The court affirmed discretion in sentencing, emphasizing that absence of violence and consideration of youthful age in rape cases warrants careful assessment of penalties imposed.

[1] This is an appeal by the public prosecutor against the sentence imposed on the respondent.

Brief Facts

[2] The respondent was charged with three counts of raping his own sister in law who was aged 15 years and eight months old at the material time. He pleaded guilty to the charge and the learned sessions court judge imposed the following sentence:

(a) The first charge --11 years imprisonment;

(b) The second charge --12 years imprisonment; and

(c) The third charge --13 years imprisonment and ten lashes of the whip.

[3] He ordered all the imprisonment terms to run concurrently. This means that the respondent would serve 13 years imprisonment only. The statement of facts which was admitted by the respondent revealed the following. The respondent is 23 years old whereas the victim was not yet 16 years old. She is the sister of his wife. It appears that the respondent, his wife, the victim and other members of the family lived in the same house. On three occasions this year between April and May, he is alleged to have 'persuaded' the victim into having sexual intercourse with him by cajoling (termakan pujukan) and threatening her. Although the element of force or coercion was not clearly stated in the statement of brief facts, the act of the respondent constituted rape as the victim was under 16 years of age (see s 375(g) of the Penal Code ). It was also the prosecution's case in the statement of brief facts that a Muslim man cannot marry his sister in law as such a marriage is proscribed by Islamic law for being within the prohibited degree of marriage. Under s 376A of the offence of incest is defined as:

A person is said to commit incest if he or she has sexual intercourse with another person whose relationship to him or her is such that he or she is not permitted, under the law, religion, custom or usage applicable to him or her, to marry that other person.

[4] The respondent admitted the fact that he had sexual intercourse with his own sister in law on the said three occasions. Therefore, the conviction of the respondent under s 376(3) is proper. Section 376(2) and (3) provide for heavier penalties for what is called 'aggravated rape' in some jurisdictions. For the offence of incest combined with rape, s 376(3) provides as follows:

Whoever commits rape on a woman whose relationship to him is such that he is not permitted under the law, religion, custom or usage, to marry her, shall be punished with imprisonment for a term of not less than eight years and not more than thirty years, and shall also be punished with whipping of not less than ten strokes.

Whether Punishment Inadequate?

Whipping

[5] The first point of the learned DPP in her written submission and her oral argument was that s 376(3) provided for a minimum of ten strokes of whipping. She submitted that the learned sessions court judge erred in imposing only ten strokes of whipping on the third charge and in not imposing any whipping on the first two charges. After I pointed out to her the provisions of s 288 of the Criminal Procedure Code , she conceded that the sentencing court cannot exceed the 24 strokes limit. Section 288 reads as follows:

288 Mode of executing such sentence

(1) When the accused is sentenced to whipping the number of strokes shall be specified in the sentence. In no case shall the whipping exceed twenty-four strokes in the case of an adult or ten strokes in the case of a youthful offender, anything in any written law to the contrary notwithstanding.

(2) Whipping shall be inflicted on such part of the person as the Minister charged with responsibility for public order from time to time generally directs.

(3) The rattan used for whipping shall be not more