CRIMINAL CASE NO. 380 OF 2009
COURT: This defendant was found guilty after trial by a jury of one count of rape.
The victim was a 17-year-old girl who was not very sophisticated and had become acquainted with the defendant over a period of about six months, having met him on an online games site. She and the defendant exchanged telephone numbers and some time after that, they met in person. There were two occasions of their meeting prior to the incident, but on neither occasion was there any sexual intimacy and their relationship stayed at the level of non-intimate friendship.
On the day of the incident, the complainant and the defendant had arranged to meet and see a film. Instead of doing that, they wandered around the shopping mall in the company of another young girl who was the defendant’s actual girlfriend at the time. The girlfriend went home and the defendant and the complainant returned to the defendant’s estate because he said he wished to collect something.
Once at his building, the defendant used mild force to get the victim to enter his home. There appears to have been no one else present at home at that time. The defendant told the complainant that he wanted her to be his girlfriend and that he wished to have sexual intercourse with her, but the complainant refused.
Soon after that, the defendant, who initially had occupied himself playing videogames, pushed the complainant to a mattress on the living room floor and proceeded to have intercourse with her despite her vocal refusal and her physical resistance by which she made it quite clear that she did not want to have intercourse. The complainant tried to push the defendant away from her but was unable to do so. There was a significant height and weight disparity in the defendant’s favour. When the complainant struggled, the defendant held her hands with one of his, removed her shorts and knickers and, without using a condom, proceeded to have intercourse.
The force used by the defendant during the course of the incident effectively, was little more than was required to accomplish the act of intercourse, but the complainant described it as a frightening and a painful experience and no doubt, for her, it was. The complainant did not suffer physical injuries in the course of the rape.
Subsequently, after the defendant had been arrested and charged for this offence, the complainant was diagnosed as suffering from gonorrhoea for which she received treatment. There was no suggestion that the defendant was the source of that infection. However, it is likely that her condition at the time caused the intercourse to be more painful than it might have been otherwise and the defendant can count himself fortunate that he himself did not contract gonorrhoea as a result of the sexual assault. Eventually, the complainant dressed and left the premises and returned home.
She did not make a report to the police as she did not want her parents to learn of her sexual activity which predated the rape. She did make an early complaint, however, to the elder brother of her former boyfriend with whom she had a friendly relationship and with whom she was in the habit of discussing her romantic affairs. He suggested that she report to the police but the complainant was reluctant to do so.
Eventually, about 18 days after the incident, the complainant was obliged to go to hospital because of a Bartholin’s abscess which developed in the genital area and for which she eventually required surgery. It was not an ailment that was sexually transmitted, nor was it linked to the gonorrhoea. The complainant spent several days in hospital and, during that period, tests were done which eventually showed that she was suffering from gonorrhoea.
While in hospital, the complainant gave details to the nursing staff of how she had been raped and, eventually, after encouragement and persuasion from the hospital staff and the Medical Social Work Officer, she agreed, although reluctantly, to make a report to the police and did so on 4 August 2009.
Subsequently, on the same date, she took the police to the defendant’s home where he was arrested. The defendant admitted rape on arrest, effectively, and subsequently gave a fuller account in a video interview, describing how he had come to know the complainant and what happened on the day in question.
The defendant, at trial, challenged the admission in the record of interview and the defence was conducted on the basis that the complainant had instigated sex, had willingly had sexual intercourse and then tried to frame the defendant for rape because she feared her parents’ reaction to her sexual activity. The jury, by its unanimous verdict, rejected that defence.
I sought a Probation Officer’s report before sentencing. That gave details of the defendant’s family background, his education, his employment background and details of his criminal record. The defendant was born on 29 September 1987. He was single and lived with his parents and siblings. He was educated to Form 3 level in Hong Kong and thereafter took up employment at age 16 as a kitchen worker and newspaper delivery worker. For about a month prior to his arrest, he had been employed as a cleaning worker at a home for the aged.
The defendant’s father was a bus driver who worked the night shift. He had little daily contact and almost no emotional rapport with his family. His mother was a housewife who had suffered from depression since the death of her eldest child at the age of 13. She had developed a clothes-hoarding habit which made living conditions at the self-owned family flat extremely congested and possibly insanitary. She attended a Buddhist church regularly and encouraged her family members to attend with her. Despite the mother’s personal shortcomings and difficulties, she was supportive of her son and the family relationship overall was harmonious.
The defendant, who was the third of four children, had had academic and disciplinary problems while at high school. He lacked effective parental supervision and, in 2002, was placed on probation for 12 months for an offence of robbery. Thereafter, he was dealt with by the courts for two breaches of the Probation Order.
To counter the lack of parental supervision, he was placed in a Youth Outreach Hostel and, later, in a Rehabilitation Centre, in July 2004. He ran away from the centre and eventually was admitted to Training Centre in December 2004. On release from Training Centre, he was on open supervision for three years, but I note that he was not recalled by the Training Centre supervisors during that time.
Since leaving school, the defendant had developed a pattern of working for short periods at different jobs. There was no verification of his working history except that the supervisor of the Home for the Aged said that she was satisfied with the defendant’s standard of work in the month that he had been with them. She considered that he showed genuine concern to the inmates who missed him as a patient chess player after he left his post.
The defendant complained to the Reporting Officer about his previous probation supervision and clearly considered that the supervisor of his probation order was to blame for his breaches of probation, claiming that he was fault-finding. However, an overall view of the report indicates that the accused is the author of his own misfortunes, in particular because he failed to take advantage of the rehabilitation opportunities that were provided to him after the robbery offence.
In the months before his trial, the defendant formed a relationship with another girl whom he had met on-line, although they had no intimate relationship. That girl did, to date, however, accompany the accused’s mother when she visited the accused in prison and offered support while he was remanded for sentence.
The defendant had told the Reporting Officer that he felt remorse for having disgraced the victim in front of her family and he expressed his regret for the waste of court time in dealing with the offence. That claim of remorse would have been slightly more convincing if the defendant had spared the complainant what was, for her, a very difficult two days in court.
The defendant’s mother and elder sister sought leniency from the court on behalf of the defendant. Letters were put before the court from the defendant, his mother, his father, his elder brother, his younger sister, his two friends and the supervisor from the Aged Home. Letters from the defendant and from the defendant and his family were produced for onward transmission to the victim, expressing apologies for the offence.
Before sentencing, I obtained a psychologist’s report in respect of the victim. The Reporting Psychologist appeared to have thought, mistakenly, that the victim’s sexually transmitted disease was a consequence of the rape. I have stated earlier that the medical evidence at trial made it quite clear that the sexually transmitted disease predated the rape and that although the defendant had not used a condom, it was not suggested that he was the source of the infection.
The report concluded, effectively, that the sexual attack and subsequent reprimands from the girl’s mother and the fact that her friends were critical of her meant that she had suffered some physical, emotional and psychological harm, but there was no indication that the degree of harm had affected the victim’s functioning on a day-to-day basis, nor had it indicated that it affected her relationship seriously with her mother and friends. Overall, the report did not add anything to what is already known about the victim’s circumstances.
However, the offence was a serious one. The rape was forced, unprotected sex on a young, unsophisticated victim with the risks of pregnancy and disease. The victim had regarded the defendant as a friend, not as a boyfriend or sexual partner, and the defendant betrayed that friendship. He inflicted on her a frightening and painful experience and she was obliged to give evidence which in itself was an ordeal, in particular because of the allegations that it was she who had initiated the intercourse and that she had framed the defendant for the offence.
I do note that this was a single incident, that the violence was little more than was required to effect the intercourse, that the victim was not underage and that it was not her first sexual experience.
Taking all those matters into account, I consider that the appropriate sentence in this case is 5 years’ imprisonment and that is the sentence I impose on the defendant.