BPH v Public Prosecutor: Sentencing Framework for Sexual Assault by Penetration under Section 376 of the Penal Code
The Court of Appeal of Singapore heard two appeals, BPH v Public Prosecutor and BVZ v Public Prosecutor, concerning the sentencing framework for sexual assault by penetration under s 376 of the Penal Code. The court clarified that the Pram Nair sentencing framework applies to all permutations of sexual penetration under s 376 and that there is no hierarchy of severity among the various permutations. Both appeals against sentence were dismissed.
1. Case Overview
1.1 Court
Court of Appeal of the Republic of Singapore1.2 Outcome
Appeals dismissed.
1.3 Case Type
Criminal
1.4 Judgment Type
Grounds of Decision
1.5 Jurisdiction
Singapore
1.6 Description
The Court of Appeal clarified the sentencing framework for sexual assault by penetration under s 376 of the Penal Code, holding that the Pram Nair framework applies to all permutations.
1.7 Decision Date
2. Parties and Outcomes
| Party Name | Role | Type | Outcome | Outcome Type | Counsels |
|---|---|---|---|---|---|
| Public Prosecutor | Respondent | Government Agency | Appeal Dismissed | Won | James Chew of Public Prosecutor Selene Yap of Public Prosecutor Yvonne Poon of Public Prosecutor Mohamed Faizal of Public Prosecutor Winston Man of Public Prosecutor |
| BPH | Appellant | Individual | Appeal Dismissed | Lost | |
| BVZ | Appellant | Individual | Appeal Dismissed | Lost |
3. Judges
| Judge Name | Title | Delivered Judgment |
|---|---|---|
| Sundaresh Menon | Chief Justice | No |
| Judith Prakash | Judge of Appeal | No |
| Tay Yong Kwang | Judge of Appeal | Yes |
| Steven Chong | Judge of Appeal | No |
| Woo Bih Li | Judge | No |
4. Counsels
| Counsel Name | Organization |
|---|---|
| James Chew | Public Prosecutor |
| Selene Yap | Public Prosecutor |
| Yvonne Poon | Public Prosecutor |
| Mohamed Faizal | Public Prosecutor |
| Winston Man | Public Prosecutor |
| Derek Kang Yu Hsien | Cairnhill Law LLC |
| Chu Weng Yan Kathy | Cairnhill Law LLC |
4. Facts
- BPH, the maternal grandfather of VB, committed outrage of modesty and sexual assault by penetration against VB.
- VB was 7-8 years old at the time of the offences.
- BPH pleaded guilty to sexual assault by penetration and outrage of modesty.
- BVZ committed sexual assault by penetration and outrage of modesty against V1 and V4.
- BVZ caused hurt by means of poison to V2.
- V1, V2, V3 and V4 were all 14 years old at the time of the offences.
- BVZ pleaded guilty to sexual assault by penetration, causing hurt by means of poison, and outrage of modesty.
5. Formal Citations
- BPH v Public Prosecutor and another appeal, Criminal Appeal No 29 of 2018 and Criminal Appeal No 19 of 2019, [2019] SGCA 64
6. Timeline
| Date | Event |
|---|---|
| BPH committed outrage of modesty against VB. | |
| BPH confined in Drug Rehabilitation Centre. | |
| BPH confined in Drug Rehabilitation Centre. | |
| BPH released on temporary release scheme. | |
| BPH committed sexual assault by penetration against VB. | |
| VB disclosed the offences to his mother. | |
| BPH remanded. | |
| BVZ committed first sexual penetration charge against V1. | |
| BVZ committed outrage of modesty against V4. | |
| BVZ committed second sexual penetration charge against V1. | |
| V1 and V2 were with V3 at V3’s home. | |
| BVZ caused hurt by means of poison to V2. | |
| BVZ committed offences against the four female victims. | |
| Criminal Law Reform Bill (No 6 of 2019) was read a second time. | |
| Court hearing for BPH v Public Prosecutor and BVZ v Public Prosecutor. | |
| Grounds of decision issued. |
7. Legal Issues
- Sentencing Framework for Sexual Assault by Penetration
- Outcome: The court held that the Pram Nair sentencing framework applies to all permutations of sexual penetration under s 376 of the Penal Code and that there is no hierarchy of severity among the various permutations.
- Category: Substantive
- Sub-Issues:
- Application of Pram Nair framework
- Hierarchy of severity among different forms of sexual penetration
- Related Cases:
- [2017] 2 SLR 1015
- Abuse of Trust as an Aggravating Factor
- Outcome: The court clarified that the focus is on the nature of the relationship between the offender and the victim, not the harm visited on the victim.
- Category: Substantive
- Related Cases:
- [2017] 2 SLR 449
8. Remedies Sought
- Review of Sentence
9. Cause of Actions
- Sexual Assault by Penetration
- Outrage of Modesty
- Causing Hurt by Means of Poison
10. Practice Areas
- Criminal Law
- Sentencing
- Sexual Assault
11. Industries
- No industries specified
12. Cited Cases
| Case Name | Court | Affirmed | Citation | Jurisdiction | Significance |
|---|---|---|---|---|---|
| Pram Nair v Public Prosecutor | Court of Appeal | Yes | [2017] 2 SLR 1015 | Singapore | Established the sentencing framework for sexual assault by way of digital-vaginal penetration, which the current judgment clarifies and extends to other forms of sexual penetration. |
| Public Prosecutor v BVZ | High Court | Yes | [2019] SGHC 83 | Singapore | Case where the High Court applied the Pram Nair framework broadly to all forms of sexual penetration set out in s 376 of the Penal Code. |
| Ng Kean Meng Terence v Public Prosecutor | Court of Appeal | Yes | [2017] 2 SLR 449 | Singapore | Introduced a two-step sentencing framework for rape, which was adapted in Pram Nair for digital-vaginal penetration. |
| Public Prosecutor v Tan Meng Soon Bernard | High Court | Yes | [2018] SGHC 134 | Singapore | Case where the High Court extended the Pram Nair framework to fellatio, noting that the Penal Code does not draw bright lines separating different forms of sexual penetration not amounting to rape. |
| Adam bin Darsin v Public Prosecutor | Court of Appeal | Yes | [2001] 1 SLR(R) 709 | Singapore | Case where the Court of Appeal took the approach that anal intercourse was more serious than fellatio; distinguished in Bernard Tan. |
| Public Prosecutor v Yap Weng Wah | High Court | Yes | [2015] 3 SLR 297 | Singapore | Case where the High Court followed Adam bin Darsin v Public Prosecutor; distinguished in Bernard Tan. |
| Public Prosecutor v BMD | High Court | Yes | [2013] SGHC 235 | Singapore | Case where the High Court considered that fellatio and penile-anal penetration were of the same severity and both were more serious than digital-anal penetration. |
| BMD v Public Prosecutor | Court of Appeal | Yes | [2015] SGCA 70 | Singapore | Appeal of Public Prosecutor v BMD where the Court of Appeal affirmed the sentences imposed by the High Court. |
| Public Prosecutor v BAB | Court of Appeal | Yes | [2017] 1 SLR 292 | Singapore | Case which did not draw a distinction between the different types of sexual penetration when laying down starting points for s 376A(2) and (3). |
| AQW v Public Prosecutor | High Court | Yes | [2015] 4 SLR 150 | Singapore | Case where the High Court did not draw a distinction between an accused who performed and an accused who received fellatio. |
| Public Prosecutor v BNO | High Court | Yes | [2018] SGHC 243 | Singapore | Case where the High Court applied the Pram Nair framework to acts of fellatio. |
| Public Prosecutor v Koh Rong Guang | High Court | Yes | [2018] SGHC 117 | Singapore | Case where the High Court agreed that an act of forced fellatio is more intrusive and degrading than sexual penetration of a vagina using a finger. |
| Kunasekaran s/o Kalimuthu Somasundara v Public Prosecutor | High Court | Yes | [2018] 4 SLR 580 | Singapore | Case used to determine the appropriate sentence for the outrage of modesty charge in BVZ. |
| Public Prosecutor v BLV | High Court | Yes | [2017] SGHC 154 | Singapore | Case that set a benchmark for offences under s 354(2) of the Penal Code for aggravated outrage of modesty against a minor below the age of 14; not followed in this judgment. |
| GBR v Public Prosecutor and another appeal | High Court | Yes | [2018] 3 SLR 1048 | Singapore | Case where the High Court adapted the Terence Ng framework for the offence under s 354(2) of the Penal Code, which the current judgment agrees with. |
| PP v Law Aik Meng | High Court | Yes | [2007] 2 SLR(R) 814 | Singapore | Case cited for the definition of general deterrence. |
| Edwin s/o Suse Nathen v PP | High Court | Yes | [2013] 4 SLR 1139 | Singapore | Case cited for the principle that the absence of antecedents is a neutral factor in sentencing. |
| PP v BPK | High Court | Yes | [2018] 5 SLR 755 | Singapore | Case cited for the principle that the absence of antecedents is a neutral factor in sentencing. |
| Raveen Balakrishnan v Public Prosecutor | High Court | Yes | [2018] 5 SLR 799 | Singapore | Case relied on in ordering the sentences for both proceeded charges to run consecutively. |
| Public Prosecutor v AUB | High Court | Yes | [2015] SGHC 166 | Singapore | Case relied on by the High Court in Raveen Balakrishnan v Public Prosecutor. |
| PP v Teo Boon Kang | District Court | Yes | [2018] SGDC 263 | Singapore | Case where the offender was sentenced to the mandatory minimum of eight years’ imprisonment even though he had tried twice to digitally penetrate the victim’s anus; distinguished in this judgment. |
13. Applicable Rules
| Rule Name |
|---|
| No applicable rules |
14. Applicable Statutes
| Statute Name | Jurisdiction |
|---|---|
| Penal Code (Cap 224, 2008 Rev Ed) s 376 | Singapore |
| Penal Code (Cap 224, 2008 Rev Ed) s 376(2)(a) | Singapore |
| Penal Code (Cap 224, 2008 Rev Ed) s 376(4)(b) | Singapore |
| Penal Code (Cap 224, 2008 Rev Ed) s 354(1) | Singapore |
| Penal Code (Cap 224, 2008 Rev Ed) s 354(2) | Singapore |
| Penal Code (Cap 224, 2008 Rev Ed) s 293 | Singapore |
| Penal Code (Cap 224, 2008 Rev Ed) s 375 | Singapore |
| Penal Code (Cap 224, 2008 Rev Ed) s 376A(1)(a) | Singapore |
| Penal Code (Cap 224, 2008 Rev Ed) s 328 | Singapore |
| Children and Young Persons Act (Cap 38, 2001 Rev Ed) s 7(a) | Singapore |
| Penal Code (Cap 224, 2008 Rev Ed) s 323 | Singapore |
| Penal Code (Cap 224, 2008 Rev Ed) s 506 | Singapore |
| Penal Code (Cap 224, 2008 Rev Ed) s 426 | Singapore |
| Penal Code (Cap 224, 2008 Rev Ed) s 380 | Singapore |
| Criminal Procedure Code (Cap 68, 2012 Revised Edition) s 325(2) | Singapore |
15. Key Terms and Keywords
15.1 Key Terms
- Sexual assault by penetration
- Pram Nair framework
- Digital-anal penetration
- Fellatio
- Abuse of trust
- Sentencing framework
- Aggravating factors
- Mitigating factors
- Totality principle
- General deterrence
- Specific deterrence
15.2 Keywords
- Sexual assault
- Penetration
- Sentencing
- Criminal law
- Singapore
- Pram Nair
- Penal Code
17. Areas of Law
| Area Name | Relevance Score |
|---|---|
| Sexual Offences | 98 |
| Sentencing | 95 |
| Sexual assault by penetration | 95 |
| Criminal Procedure | 90 |
| Penal Code | 80 |
| Criminal Law | 75 |
16. Subjects
- Criminal Law
- Sentencing
- Sexual Offences