g. showering, getting undressed);
• Operating equipment with the intention of enabling oneself or another person to observe the victim doing a private act;
• Recording the victim doing a private act;
• Operating equipment with the intention of enabling oneself or another person to observe the victim’s genital region, namely their genitals, breasts (where the victim is a female), or buttocks (whether exposed or covered) that would otherwise not be visible; and
• Recording an image of the victim’s private parts, namely genitals, breasts (where the victim is a female), or buttocks (whether exposed or covered) that would not usually be visible;
• Installing equipment, or constructing or adapting a structure or part of it to enable oneself or another person to commit any of the acts mentioned above. (e.g. installing a hidden camera in the shower or affixing a camera to a bag so it can be used to film people while on the move)

The abovementioned acts must minimally be committed with the knowledge, actual or imputed, that they are done without the victim’s consent. In cases where the offender has made a recording of the victim doing a private act or of the victim’s private parts, a rebuttable presumption that the victim did not consent to it arises, and the offender must show evidence of the victim’s consent.

The focus of this article is the offence of voyeurism under section 377BB(4) of the PC – the operation of equipment with the intention of enabling oneself to observe the victim’s genital region.

Please refer to our other article for a more detailed overview of the crime of voyeurism in general, as well as the applicable defences and penalties. 

The New Sentencing Framework in Nicholas Tan Siew Chye v Public Prosecutor (“Tan”)

In the earlier case mentioned above, Tan was prosecuted in court and pleaded guilty to both offences. The District Judge imposed an aggregate imprisonment term of 7 weeks. However, an appeal was made for Tan’s sentence to be reduced to not more than 4 weeks’ imprisonment, on account of his strong propensity for reform given the active steps he took post-offence to seek psychiatric intervention. The High Court (HC) decided to provide a definitive ruling on the sentencing framework with respect to voyeurism offences.

As a starting point, the HC affirmed that deterrence, and not rehabilitation, is the main sentencing consideration where an adult offender is concerned. While the HC conceded that this is not a rule set in stone, it would take an “exceptional case” to warrant a shift of emphasis from deterrence to rehabilitation. In other words, deterrent sentencing principles would apply to most voyeurism cases.

The HC then proceeded to consider the appropriate sentencing framework for such cases. While the Young Independent Counsel (YIC) advocated for a different framework (“sentencing band framework”), the HC elected to draw on the two-stage, five-step sentencing framework set out in Logachev Vladislav v Public Prosecutor (“Logachev”). The HC explained the various strengths of the Logachev framework.

Briefly, the framework assists the court in addressing the broad range of common situations in which the offence may be committed, while also allowing the court to take into consideration the distinctive features of a particular case. The differences between the sentencing band framework and the Logachev framework will be elaborated on in a later section.

As stated earlier, the Logachev framework centres on five key steps. This section will go through the steps in detail.

Step 1: Identify the level of harm caused by the offence as well as the level of the offender’s culpability

The HC categorised the nature of harm caused by section 377BB(4) PC offence into three specific types:

1. Invasion of the victim’s privacy, in cases where there was unwanted observation of the victim’s private region, or the retention or dissemination of a record of the victim’s image;
2. Violation of the victim’s bodily integrity, in cases where the offender made physical contact with the victim in the course of committing the section 377BB(4) PC offence; and
3. Humiliation, alarm or distress, in cases where the victim was made aware of the offending conduct.

As for determining the culpability of the offender, the HC laid out a list of factors to consider:

• Whether the offender actually knew, or merely had reason to believe, that the victim had not consented to be observed;
• Degree of premeditation and planning;
• Stalking or following the victim;
• Type and sophistication of equipment used and whether it was concealed;
• Breach of relationship of trust with the victim;
• Steps taken to evade detection;
• Motivation for the offence; and
• Persistence of the offending conduct that is the subject of the charge.

The HC was careful to warn, however, of the risk of according double punishment for the same offence (i.e. double-counting). 

Steps 2 and 3: Indicative sentencing ranges and starting point

In determining the starting point for sentencing in voyeurism cases, and based on the considerations in Step 1, the HC laid out the following sentencing matrix (implemented on the basis of a first      offender):

Step 4: Offender-specific factors

The HC also affirmed a list of offender-specific factors that courts have typically considered in criminal offence cases. These factors may prove to be aggravating or mitigating in the sentencing: 

Step 5: The totality principle

Finally, the HC provided for further adjustments to the sentence under this step, in cases where the offender has been convicted of multiple charges. Relying on the totality principle, the court will therefore ensure that the aggregate sentence is sufficient and proportionate to the offender’s overall criminality. This is done via two limbs:

1. In the first limb, the court examines whether the aggregate sentence is substantially above the normal level of sentences for the most serious of the individual offences committed.
2. In the second limb, the court considers whether the effect of the sentence on the offender is crushing and not in keeping with his past record and his future prospects.

Crucially, should the aggregate sentence be considered excessive, the sentencing judge may opt for a different combination of sentences to run consecutively or adjust the individual sentences. The same can be held for a converse finding.

Application of the New Sentencing Framework in Tan 

The HC applied this new sentencing framework in Tan’s case as follows:

At the outset, the HC found that this case was not of an “exceptional” nature in terms of the circumstances surrounding it. Namely, Tan had not demonstrated an extremely strong propensity for reform, and there were no exceptional conditions in his life that were deemed by the court as conducive to helping him turn over a new leaf. As such, the dominating sentencing principle should be one of deterrence.

With regard to the length of the sentence, the HC was of the view that both offences committed by Tan were in the low harm category at Step 1. While the appellant did invade the victims’ privacy, the degree of such invasion was limited – Tan only observed the victims’ covered genitals for a brief period of time, and the video recordings were deleted shortly after the offences were committed. There was no indication that the appellant had viewed or disseminated the videos prior to deleting them. However, the HC commented that in Tan’s second offence, the harm caused was higher as Tan had made physical contact with the victim by touching the victim’s thigh and would likely have caused more trauma in light of the victim’s youth.

As for the offender’s culpability under Step 1, the HC deemed that it fell within the low category. This was because while Tan had admittedly followed both victims, he only did so for a brief duration leading up to the commission of the offences, suggesting a limited degree of determination.

Following its holdings in Step 1, the HC deemed the appropriate indicative sentencing range to be a fine or up to 4 months’ imprisonment. The District Judge’s prior ruling on Tan’s case was therefore affirmed – a starting point of 3 weeks’ and 4 weeks’ imprisonment for the first and second offences respectively.

Under Step 4, with reference to Tan’s first offence, the HC took into account mitigating factors such as the fact that Tan had pleaded guilty, his cooperation with authorities, and his demonstration of a propensity for reform by actively seeking psychiatric help. Accordingly, the HC calibrated the starting point of 3 weeks’ imprisonment to 1 week’s imprisonment. However, with respect to the second offence, as Tan had in fact reoffended on bail, the HC only slightly calibrated the sentence from 4 to 3 weeks’ imprisonment. The total sentence imposed was an aggregate term of 4 weeks’ imprisonment. As the sentence was not exceptionally harsh, the HC did not go into Step 5 of the framework.

Significance of the New Sentencing Framework 

The Logachev framework was compared with the sentencing bands approach proposed by the YIC in Tan. While the HC conceded that there were substantial similarities between the two approaches, it ultimately endorsed the Logachev framework, as it provided for a clearer and more systematic evaluation of the seriousness of an offence. This, in turn, allows for more consistent and coherent sentencing precedents in voyeurism cases. 

With the public increasingly calling for a more consistent front against the rising trend of voyeurism, the framework adopted by the Singapore courts provides a coherent legal solution to the previously uncertain issue of sentencing for voyeurism cases. 

—

In summary, the HC in Tan has introduced a more coherent framework for sentencing crimes involving voyeurism. The framework promotes greater consistency and is likely to make it more predictable for the courts to determine sentences for similar offences.

That being said, if you have been charged with a similar offence, you should consult a criminal defence lawyer for further advice on how the framework might apply to you, and if there are any factors that may contribute towards mitigating your sentence.