N6029

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO 1203 OF 2013

THE STATE

V

HENRY LEVO

Madang: Cannings J
2015,10th, 22th July

CRIMINAL LAW – sentencing – rape – sentence after trial – no circumstances of aggravation alleged in indictment – Criminal Code, Section 347(1).

The offender was found guilty of one count of rape under Section 347(1) of the Criminal Code. He was a policeman on duty at a police station and committed the offence against a female detainee of the police lock-up.

Held:

(1)	The starting point for sentencing for rape under Section 347(1) of the Criminal Code is 10 years imprisonment.

(2)	Mitigating factors: the offender acted alone, no torture, no confinement; no sexually transmitted disease was passed to the victim, no other indignity, no further trouble, and first-time offender, not a large age gap between the offender and the victim, payment of K1, 000.00 compensation.

(3)	Aggravating factors: penile penetration, no provocation, emotional impact on victim, the inevitable risk of spoilt reputation of the victim, serious abuse of power, serious breach of trust, the offender's actions bring shame and discredit to, and undermine public confidence in, the Royal Papua New Guinea Constabulary.

(4)	A sentence of 10 years was imposed, none of which was suspended.

Cases cited

The following cases are cited in the judgment:

The State v Henry Levo (2015) N5902
The State v James Yali (2006) N2989
The State v Joe Taliva (2008) N3947
The State v July Gabriel CR 769/2011, 26.09.14
The State v Junior Johannes (2014) N5644
The State v Philip Kila (2009) N3930
The State v Stanley Talad (2014) N5737
The State v Togey Bou (1996) N1530

This is a judgment on sentence for rape.

Counsel

M Pil, for the State
J Morog, for the offender

SENTENCE
22nd July, 2015

1. CANNINGS J: This is a decision on sentence for Henry Levo who has been convicted after trial of the rape of a 30-year-old woman. The offender is a member of the Royal Papua New Guinea Constabulary. He held the rank of First Constable and was on duty as shift supervisor at Jomba Police Station when he committed the offence on the night of Tuesday 20 November 2012.

2. The victim was a detainee at the Jomba Police Lock-up. She was in custody on a charge of misappropriation. She spent several months in custody around that time, most of it at Beon Jail, some of it at the Jomba Police Lock-up. There are no separate detention facilities for female detainees at Jomba. Whenever a female is detained there, logistical issues arise. The victim was granted permission by the offender and other Constabulary members on several occasions to stay and sometimes sleep outside the main Lock-up, but within the police station, as she felt uncomfortable about staying inside the main Lock-up with the male detainees.

3. At the trial, the offender agreed that he had sexually penetrated the victim at a dark area near the car park at the back of the Police Station but maintained that the victim consented. That defence was rejected. The victim was regarded as an honest witness and her evidence was accepted.

4. Some friends brought her food between 8.30 and 9.00 pm. She sat outside the cell to have her dinner then was told to return to the cell, which she did. Between 9.30 and 10.00 pm the offender asked her to stand outside so she came outside and talked to him. He gave duties to other officers. He was drinking alcohol. He told her that he was stressed and needed to relax. She told him that she wanted to go back to the cell but he moved closer to her and asked her personal questions such as where she was from. She replied that she was mixed Sepik and Kerema and he said that they were wantoks as he is from Gulf. He told her he was desperate to hold her hand and have sex with her. She repeated that she wanted to go back to the cell. He forced her to the back of the police station to a dark, secluded, grassy area, with some concrete slabs on it. He told her to be quiet. He pulled her to a sink. He forced her to bend down, and then stripped off her clothes. He penetrated her on more than one occasion. She tried to resist and run back to the cell but he was too strong. When he finished he gave her a face towel and told her to wash and clean herself. She went back to the cell but was frightened as she was the only female detainee. She tried to escape the next morning but was caught. She insisted on getting a warrant for her to be detained at Beon Jail. She was transferred there three days later. There was no aggravated physical violence. Further details of the offence are in the judgment on verdict (The State v Henry Levo (2015) N5902).

ANTECEDENTS

5. The offender has no prior convictions.

ALLOCUTUS

6. The offender was given the opportunity to address the court. He said:

I apologise to the court for the crime that I have committed. I have attempted to resolve this matter with the victim. She has contacted me on a number of occasions seeking financial assistance. Last year I gave her K500.00 and this year I have helped her with K200.00 and K150.00. We have discussed the matter and made an agreement regarding compensation. After the court found me guilty I have compensated her with K1, 000.00 cash in the presence of probation officers. She accepted that money and agreed to accept further compensation so that I could remain as a member of the Police Force. Very recently I gave her K700.00. So I have given her a total of K2, 350.00. I will pay her more if given a chance. I ask for the mercy of the court and a lenient sentence. I am a first-time offender and ask for a non-custodial sentence.

PRE-SENTENCE REPORT

7. Henry Levo is aged 47. He is from Lese Aviara village in the Malalaua area of Gulf Province. He is married with three children. The marriage is presently unstable. His wife left him in October last year, taking the children with her, and he does not know their whereabouts. He is the third-born in a family of eight children. His parents are deceased. Most of his siblings live in the village. He has a grade 10 education. He graduated from Bomana Police College in 1990. He holds the rank of First Constable and has been stationed at Jomba Police Station since 2007. He lives in an institutional house in Newtown, Madang. His health is sound. According to his local ward councillor, Bonny Solomon, he is highly regarded in the local community. His present Police Station Commander, Chief Inspector Benae Neneo, regards the commission of the offence as a total disgrace. His elder brother has indicated that the family is aware of the seriousness of the matter but they want him to be put on probation. He is a breadwinner for the family and the family relies on him for his support.

8. The victim feels that her name and reputation have been spoilt by what the offender did to her. She wants a formal apology and compensation.

SUBMISSIONS BY DEFENCE COUNSEL

9. Mr Morog acknowledged the seriousness of the offence but stressed that the offender accepts the verdict of the court and has expressed remorse. He exercised his right to plead not guilty and it should count in his favour that he admitted that he had sexually penetrated the victim; he did not deny all elements of the offence. This is a less serious case of rape than other cases involving policemen who committed rape on duty such as The State v Togey Bou (1996) N1530 (the offender was a member of the sexual offences squad who raped a 13-year-old complainant in his office, the sentence was nine years imprisonment) and The State v Philip Kila (2009) N3930 (the offender raped a young woman, at night, in the course of a police raid of her village, with threats of violence, the sentence was 17 years imprisonment) and warrants a sentence in the range of seven to ten years imprisonment, at least part of which should be suspended so that the offender can reconcile with and fully compensate the victim.

SUBMISSIONS BY THE STATE

10. Mr Pil submitted that a sentence of at least ten years should be imposed as there was a serious breach of trust, and a deterrent sentence is required.

DECISION MAKING PROCESS

11. To determine the appropriate penalty I will adopt the following decision making process:

•	Step 1: what is the maximum penalty?
•	Step 2: what is a proper starting point?
•	Step 3: what sentences have been imposed for equivalent offences?
•	Step 4: what should the head sentence be?
•	Step 5: should the pre-sentence period in custody be deducted?
•	Step 6: should all or part of the sentence be suspended?

STEP 1: WHAT IS THE MAXIMUM PENALTY?

12. Section 347 (rape) of the Criminal Code states:

(1)	A person who sexually penetrates a person without [her or] his consent is guilty of a crime of rape.

Penalty: Subject to Subsection (2), imprisonment for 15 years.

(2)	Where an offence under Subsection (1) is committed in circumstances of aggravation, the accused is liable, subject to Section 19, to imprisonment for life.

13. In this case no circumstances of aggravation were included in the indictment. Therefore the maximum penalty is 15 years imprisonment. The court has a considerable discretion whether to impose the maximum penalty by virtue of Section 19 of the Criminal Code.

STEP 2: WHAT IS A PROPER STARTING POINT?

14. In The State v James Yali (2006) N2989 I expressed the view that the starting points when sentencing for rape should be:

•	if circumstances of aggravation are not charged and proven (Section 347(1)): 10 years; 
•	if circumstances of aggravation are charged and proven (Section 347(2)): 15 years.

15. I follow that approach in this case and use 10 years imprisonment as a starting point.

STEP 3: WHAT SENTENCES HAVE BEEN IMPOSED FOR EQUIVALENT OFFENCES?

16. I will consider sentences I have imposed in Madang for rape under Section 347(1) committed without circumstances of aggravation, as shown in the following table.

RAPE SENTENCES UNDER SECTION 347(1)

No	Case	Details	Sentence	
1	The State v James Yali (2006) N2989	Trial – mature aged offender, provincial governor raped 17-year-old sister of his de facto wife, in his office.	12 years	
2	The State v Joe Taliva (2008) N3947	Guilty plea – offender, aged 20, raped 18-year-old friend, who was pregnant – planned offence – victim lured to secluded location by trickery.	10 years	
3	The State v Junior Johannes (2014) N5644	Trial – offender and victim of similar age – victim, a neighbour, dragged off a public road and into bush – no aggravated violence – no remorse.	12 years	
4	The State v Stanley Talad (2014) N5737	Trial – 25-year-old male offender; the victim, who has a physical disability, was 17 – the offender was living with the victim and her family – remorse.	11 years	
5	The State v July Gabriel CR 769/2011, 26.09.14	Guilty plea – offender, aged 21, raped 19-year-old woman, who he met on a bush track – offender approached the victim from behind, grabbed her by the neck, forcefully removed her clothes – remorse.	8 years	

STEP 4: WHAT IS THE HEAD SENTENCE?

17. The head sentence will reflect the following mitigating and aggravating factors.

18. Mitigating factors:

•	the offender acted alone,
•	no torture,
•	no confinement,
•	no sexually transmitted disease was passed to the victim,
•	no other indignity,
•	no further trouble,
•	first-time offender,
•	not a large age gap between the offender and the victim,
•	payment of K1, 000.00. compensation.

19. As to compensation, there is evidence of only K1, 000.00, which was paid after the verdict. There is no evidence of the other payments that the offender spoke about in the allocutus. He did not plead guilty, so they are not matters on which he can be given the benefit of the doubt. Mr Morog's point that the offender should be given credit for admitting that he penetrated the victim is interesting, but I am not convinced that it is a mitigating factor. It was simply the way that the offender chose to run his case, as his defence was consent. I do not think the offender expressed much remorse, so that cannot be regarded as a mitigating factor.

20. Aggravating factors:

•	penile penetration,
•	no provocation,
•	emotional impact on victim,
•	the inevitable risk of spoilt reputation of the victim,
•	serious abuse of power,
•	serious breach of trust; and
•	the offender's actions bring shame and discredit to, and undermine public confidence in, the Royal Papua New Guinea Constabulary.

21. There appear at first glance to be more mitigating factors than aggravating factors. However, the aggravating factors are very strong. It is indeed as the Chief Inspector stated a total disgrace for a member of the Police Force to commit an offence such as this while on duty at a police station against a person who was in his custody. In some ways Mr Morog is right in submitting that this is not as serious a case as Bou and Kila. But each case must be assessed on its merits. As shocking as were the facts in Bou, it must be realised that that case is 19 years old and sentences for rape have increased; it is hard to believe that if the facts of that case were repeated today a sentence of only nine years would result. In Kila the offence was committed in the victim's home and the offender was charged with circumstances of aggravation, so the maximum sentence was life imprisonment.

22. As the table of previous sentences shows, in Section 347(1) rape cases it is very difficult for an offender to avoid a sentence of less than ten years if the matter is taken to trial. So this sentence must be at least ten years. Should it be any more? I have decided no, because the offender has made a serious attempt to reconcile with and compensate the victim and she has seemed willing to negotiate those issues with him. The sentence is 10 years imprisonment.

STEP 5: SHOULD THE PRE-SENTENCE PERIOD IN CUSTODY BE DEDUCTED FROM THE TERM OF IMPRISONMENT?

23. There is nothing to deduct.

STEP 6: SHOULD ALL OR PART OF THE HEAD SENTENCE BE SUSPENDED?

24. In a sexual offence case the presence or absence of reconciliation between the victim and the offender is, in my view, the major consideration when deciding whether to suspend any part of the sentence. There has been movement toward reconciliation and an agreement for compensation and the offender has paid K1, 000.00. Those matters have been taken into account as mitigating factors and have resulted in a sentence that might appear at first glance lenient. I consider that the offender has had enough time to resolve these issues fully. He has committed an extremely serious crime, the victims of which are not only the woman he raped but all the good members of the Police Force who have never committed such an offence or even contemplated doing what the offender did. He has disgraced his uniform. He has undermined public confidence in the Constabulary.

25. It would be a bold decision for the court to suspend any part of this sentence. I would have to be convinced that that is what the direct victim of the crime wanted the court to do. I am not convinced. None of this sentence is suspended.

SENTENCE

26. Henry Levo, having been convicted of the crime of rape under Section 347(1) of the Criminal Code, is sentenced as follows:

Length of sentence imposed	10 years	
Pre-sentence period to be deducted	Nil	
Resultant length of sentence to be served	10 years	
Amount of sentence suspended	Nil	
Time to be served in custody	10 years	
Place of custody	Beon Correctional Institution	

Sentenced accordingly.

Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the Offender