CRIMINAL CASE NO. 305 OF 2010
COURT: D1, when you were about 19 years old, you indecently assaulted your 16-year old younger sister and had sex with her on two other occasions whilst not using any contraceptives.
At around the same time, you indecently assaulted one of your nieces when she was about 5 or 6 years old. You did the same on that niece when she was 10 and you were twenty‑two. About a year later, you indecently assaulted her twin sister when she was eleven.
D2, when you were 18, you indecently assaulted your niece when she was seven. When you were 20, you did the same on her twin sister when she was about ten, and on four other occasions when you were aged from 16 to 21, you indecently assaulted their younger sister: (1) when she was aged three to four; (2) when she was aged seven to eight.
The incidents of the indecent assault involved kissing of the genital areas of the victims or thrusting penis against buttocks and/or thighs near the genital area which on many occasions ended up with ejaculations. These latter conducts were acts short of sexual intercourse.
Twenty-odd years have passed since the commission of these offences. D1 and D2 are now aged 46 and 43 respectively. These offences came to light when the youngest niece disclosed the sexual abuse whilst preparing for her wedding. During these years, apart from D1, who had some minor traffic contraventions, both have not previously been convicted of any criminal conduct. They have both got married and have families of their own and have maintained gainful and stable employment.
At the time when these offences were committed, the maximum sentences for incest and indecent assault were 7 years and 5 years’ imprisonment respectively. With the passage of time, that maximum became subject to growing public criticism on the basis that they were too low and legislations were passed raising the maximum to a double. Since these offences were all committed well prior to the effective date, this court is restricted to a maximum at the time of the commission of the offences.
In terms of general mitigation, I have read the reports. I have also taken into account mitigation forwarded and letters written by the defendants and their family members. There is no suggestion of any psychiatric impairment. The clinical psychologist has placed both of them at the low re‑offending risk category. Both defendants ask for forgiveness from the victims.
Coming to sentencing considerations, I must say at the outset that this is one of the most difficult cases that I have come across. It has both aggravating and mitigating features. It involves multiple victims who are close relatives to the defendants. Both defendants have abused and exploited their positions as uncles to the young nieces who were at their most vulnerable ages.
D1 also abused his position as an elder brother. Whilst incest between brothers and sisters is not viewed as seriously as between fathers and daughters, these are nonetheless still serious offences. Although D2 was still in adolescence himself when committing some of the offences against his nieces, the age difference is something which cannot be overlooked.
Obviously, the younger the child, the greater the age gap between the offender and the victim, the higher the sentence it attracts. It is the duty of the court to protect young children and to assure their parents of their safety. A sufficiently heavy deterrent sentence is required for sexual offences of this nature against the extremely young. It must be made quite clear that anyone who is convicted of sexual abuse or exploitation of children of very tender years will face a substantial custodial sentence, be they young or old, male or female, of clear record or otherwise.
The fact that these sexual abuses were repeated over the years, and not just simple one-off isolated incidents, with multiple victims, are plainly aggravating features which takes these offences out of the parameters of being merely out of curiosity and experimental on the part of the defendants.
Counsel have urged me to take into account that when the defendants committed these offences they had not even met their wives. Their wives and their children, who are still at quite young ages now, have also become victims of these unfortunate incidents.
However, it is not an uncommon feature of prosecutions for sexual offences that many years have passed between the offences and the institution of proceedings, and offences involving sexual abuse within the family are by their nature very likely to remain undetected for substantial periods; partly because of fear, family solidarity, and partly because of embarrassment. Yet the psychological effect of those abuses due to the passage of time would be more easily ascertainable.
I have read the victim impact reports prepared by the social workers of the charitable organisation Rainlily. I have no doubt that the incident had a long-lasting impact on the victims psychologically. The fact that they disclosed these matters so many years later spoke for itself.
A common feature shown in these reports are feelings of humiliation, degradation, shame, embarrassment, inability to trust and form personal or intimate relationship in adulthood. It must have taken all of them the utmost courage, braveness and struggle, after all those years to come forward to report the defendants, both close relatives to them, to the authorities.
On the other hand, an exceptionally long period of time has elapsed also means that the prosecution has been made undoubtedly more difficult to prove their case against the defendants. Memories might have extinguished; records may have been lost; other people’s memories may have faded; other people who could have helped may even have died.
Yet, the defendants had chosen to face the music as soon as they were taxed with the allegations. They pleaded guilty at the first available opportunity. Credit must be given for their pleas of guilty. To do so in this type of cases carries more weight, in so far as it relieves the witnesses from the distress of re-living traumatic experiences of an extremely personal nature.
I have given very careful consideration to this case and in particular to the complex factors which I have outlined. I have no doubt whatsoever that the public interest requires the offences to which the defendants have pleaded guilty be marked with sentences of imprisonment to reflect the public abhorrence of those appalling and debauched conduct which will fill every right-thinking member of society with revulsion.
I will adopt the following starting points for D1:
Charge 1: 18 months’ imprisonment
Charges 2 and 3: 30 months’ imprisonment each
Charges 4, 9 & 11: 3 years’ imprisonment each
For D2, for each of Charges 5, 6, 7, 8, 10 and 12, I adopt a starting point of 3 years’ imprisonment.
I am minded to give the defendants more than the usual one‑third discount but I shall make it plain that this is only done on a case-specific basis and that the defendants earn this extra discount not because of the delay, but rather, because each defendant has since the offences developed into a family man with supportive and understanding family members and has furthermore maintained stable employment.
The individual sentences are as follows for D1:
Charge 1: 9 months’ imprisonment
Charges 2 and 3: 15 months’ imprisonment each
For the rest of the charges: 18 months’ imprisonment each
For D2, each offence is 18 months’ imprisonment.
Taking into account totality, I adjudge that each of D1 and D2 should go to prison for 3½ years and that will be achieved as follows:
For D1, I order that six months out of the sentences of each of Charges 2 and 3, and seven months out of the sentence of each of Charges 4, 9 and 11 to run consecutively to the sentence of the 9 months’ imprisonment in respect of the 1st charge.
For D2, I order that four months out of Charge 6 and five months out of the rest of the charges to run consecutively to the 18 months in respect of Charge 5.
Each of you goes to prison for 3½ years and that is the sentence I pass.