Case Summaries

Public Prosecutor v ASR [2019] SGCA 16

SUPREME COURT OF SINGAPORE

11 March 2019

Case summary

Public Prosecutor v ASR [2019] SGCA 16

Criminal Appeal No 10 of 2018

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Decision of the Court of Appeal (delivered by Chief Justice Sundaresh Menon):

CoA upholds sentence of reformative training for intellectually disabled teenager convicted of serious sexual offences and clarifies applicable sentencing principles.

Background

  1. In 2014, the respondent raped the victim after threatening to pull a knife on her; he also inserted his finger and a blunt object into her vagina. He was 14 at that time and had an intellectual disability, with an IQ of 61 and a mental age of between eight and ten. For his actions, he was charged under the Penal Code (Cap 224, 2008 Rev Ed) with one count of aggravated rape and two counts of sexual assault by penetration. In 2017, after he had turned 16, he pleaded guilty to the three charges and consented to having six other charges taken into consideration for sentencing purposes. The High Court sentenced him to reformative training: at [9], [10], [12][14] and [28].

  2. The Prosecution appealed, maintaining its position below that the respondent should be sentenced to between 15 and 18 years’ imprisonment and at least 15 strokes of the cane. It submitted that the High Court had wrongly held that rehabilitation was the dominant sentencing objective, mainly because the respondent’s offences were serious, the harm caused was severe, the respondent was recalcitrant and his intellectual disability made him unsuitable for reformative training. The Prosecution contended that a long imprisonment term was the only suitable sentencing option, principally because the respondent had a high risk of recidivism, and the public needed to be protected from him: at [32][33].

  3. The respondent defended the High Court’s decision, arguing that the benefit of reformative training should not be denied to intellectually disabled persons such as him. Reformative training was suitable because it would be in both his and society’s long-term interests that he be rehabilitated, and because his culpability, and thus the seriousness of his offences, had been reduced by his intellectual disability: at [35].

  4. The parties also addressed the effect of s 83 of the Penal Code, which provides an absolute defence to criminal liability for any child “above 7 years of age and under 12” who was not of sufficient maturity of understanding to judge the nature and consequences of his offending conduct at the time of such conduct. The Prosecution submitted that s 83 did not apply because the word “age” in the provision referred to an offender’s chronological age rather than his mental age, and the respondent was above 12 at the time of his offences. Furthermore, the differentia of chronological age did not render the provision unconstitutional. The respondent, in contrast, contended that s 83 ought to be read purposively to apply to offenders whose mental age was between seven and 12 regardless of whether their chronological age was above or below 12; and if that were not the case, then the provision would be unconstitutional for unfairly excluding the benefit of the defence from those of insufficient maturity by reason only of their mental age: at [29][31] and [34].

    The Court of Appeal’s decision

  5. The Court of Appeal (“the Court”) dismissed the appeal after hearing the parties. In its detailed grounds of decision, the Court set out its reasoning on five broad issues which had arisen: (a) the extent of the respondent’s intellectual disability; (b) the applicability and constitutionality of s 83 of the Penal Code; (c) the appropriate sentencing framework for intellectually disabled young offenders convicted of serious offences; (d) whether rehabilitation was the dominant sentencing objective in this case; and (e) in the light of the applicable sentencing objectives in this case, whether reformative training was the appropriate sentencing option: at [36][41].

    Issue 1: The extent of the respondent’s intellectual disability

  6. The Court considered that the extent of the respondent’s intellectual disability centred around the significance of his IQ, the degree to which his intellectual disability affected his ability to control his impulses, and the significance of his mental age. As to his IQ, the evidence supported the view that at the time of his offences, he functioned in the extremely low range of intelligence. As to his impulse control, the evidence was clear, and the Prosecution accepted, that his intellectual disability impaired his impulse control ability: at [43], [49] and [68][72].

  7. The concept of mental age, in the Court’s view, was not heterodox, outdated or unreliable, contrary to the Prosecution’s submission. Instead, it was useful as a heuristic tool for approximating the intellectual capacity of an offender and, in turn, assessing his culpability for sentencing purposes. It simply needed to be understood in the context of the offender’s life experiences and circumstances. This view was supported by the cases. Here, it was meaningful to consider that the respondent had a mental age of between eight and ten at the time of his offences. There was no evidence that he had by then accumulated life experiences and participated in activities which would suggest that he was more mature than his mental age indicated: at [50], [51], [57], [58], [63], [66] and [67].

    Issue 2: Section 83 of the Penal Code

  8. The Court held that there was no ambiguity in the ordinary meaning of the word “age” in s 83 of the Penal Code that needed to be resolved by purposive interpretation. One aspect of giving words in a legislative provision their ordinary meaning was that the words in question meant what they were understood to mean at the time they were adopted by the Legislature. When the Penal Code was adopted, the concept of mental age had not been developed, so “age” in s 83 could not mean mental age. Nor did the concept of chronological age logically extend to mental age. Moreover, other textual elements of s 83 and the Penal Code supported this interpretation. The respondent, being above 12 at the time of his offences, therefore could not rely on s 83: at [76][84].

  9. This reading of s 83 did not make the provision unconstitutional. It did not violate the respondent’s right to equal protection under Art 12(1) of the Constitution because the differentia of chronological age bore a rational relation to the provision’s objective of excusing young children from criminal liability and protecting them from the harshness of the criminal justice system. Nor did s 83 violate Art 9(1) by being inconsistent with any higher law or being so arbitrary and absurd that it did not constitute law: at [85][90].

    Issue 3: The appropriate sentencing framework

  10. The Court held that the appropriate sentencing framework for intellectually disabled young offenders convicted of serious offences was the two-step approach laid down by the High Court in Public Prosecutor v Mohammad Al-Ansari bin Basri [2008] 1 SLR(R) 449. This consisted of, first, considering whether rehabilitation remained the dominant sentencing consideration (it being presumptively so in the case of young offenders), and, second, choosing the appropriate sentencing option in the light of the answer at the first step. As a general rule, whether conditions existed to make rehabilitative sentencing options viable was a factor properly considered at the second step because it concerned the operational question of how rehabilitation might be achieved, and not the normative question of whether it would be in society’s best interests that the offender be rehabilitated. In this case, therefore, the respondent’s alleged unsuitability for reformative training by reason of his intellectual disability was not a reason for displacing rehabilitation as the presumptive dominant sentencing objective, contrary to the Prosecution’s submission: at [94], [96], [98], [99] and [102].

    Issue 4: Whether rehabilitation was displaced

  11. Whether rehabilitation was displaced as the dominant sentencing consideration turned largely on the respondent’s state of mind at the time of his offences. In the Court’s view, the evidence showed that the respondent was of extremely low cognitive ability, and this significantly reduced his culpability. His intellectual disability impaired his impulse control ability, and he manifested a limited understanding of the nature and consequences of his offences as well as their legal and moral wrongfulness. Coupled with his youth, this made rehabilitation the dominant sentencing objective: at [103] and [106][113].

  12. Rehabilitation was not displaced from this position by other sentencing objectives. Deterrence carried minimal weight because it was predicated in part on the cognitive normalcy of the offender, which, in this case, was absent. Rehabilitation was preferred to incapacitation as the method of protecting the public from the respondent because he was a young offender. In this regard, the Prosecution was wrong to emphasise that the court was fundamentally engaged in a “risk assessment” exercise because this failed to engage the specific principles justifying the importance of rehabilitating young offenders: at [115] and [121]–[124].

  13. Retribution did not easily lend itself to being treated as a dominant sentencing objective because it simply required, in the context of sentencing, that the sentence imposed be commensurate with the offender’s culpability and the harm caused. But it was possible for retribution to be “displaced” as a sentencing consideration to some degree where the court was satisfied that the punishment should not correspond completely to the offender’s culpability and the harm caused, in order, for example, to achieve an outcome-focused objective such as incapacitation. In such cases, it was especially important that the court carefully apply any applicable sentencing framework and the totality principle to ensure that all things considered, the punishment fit the crime: at [131][133].

    Issue 5: The appropriate sentencing option

  14. The Court considered probation inappropriate in this case because it did not recognise the seriousness of the respondent’s offences, nor would it provide the respondent the structured environment that was necessary to manage his high risk of recidivism. Long-term imprisonment with caning was also inappropriate because it was principally a deterrent sentence and a form of incapacitation, and these objectives had no rational application to the respondent. While the Prosecution claimed that customised rehabilitation could be provided in prison, it did not explain why that could not similarly be provided in reformative training, given that both regimes were run by the Singapore Prisons Service: at [135][140].

  15. The Prosecution’s proposed sentence was disproportionate. It was based on sentencing frameworks that were not promulgated with intellectually disabled offenders such as the respondent in mind. In addition, it violated both limbs of the totality principle, in that: (a) it was significantly higher than the usual range of sentences imposed for the most serious of the respondent’s offences; and (b) it was also crushing on the respondent, and not in keeping with his past record and future prospects. On the other hand, reformative training was proportionate, having regard to the sentences imposed for offences committed in similar circumstances. Furthermore, limitations in the sentencing regime were no justification for disproportionate sentencing: at [146][153], [157] and [158].

    Conclusion

  16. In the end, the Court was faced with a choice between imposing a term of between 15 and 18 years’ imprisonment and at least 15 strokes of the cane, and imposing a term of incarceration at a reformative training centre of up to three years. If those were both sub-optimal options, then in all the circumstances, the latter was the less imperfect and only principled option, especially considering that the respondent had already been incarcerated for almost four years. The sentence of reformative training could not and would not be backdated, and in all the circumstances, the Court was satisfied that this was the appropriate course: at [159].

    This summary is provided to assist in the understanding of the Court’s grounds of decision. It is not intended to be a substitute for the reasons of the Court. All numbers in bold font and square brackets refer to the corresponding paragraph numbers in the Court’s grounds of decision.

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