Ex-valet gets 13 years, three strokes for rape after prosecution appeal

KUALA LUMPUR: The High Court has upheld a former valet's rape conviction and increased his sentence to 13 years' imprisonment and three strokes of the cane after allowing the prosecution's cross-appeal.

Justice Nurulhuda Nuraini Nor upheld the sessions court's finding that Khanesen, 34, was guilty of rape. On July 29, the court also allowed the prosecution's cross-appeal, raising the sentence from 11 years' jail and two strokes to 13 years and three strokes.

The judge ordered him to begin serving his sentence after rejecting his application for a stay pending a final appeal to the Court of Appeal, noting that both the sessions court and the High Court had found him guilty.

In the 15-page judgment released two days ago, Nurulhuda said the trial judge's findings were fully supported by CCTV footage and scientific evidence.

She found that CCTV recordings showed the victim and her friend leaving the entertainment venue while still able to walk normally despite having consumed alcohol. The footage later showed the victim becoming unconscious and being carried into Khanesen's car before he drove to the basement parking area at TREC Kuala Lumpur, where the rape took place at about 5am on May 13, 2023.

The judge said there was no reasonable explanation as to why the accused drove the victim to the basement before returning to the original location shortly afterwards. The victim's account was consistent with the footage, which showed the car remaining in the basement for several minutes before leaving.

A doctor found fresh injuries to the victim's perineum and recent tears to her hymen, consistent with sexual penetration within 72 hours of the medical examination.

The court also placed significant weight on DNA evidence after Khanesen's DNA was found inside the victim's mouth, corroborating her testimony that he had forced her to perform oral sex. Nurulhuda rejected his explanation that the DNA had been transferred when he slapped the victim to wake her up or carried her into the vehicle.

"The DNA was found inside the victim's mouth, not on the outside, making the defence's version untenable," she said.

She held that the victim's failure to physically resist did not amount to consent, adopting the established principle that submission out of fear or helplessness cannot be regarded as voluntary consent.

In increasing the sentence, Nurulhuda said Khanesen had abused his position as a valet at an entertainment outlet frequented by young patrons. He had also changed out of his work uniform into a black T-shirt to avoid being easily recognised and deliberately moved the victim to a CCTV blind spot — aggravating factors that justified a more deterrent sentence.