THE QUEEN v. CHEUNG MING LIM

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J U D G M E N T

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Macdougall, J. :

1. The applicant, after having pleaded guilty at committal proceedings to one count of attempted rape, repeated hat plea in the High Court, and was sentenced by Mr Justice Hooper to 6 year imprisonment.

2. The circumstances of the offence were that the applicant's mother, who is the principal tenant to premises consisting of 4 rooms, had rented one of those rooms to the victim, a young woman aged 20. The applicant who lived in one of the other rooms, gained entry to the victim room at about 3.30 a.m. by us using a spare key which he obtained from his father desk to previous on the day. The victim awoke to find  the applicant on top of fondling her breasts. He then pulled down her pants and forced his legs between hers. She resisted, and a struggle ensued during which her screams were overheard by the applicant's father in an adjoining room.

3. The applicant struck the victim four or five blows on the face and the head with his fists. He also grabbed hold of her hair, and banged her head on the floor and covered her mouth with his land whilst she was struggling Although the victim felt the applicant's penis rubbing against her genital area, the applicant failed to achieve penetration. However, he ejaculated during the course of his attempt to do so.

4. On examination in hospital, it was discovered that the right rear of the victim' S head was swollen, that she has sudstained bruising to both ears, the iliac Crest and the right cheek, abrasions to her right elbow and a perforated left tympanic membrane and trimus. An X-ray revealed that her temporal bone had been fractured. She was hospitalized for four days .

5. In parsing sentence,Judge observed that although the applicant, who is aged 22 and hitherto had a clear record, had not succeeded in raping the victim, he has gone a far as he had been able to do so in his attempt to achieve that objective. The judge expressed the view that for attempted rape, such as that committed by the applicant in, the middle of the night and involving the degree of violence used by him, the starting point for purposes of sentence was 9 years. Accepting that by pleading guilty the applicant had relieved the victim of the ordeal of coming to Court to testify, and that he had shown some remorse by escorting her to hospital immediately after the commission of the offence the judge reduced the notional sentence of 9 years to one of 6 years.

6. The applicant now appeals against thaw sentence on the ground that it is manifestly excessive, Mr. Corrigan, who appears on behalf of he applicant, has referred us to a number of local cases the facts of which differ widely. We do not find them to be  of any assistance.

7. Indeed, the our of appeal in England observed in the ease of Reg v. Morris^(l), of which we do not have a full report, that sentencing, does not proceed by way of binding precedent except in relation to technical matters, and that if a case is cited which is not a guideline case it should not be followed blindly. Their lordship stated that the court did not encourage the practice of reading facts of one case in which there was a successful appeal and suggesting that that case acted as precedent compelling another court to take A similar course in the case to which it bore apparent similarities.

8. While Mr. Corrigan has not sought to do that which the Court in Morris expressed its intention not to encourage, it seems plain to us that in determining whether a particular sentence is manifestly excessive, regard must be had to the circumstances of the case under consideration and that sentences imposed in other cases are of very limited assistance.

9. However, in the Queun v. Billam⁽²⁾ the Court of appeal in England offered guidelines for sentencing in rape and attempted rape case. We find these to be of assistance. In respect of rape committed by an adult without any aggravating or mitigating features the Court considered that a figure of 5 years should be taken as a starting point in a contested case. Where a man gains entry into a place where the victim is living the starting point should be 8 years. Lord Lane listed 8 factors that would aggravate the offence. Two of those factor, namely violence used over and above that necessary to commit the offence, and an element of planning, are present in the instant case. The other factors referred to by Lord Lane are assent.

10. His Lordship went on to observe that previous good character is only of minor relevance, and that while attempted rape may be made by aggravating features into an offence even more serious than some examples of the full offence, the starting point for attempted rape should normally be less than that for the completed offence, especially if it is desisted in at a comparatively early stage. Because a plea of guilty relieves the victim of the additional ordeal of having to relive her experience by giving evidence, it should normally result in some reduction from what would otherwise be the appropriate sentence, and perhaps more so than in other cases. However, the amount of the reduction will depend on all the circumstances of the case including the likelihood of a finding of not guilty had the matter been contested.

11. Bearing in mind these considerations, the question we must ask ourselves is not whether any individual member of this Court would have imposed a lighter sentence than one of 6 years on applicant, but whether the sentence of 6 years is manifestly excessive or wrong in principle, We have come to the conclusion that the judge adopted too high a starting point from which to make allowance for mitigating factors. In all the circumstances of the case we are of the view that the appropriate sentence is one of 4 years imprisonment. Accordingly the application is granted, the appeal allowed and the sentence of 6 years varied to one of 4 years.