SC2551

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCREV 8 Of 2021

GARRY LOUHA
 Applicant

AND 

THE STATE
Respondent

Waigani: Anis J, Dingake J and Berrigan J
2023: 30th November
2024: 5th April

REVIEW OF SENTENCE – Section 347(1), Criminal Code – Rape by police officer of person held in custody - Principles applied – No identifiable error –Maximum Sentence of 15 years not manifestly excessive – Review dismissed. 

The applicant, a police officer, was convicted following trial, of the rape of a woman in police custody, contrary to s 347(1) of the Criminal Code.  He was sentenced to 15 years of imprisonment, the maximum penalty available under s347(1).  The applicant sought review of his sentence.

Held:
(1)	If the State wishes to rely on a circumstance of aggravation by reason of which an accused is liable to a higher maximum penalty it must be charged in the indictment.  
(2)	A judge is obliged to take into account all established facts in determining sentence.  A circumstance of aggravation not charged in the indictment must therefore be taken into account when determining sentence within the permissible range.
(3)	The maximum penalty is reserved for the most serious instances of the offence, that is where the circumstances of the offence are so grave as to warrant the imposition of the maximum penalty.
(4)	There was no identifiable error in the exercise of sentencing discretion. In view of the aggravating circumstances in which the offence was conducted, which constituted a grave abuse of trust and authority, the applicant failed to demonstrate that it was not a case warranting the maximum penalty within the permissible range. The sentence was not manifestly excessive. 

Review of sentence dismissed.

Cases Cited

William Norris v The State [1979] PNGLR 605
Goli Golu v The State [1979] PNGLR 653
Veen v The Queen (No 2) (1988) 164 CLR 457
The Queen v Kilic (2016) 259 CLR 256
Mari v State (2007) SC1147
The State v Michael Butemo Jiregari [1984] PNGLR 62
The State v Dibol Petrus Kopal (2004) N2778
The State v Binga Thomas (2005) N2828
The State v James Yali (2006) N2989
The State v Jeffery Wangi (2006) N3016  
The State v Marcus Yame (2010) N4131
The State v Mark Samuel Haupas (2007) N3186
The State v Miseal Butemo Jiregari [1984] PNGLR 62
John Aubuka v The State [1987] PNGLR 267
The State v Togey Bou (1996) N1530
The State v Philip Kila (2009) N3930
The State v Henry Levo (2015) N6029
Ngasele v The State (2003) SC731

References Cited

Sections 347, 349, 528, 583 of the Criminal Code
Section 5 of the Criminal Law (Compensation) Act 1991

Counsel

Ms J Bibilo, for the Applicant 
Ms M Tamate, for the Respondent State

DECISION ON REVIEW

5th April 2024

1.	BY THE COURT: The applicant was convicted following trial of rape contrary to s 347(1) of the Criminal Code.  He was sentenced to 15 years of imprisonment, the maximum penalty available under s 347(1).   

2.	The applicant was granted leave to review conviction and sentence. He abandoned review of his conviction but seeks review of his sentence.

3.	The applicant was a police officer.  On the night of the offence he was on duty at Kundiawa Police Station.  The victim was an unsophisticated woman from a local village who had been held in custody for a week without charge on suspicion of arson.  Between 12 am and 1 am the applicant visited the police cells and saw that the victim was the only female detainee in custody.  He subsequently returned to the police cells. He told the complainant that her name was not registered, that he would “rape her and let her go”. She was scared.  He told her to keep her mouth shut. He ordered the victim to undress and forced her to touch his testicles. He put on a condom and told her to turn around before raping her vaginally. Afterwards he took her back to the police cell and locked her up. The victim reported the matter the following morning. 

Grounds 
4.	The applicant seeks review of his sentence on the grounds that: a) the learned trial judge erred in imposing a sentence of 15 years of imprisonment pursuant to s 347(1), Criminal Code when the case was not of the worst kind; b) imposing a sentence that is manifestly excessive; and c) ordering the applicant to pay the victim’s claim for damages in separate human rights proceedings. 

General Principles 

5.	An appellate court will not readily disturb the discretionary power of a sentencing judge. For it to do so it must be satisfied that the judge made an error that has the effect of vitiating the sentence. Such an error may be identifiable: a mistake as to the facts; an error of law; the taking into account of matters which should not be taken into account; or the failure to give appropriate weight to matters to be taken into account. Even where no identifiable error can be shown, a sentence may be set aside where it is obviously, but not merely arguably, out of all reasonable proportion to the circumstances of the case: William Norris v The State [1979] PNGLR 605 at 612 to 613.

Consideration 

6.	It is well established that the maximum penalty is reserved for the most serious instances of the offence bearing in mind the nature of the crime and the circumstances of the criminal.  That is not to say that the case must be “the very worst in the book”: Goli Golu v The State [1979] PNGLR 653.  As the High Court of Australia said in similar terms, it is irrelevant whether it is possible to envisage a worse instance of the offence: Veen v The Queen (No 2) (1988) 164 CLR 457; The Queen v Kilic (2016) 259 CLR 256.    

7.	In short, the maximum penalty is reserved for the most serious instances of the offence, that is where the circumstances of the offence are so grave as to warrant the imposition of the maximum penalty, bearing in mind the nature of the crime and the circumstances of the criminal.  

8.	It is also well established that if the State wishes to rely on a circumstance of aggravation by reason of which an accused is liable to a higher maximum penalty it must be charged in the indictment: ss 1, 528(2) to (6) (form of indictment) and 538 (offences involving circumstances of aggravation)  of the Criminal Code; Mari v State (2007) SC1147, The State v Michael Butemo Jiregari [1984] PNGLR 62; The State v Dibol Petrus Kopal (2004) N2778; The State v Binga Thomas (2005) N2828; The State v James Yali (2006) N2989 J); and The State v Jeffery Wangi (2006) N3016.  

9.	If a circumstance of aggravation is not charged in the indictment, it may nevertheless be taken into account as an aggravating factor when deciding on a sentence within the permissible range:  The State v Kopal, supra, The State v Marcus Yame (2010) N4131 at [7]; The State v Mark Samuel Haupas (2007) N3186 at [15].  Indeed, a judge must take into account all established facts in determining sentence: The State v Miseal Butemo Jiregari [1984] PNGLR 62.

10.	Section 347(1) of the Criminal Code creates the offence of rape, the maximum penalty for which is 15 years of imprisonment. Where the offence is committed in circumstances of aggravation the maximum penalty is life imprisonment pursuant to s 347(2).

11.	Section 349A(e), Criminal Code provides that for the purpose of s 347 (among other offences within Division 7), circumstances of aggravation include that the accused person, in committing the offence, abused a position of trust, authority or dependency.

12.	As the trial judge observed, the State did not charge the applicant with committing the offence pursuant to s 347(2), Criminal Code and the maximum penalty applying was therefore 15 years.  

13.	As the trial judge further correctly observed, the fact that the applicant committed the offence in circumstances of aggravation, albeit not charged, did not mean that the maximum under s 347(1), Criminal Code would automatically apply. As the maximum penalty available for the offence, that was reserved for the worst instances of the offence under s 347(1). 

14.	The trial judge carefully considered the mitigating factors of which there was only one of any weight and that was that it was the applicant’s first offence. The trial judge took into account that some compensation had been paid but those matters must be considered in all of the circumstances. The trial judge was at liberty on the material before him to find that there was no true remorse. 

15.	Rape is a serious and prevalent offence warranting severe penalty. The offending in this case was particularly grave. It was committed by a police officer, whilst on duty, against a vulnerable person, held in police custody, and involved some planning.  

16.	We agree with the trial judge that the offending constituted a gross abuse of authority and trust.  It was committed by a person whose very duty it was to protect and serve the law. Such offences cannot be tolerated.  They undermine public trust in the Constabulary and denigrate the good service of all those dedicated officers who serve with distinction.  The detrimental effect of such offences on the public confidence, particularly that of women and girls, moreover, in the ability of the police force to investigate and prosecute sexual violence cannot be overstated. 

17.	It is also clear that the sentence of ten years which was approved by the Supreme Court in John Aubuka v The State [1987] PNGLR 267 for a similar offence by a police officer must be considered outdated given current community expectations generally with respect to sexual violence and the prevalence of such offences by police officers in particular.

18.	At least three other cases of rape by police officers whilst on duty were put before the trial judge: 

(a)	The State v Togey Bou (1996) N1530, in which the offender, a member of the sexual offences squad, raped a 13-year-old complainant in his office. He was sentenced to eight years imprisonment;
(b)	The State v Philip Kila (2009) N3930, in which the offender raped a young woman, at night, in the course of a police raid of her village, with threats of violence. He was charged pursuant to s 347(1)(2) and sentenced to 17 years’ imprisonment;
(c)	The State v Henry Levo (2015) N6029, in which the offender was a policeman on duty at a police station and committed the offence against a female detainee of the police lock-up. He was charged pursuant to s347(1) and sentenced to 10 years of imprisonment. 
19.	For reasons known only to the State, the accused in this case was not charged with committing the offence in circumstances of aggravation when those circumstances were clearly available on the facts alleged.  

20.	The choice of charge is a matter for the State and that power is not subject to any direction or control: Ngasele v The State (2003) SC731. It is a serious omission, however, for the State to fail to charge a circumstance of aggravation when it is clearly available on, if not intrinsic to, the facts alleged by the State.  In this case the allegation was that a police officer raped a woman in police custody. It was an essential part of the State’s allegation at trial and should have been charged.  

21.	It is our observation that such omissions, especially with respect to age or relationship of trust, often occur in cases of alleged sexual violence against women and children. In many cases this appears to be due to a lack of attention or experience on the part of the prosecutor. Whilst ultimately a matter for the State, it is in our view appropriate for the Court to raise the matter with both counsel prior to arraignment in such circumstances.    
    
22.	The State is also reminded of its own charging policy which provides that it should proceed in relation to a charge which reflects the nature and extent of the criminal conduct disclosed by the evidence and provides the court with an appropriate basis for sentence, which subject to certain exceptions, should be the most serious one disclosed by the evidence: Prosecution Policy, 2006 at Clause 9.   

23.	Returning to the present case, the applicant has failed to demonstrate identifiable error in the exercise of sentencing discretion. The trial judge appropriately considered all relevant matters. 

24.	It is also our view that this was a case conducted in gravely aggravating circumstances warranting the maximum penalty within the permissible range.  The applicant has failed to demonstrate that the sentence of 15 years of imprisonment was manifestly excessive.

25.	Finally, there is no basis for the contention that the trial judge ordered the applicant to pay damages of K5000 or more which had been claimed in related human rights proceedings, as a condition of sentence and ultra vires of his powers to make orders for compensation under s 5 of the Criminal Law (Compensation) Act 1991.  On the face of the judge’s remarks on sentence and the final orders imposed no such order was made.

26.	There was a statement by the applicant on allocutus that default judgment of K5406 had been entered against him in separate human rights proceedings. Similar submissions were made by his counsel. It appears that payment had yet to be made at the time of sentencing and the applicant sought suspension of his sentence to enable him to raise the funds for that payment. Given the nature and gravity of the offence, we agree that this was not an appropriate case for suspension.  

27.	Accordingly, the applicant’s review of sentence fails. 

ORDERS

28.	We make the following orders.

(1)	The review against sentence is dismissed.
(2)	The sentence of fifteen years of imprisonment is affirmed.
________________________________________________________________
Office of the Public Solicitor: 		Lawyers for the Applicant 
Office of the Public Prosecutor:    	Lawyers for the Respondent