In the 2017 case of GBR v PP, the Singapore High Court laid down a sentencing framework for aggravated outrage of modesty cases under section 354(2) of the Penal Code. This article will explore this sentencing framework for those convicted of outraging the modesty of victims under 14 years old.
Outrage of Modesty Where the Victim was Under 14
Section 354(2) of the Penal Code criminalises assaults and the use of criminal force to a person under 14 years old (regardless of the victim’s gender) with the intention or knowledge that the offender will outrage the modesty of that person.
Offenders convicted of outraging the modesty of victims aged 14 and above can face a fine, caning and/or up to 2 years’ jail. This punishment is the same for outrage of modesty cases involving victims under 14, except that the maximum jail term is increased to 5 years.
As mentioned in GBR v PP, section 354(2) of the Penal Code is therefore intended to provide an enhanced penalty where outrage of modesty is committed against a child under 14 years old.
How Will the Court Decide the Sentence of Outrage of Modesty Offenders Whose Victims were Under 14?
While sentencing an offender for outraging the modesty of a victim under 14, the court will take into account certain offence-specific factors, the sentencing bands and the general aggravating and mitigating factors.
Offence-specific factors are factors which relate to how the offence was committed. They concern the manner and mode in which the offence was committed, and the degree of harm caused to the victim.
There are 3 main categories of such factors, the first 2 of which concern the offender’s culpability while the third relates to the harm caused to the victim. They are the:
- Degree of sexual exploitation of the victim
- Circumstances of the offence
- Harm caused to the victim
(1) Degree of sexual exploitation of the victim
The court will consider the degree to which the victim was sexually exploited. This includes which part of the victim’s body had been touched, how it was touched and how long the outrage of modesty went on for.
The offence is aggravated if the victim’s private parts had been touched, if there had been skin-to-skin contact, and if the sexual exploitation had continued over a sustained period.
(2) Circumstances of the offence
The circumstances of the offence are also relevant considerations. These include:
- The presence of premeditation. If the offence is premeditated rather than committed on the spur of the moment, the offender is generally more culpable. This is because planned lawbreaking constitutes a greater threat to society.
- The use of force or violence. If the accused used force or violence in the commission of the offence, then he or she will generally receive a harsher sentence. In the case of PP v Azhar Bin Mohamed, the accused was charged with the outrage of modesty of his 8 or 9-year-old stepdaughter. When she refused to remove her shirt, he caned her and forcefully removed her clothes. He had done so on another occasion as well. Thus, the use of force was an aggravating factor.
- The abuse of a position of trust. It is an aggravating factor if the accused had abused his or her position of trust. This is especially if the abuse of trust had been in an inter-familial context, as such cases are more difficult to identify. Instances of abuse of a position of trust can be categorised into 2 groups:
- Where the accused is in a position of responsibility towards the victim. For instance, if the accused is the victim’s parent, medical practitioner, or teacher.
- Where the victim has placed her trust in the accused by virtue of his office of employment. For example, a bus driver and a school child.
- The use of deception. For instance, pretending that one is administering treatment using “special powers”, or pretending to give the victim a massage. This would be an aggravating factor that attracts a harsher sentence.
- Aggravating acts accompanying the outrage of modesty. This would include showing the victim a pornographic film or giving the victim sedating drugs before outraging the victim’s modesty.
- Exploitation of a vulnerable victim. It would be an aggravating factor if the victim was materially younger than the age ceiling of 14, or suffering from mental or physical disabilities. A more severe sentence may be imposed to deter would-be offenders from targeting such victims.
(3) Harm caused to the victim
The court will also use the victim’s victim impact statement to determine the physical and/or psychological harm caused to the victim (if any) as a result of the accused’s acts.
Once the severity of the offence has been determined based on the above offence-specific factors, the court will place the offence within an appropriate band of punishment.
Depending on the facts and circumstances of the case, caning may be imposed as an additional deterrent. The starting point is that caning will be imposed where a victim’s private parts or sexual organs are intruded upon.
There are 3 bands of punishment:
- Band 1: Less than 1 year’s jail
- Band 2: 1 to 3 years’ jail
- Band 3: 3 to 5 years’ jail
Band 1: Less than 1 year’s jail
Band 1 includes cases with at most 1 aggravating factor. For example, those that include a fleeting touch or a touch over the victim’s clothes. The offender would not have intruded into the victim’s private parts. Caning is generally not a punishment for offenders under this category.
For example, in the case of PP v Palanisami Mohankumar, the accused was jailed for 4 months for resting his hand on an 11-year-old girl’s thigh.
Band 2: 1 to 3 years’ jail
Band 2 cases generally have 2 or more aggravating factors. Caning will nearly always be imposed, with the starting point of 3 strokes.
The lower band of cases under Band 2 lack skin-to-skin contact, but may have other aggravating factors like the abuse of a position of trust.
However, the higher end of the Band 2 spectrum involves cases with skin-to-skin contact of the victim’s private parts or sexual organs, or an aggravating factor of deception.
An example of a Band 2 case is GBR v PP, where the accused was eventually sentenced to 25 months’ jail and 4 strokes of the cane for outraging the modesty of his 13-year-old niece. The court took into account the following 4 aggravating factors when determining the accused’s sentence:
- There had been skin-to-skin contact with the victim’s private parts for a substantial period of time: The accused had fondled the victim’s breasts for about 5 minutes. He then touched and licked her vagina for another 5 minutes.
- The offence was premeditated: The accused had offered the victim a place to study at his flat on the premise that her parents were in a dispute, and he knew that she would be alone in his flat.
- There had been an abuse of position of trust in a familial context: The accused was the victim’s uncle. The victim also hesitated in telling her parents or aunt what had happened as she was afraid they would not believe her.
- The victim had suffered psychologically: After the episode, the victim experienced distress and had self-harm tendencies.
Band 3: 3 to 5 years’ jail
Band 3 cases are the most serious instances of outrage of modesty. They generally involve 3 or more aggravating factors.
Examples of Band 3 cases would be those involving:
- The exploitation of a particularly vulnerable victim;
- A serious abuse of a position of trust; and/or
- The use of violence or force against the victim.
The court in GBR v PP also recommended a minimum of 6 strokes of the cane.
For example, in the case of PP v BLV, the accused was convicted of 3 charges of outraging the modesty of his daughter while she was between 11-13 years old. The following aggravating factors had been present:
- The high degree of abuse of position and trust in a familial context: The victim was the accused’s biological daughter.
- The intrusive nature of the acts: The accused had rubbed his penis against the victim’s face while she was on the floor, with some degree of coercion. He also touched and rubbed the area outside the victim’s vagina and attempted to digitally penetrate it.
- The use of force: The accused had forcefully pulled the victim onto a bed despite her refusal. The accused had even continued with some degree of force even though the victim turned her body away. He then rubbed his penis against her vagina and anus.
- The victim experienced fear: The accused’s conduct of rubbing his penis against the vicitm’s face caused her fear.
As a result, the accused was sentenced to 3 years’ jail and 6 strokes of the cane for the first 2 charges of outrage of modesty, and 3 years’ jail and 6 strokes for the third charge.
General Aggravating and Mitigating Factors
Besides offence-specific factors, the court will also consider general aggravating and mitigating factors. Examples of aggravating factors include:
- The number of charges taken into consideration
- A lack of remorse
- Relevant past offences which show that the accused is recalcitrant
Mitigating factors include:
- A timely plea of guilt
- Mental disorders or intellectual disability relating to the offence, e.g. the accused’s condition reduced his or her ability to understand the nature of the act
In GBR v PP, the accused did not plead guilty and was thus not eligible for a sentencing discount. Instead of showing remorse, he also put down her character and made up motives for her allegedly making untrue accusations against him.
What if the Accused is Unfit for Caning?
An accused may be certified to be unfit for caning if he is above 50 or certified to be medically unfit for caning. If so, the court may enhance the accused’s jail term by up to 12 months if there are grounds for doing so.
This could be where there had been substantial aggravating factors like the use of violence, or if the victim belonged to a particularly vulnerable class of victims (e.g. victims significantly younger than 14).
In GBR v PP, the High Court was of the view that compared to cases involving victims aged 14 or older, greater punishment was required for outrage of modesty cases involving victims under 14. The introduction of a sentencing framework for such aggravated outrage of modesty offences also improves consistency in sentencing across cases.
While the exact sentence meted out ultimately depends on the facts of the case, GBR v PP has shown the courts’ tough stance towards outrage of modesty committed against victims under 14. It also provides greater clarity on how persons convicted of this offence can expect to be sentenced.