Case Summaries

Public Prosecutor v BDB


29 November 2017

Media Summary

Public Prosecutor v BDB

Criminal Appeal No 26 of 2016

Decision of the Court of Appeal (delivered by Sundaresh Menon CJ)

Background to the appeal

1             This was an appeal brought by the Public Prosecutor against the aggregate sentence imposed by a High Court judge (“the Judge”) on the respondent, BDB (“the Respondent”), who repeatedly abused her own son (“A”) between March 2012 and 1 August 2014. On the last of these occasions, A was abused to such an extent that he died. The Respondent had choked A by pushing her right hand against his neck and lifting him off the ground with his back against the wall before letting go, whereupon he fell to the floor. After A was conveyed to the hospital, he underwent emergency surgery. Apart from his head injuries, 43 other external injuries at different stages of healing were observed all over his body and five areas of internal haemorrhage were also found. A eventually passed away after his family members decided to take him off life support in view of the poor prognosis.

2             This case was exacerbated by the fact that the abuse of A had continued even after the involvement of the Child Protective Service (“the CPS”) of the Ministry of Social and Family Development. The Respondent had earlier been separated from A for a time after the CPS intervened, but she later regained custody of A and then continued to ill-treat him.

3             A total of six charges – two under s 325 of the Penal Code (Cap 224, 2008 Rev Ed) for voluntarily causing grievous hurt to A and four under s 5 of the Children and Young Persons Act (Cap 38, 2001 Rev Ed) (“the CYPA”) for ill-treating A – were brought against the Respondent. The Prosecution proceeded with the two s 325 charges (the first and sixth charges) and two of the CYPA charges (the third and fourth charges), with the remaining two CYPA charges (the second and fifth charges) taken into consideration for sentencing purposes. The Respondent pleaded guilty before the Judge, who meted out an aggregate sentence of eight years’ imprisonment. The sole question in this appeal by the Prosecution was whether that sentence was manifestly inadequate.

4             The Court of Appeal examined the relevant sentencing principles for violent offences against children and young persons that led to serious injury or death, and set out the sentencing approach that should guide the courts in this context. The court also urged legislative reform to afford the courts the power to impose enhanced penalties for certain offences against vulnerable victims, in particular, children and young persons.

The court’s grounds of decision

The relevant sentencing principles

5             The court recognised the special need to protect certain groups of vulnerable persons, such as the handicapped, the incapacitated, children and the elderly, and noted that in the specific context of violence against children, such violence would not be tolerated and would be met with the full force of the law. It stated that deterrence was an especially weighty consideration in offences against young victims given the gross physical disparity between the victim and the offender in such cases, the offender’s abuse of trust and authority and the difficulty of detecting and preventing such offences, which meant that the abuse could continue over a sustained period, leading to an accumulation of grievous injuries. The court also held that a parent who betrayed the ultimate relationship of trust and authority between a parent and his or her child stood at the furthest end of the spectrum of guilt. ([34]–[37])

6             After reviewing the sentencing precedents involving offenders who inflicted physical violence on young victims, the court set out a two-step sentencing approach to be taken in cases prosecuted under s 325 of the Penal Code: (a) first, an indicative starting point for sentencing should be determined based on the seriousness of the injury; (b) second, the indicative starting point should then be adjusted either upwards or downwards based on an assessment of the offender’s culpability and the presence of relevant aggravating and/or mitigating factors. Where the grievous hurt took the form of death, the indicative starting point should be a term of imprisonment of around eight years; whereas in a case where the grievous hurt took the form of multiple fractures of the type and gravity described in the sixth charge against the Respondent, the indicative starting point should be a term of imprisonment of around three years and six months. ([55]–[56]) In addition, where death was caused, a sentence of 12 or more strokes of the cane might be warranted; whereas where non-fatal serious injury was caused, a sentence of between six and 12 strokes of the cane might be considered. ([76])

7             The relevant aggravating factors which the court would take into account for sentencing purposes included: (a) the extent of deliberation or premeditation; (b) the manner and duration of the attack; (c) the victim’s vulnerability; (d) the use of any weapon; (e) whether the attack was undertaken by a group; (f) any relevant antecedents on the offender’s part; and (g) any prior intervention by the authorities. ([63]–[70]) The court accepted that mitigating value might be attributed to an offender’s genuine remorse, as well as to an offender’s mental condition if the evidence established that such mental condition had substantially diminished the offender’s mental responsibility for his conduct at the time of the offence. The court, however, held that an offender’s difficult personal circumstances could never justify or excuse the abuse of young victims. ([72]–[75])

8             With regard to the ill-treatment of young victims prosecuted under s 5 of the CYPA, the court held that the sentencing considerations of deterrence and retribution would be just as relevant, and similarly, the aggravating and mitigating factors outlined above would be applicable. ([85]) The court also noted that in general, offenders who wilfully inflicted injury on a child or young person might be regarded as being more culpable than offenders who acted unreasonably in doing so. ([86])

The court’s reasons for disagreeing with the Judge’s sentences

9             The court disagreed with the sentences imposed by the Judge for several reasons. First, the court was satisfied that the Judge erred in finding that the sentencing objective of specific deterrence was not relevant. The court held that it would generally be untenable to contend that deterrence as a sentencing consideration was displaced where an offence was committed out of anger, absent clear evidence that the offender was unable to stop himself from committing the act in question. Further, anger should not be accepted as a mitigating factor in child abuse cases. ([91]–[98])

10          Second, the court agreed with the Prosecution that the Judge placed undue weight on certain alleged mitigating factors. The Respondent’s personality aberrations, which were personality traits that made the Respondent more likely than others to cope maladaptively when experiencing stressful situations, should not reduce the Respondent’s culpability. These personality aberrations did not amount to an established mental disorder and had not substantially impaired the Respondent’s mental responsibility for her conduct at the material time. ([100]–[108]) As for the Judge’s characterisation of the Respondent’s offences as “crimes of passion”, the court disagreed and held that the Respondent’s violent attacks on A were not the actions of a person who had lost her senses. On the contrary, the Respondent’s assaults on A were responses to specific acts of A, and were cruel and vindictive. ([109]–[114]) Lastly, the Respondent’s alleged inability to cope with her financial and social problems could not justify or mitigate her abuse of A. ([115])

11          In addition, the court held that the Judge did not accord sufficient weight to several aggravating factors, namely: (a) the extreme youth of A; (b) the betrayal by the Respondent, A’s biological mother, of the ultimate relationship of trust and dependence between a parent and his or her child; (c) the viciousness of the Respondent’s cruel acts of abuse and the severity of A’s injuries; and (d) the prior intervention of the CPS in between the episodes of abuse in 2012 and 2014. ([117]–[122])

The sentences imposed on appeal

12          On appeal, the court increased the imprisonment sentence for the first charge from seven years to nine years and six months after: (a) adjusting the indicative starting point of around eight years’ imprisonment upwards to nine years’ imprisonment to take into account the Respondent’s high degree of culpability as well as the various aggravating factors present; and (b) further enhancing the imprisonment sentence by six months in lieu of the 14 strokes of the cane that the court would have imposed if the Respondent had not been exempted from caning. ([124]–[128]) As for the sixth charge, the court increased the imprisonment sentence from two years to four years after adjusting the indicative starting point of around three years and six months’ imprisonment upwards in view of the aggravating factors present. ([129]–[130]) In respect of the CYPA charges, the court did not disturb the sentences imposed by the Judge (six months’ and one year’s imprisonment for the third and fourth charges respectively) because the agreed Statement of Facts did not allow the court to draw any conclusion as to the precise nature and seriousness of the injuries that were inflicted on A in relation to those charges. ([132]) With regard to the aggregate sentence, the court agreed with the Prosecution that the sentences for the first, fourth and sixth charges should run consecutively so as to yield an aggregate sentence of 14 years and six months’ imprisonment. ([133]–[136])

Coda on law reform of offences against vulnerable victims

13          In closing, the court invited Parliament to consider affording the courts the power, when dealing with crimes against vulnerable victims, in particular, those against children and young persons, to enhance the permitted punishment to one and a half times the prescribed maximum penalty for certain offences. The court noted that such an approach was not new, and stated that if there had been such a provision affording the court this discretion in this case, it would not have hesitated to enhance the Respondent’s sentence for the first charge by one and a half times given the gravity of that offence and the significant aggravating factors present. ([139]–[143])

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.