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State v Kila (No.2) [2009] PGNC 245; N3930 (15 July 2009)

N3930

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO 722 OF 2006

THE STATE

V

PHILIP KILA (NO 2)

Madang: Cannings J
2009: 8, 9 April, 15 July

SENTENCE

CRIMINAL LAW – sentencing – rape – sentence after trial – two circumstances of aggravation – offender a police officer on official duty; victim, a young woman – use of firearm to threaten victim; breach of trust – Criminal Code, Section 347(2) – sentence of 17 years.

A police officer was found guilty after a trial of the rape of a young woman. He committed the offence at night, while searching the victim's family's house in the course of a police raid of a village. He threatened her with the police-issued firearm that he was carrying, then sexually penetrated her without consent. There was no aggravated physical violence.

Held:

(1) The starting point for sentencing for rape under Section 347(2) of the Criminal Code is 15 years imprisonment.

(2) Mitigating factors are: offender acted alone; no torture; no confinement; victim had no disability; no STD; spontaneous incident; no other indignity; co-operated with police; no further trouble; genuine remorse; first-time offender; effect on offender's family.

(3) Aggravating factors are: large age gap; victim of vulnerable age; firearm involved; abuse of trust and authority; penile penetration; no provocation; no dignity; emotional impact on victim; did not give himself up; took the matter to trial; not a youthful offender; broke bail.

(4) A sentence of 17 years was imposed. The pre-sentence period in custody was deducted and none of the sentence was suspended.

Cases cited

The following cases are cited in the judgment:

The State v Alex Matasol Hagali CR 928/1997
The State v Douglas Jogioba CR 1765/2005, 26.10.07
The State v Eliza Gori & Timothy Aka CR 1571 & 1572/2005, 24.04.08
The State v George Tomeme CR 920/2002, 18.07.07
The State v James Yali (2005) N2989
The State v Jeffery Wangi (2006) N3016
The State v Joe Sime CR 1078/2004, 25.08.06
The State v Joe Taliva CR 135/2008, 22.02.08
The State v Michael Waluka Lala CR 215/2004, 08.06.05
The State v Noah Mamari CR 582/2007
The State v Noutim Mausen CR 596/2004, 24.08.05
The State v Philip Kila (2008) N3687
The State v Philip Nangoe CR 392/2006
The State v Wabe Kapak CR 894/2008, 27.10.08
The State v William Tokon CR 1928/2005, 11.12.07

SENTENCE

This is a judgment on sentence for rape.

Counsel

J Wala, for the State
J Kolkia, for the accused

15 July, 2009

1. CANNINGS J: This is a decision on sentence for a man convicted after trial of the rape of a young woman. The offender, Philip Kila, is a 38-year-old police officer based in the Transgogol area of Madang Province. In the early hours of 17 October 2005 he was engaged in a police operation that involved the raid of Garaty village in the Bogia District, searching of premises and apprehension of suspects. He entered a house and found the victim, a 19-year-old woman, and threatened her with the police-issued firearm he was carrying. Then he sexually penetrated her by introducing his penis into her vagina, without her consent. There was no aggravated physical violence. Further details of the offence are in the written judgment on verdict in The State v Philip Kila (2008) N3687.

ANTECEDENTS

2. The offender has no prior convictions.

ALLOCUTUS

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

Firstly I would like to thank this court for its time and the patience it has exercised during the length of this trial, having finally come to the conclusion of this matter.

The situation was worsened when I absconded from bail, I would like to apologise to this court for that, I had my own reasons. In 2005 when I was first remanded at Beon Jail I went through some very bad experiences. Unspeakable acts were done to me and this gave me the resolve to fight this matter and try all my best to get out and avoid being sent back to prison.

Your Honour, apart from that, I would also like to apologise to the complainant, who is not present in this court today. I would like to make it known that I am sorry for everything that I had done, for the crime that I committed and have been found guilty of. Within my heart, if it was in my power to go back to that day, I would gladly do so and place myself as far away as possible from Garaty village.

I would also like to apologise to my employer, the Police Department, the State and the government of the day for the image painted upon it by my actions. I now realise that no matter how I view the incident from my perspective, I have been convicted and face a sentence. I apologise to my wife and children and my family for the hardship that I have put them through and for giving them a very hard time.

I stand now before this court having been found guilty and I ask this court when passing sentence do so according to the integrity I have spoken with and consider what I have told the court. Every day of my life in prison, there is a threat to my life, having gone through the things that I have just told this court. I was subjected to sexual abuse and sodomy on several occasions and these things made me abscond and dragged this case out for a very long time.

I ask this court for leniency and for the court's mercy upon passing sentence.

PRE-SENTENCE REPORT

4. Philip Kila is from Niruka village in the Kwikila area of Central Province. He is married to a Bundi woman and they have seven children aged from five to 16 years. He has a grade 10 education. He graduated from the Bomana Police Academy in 1989 and was posted to Madang Province and has been stationed there ever since. At the time of the offence he held the rank of Constable and was attached to Mawan Police Station. His financial position is reasonably sound and he is in good health.

5. The victim, 19 years old at the time of the offence, is now aged in her early 20s, married with one child. She hates the offender. She feels that the emotional scar of the incident will stay with her for life. Her family has demanded compensation of K250,000.00. The offender has offered to pay K70,000.00 but no agreement has been reached.

6. The probation officer who prepared the report does not consider that the offender will be a danger to the victim or her relatives or the community if he is released from custody but does not recommend probation.

SUBMISSIONS BY DEFENCE COUNSEL

7. Mr Kolkia acknowledged the seriousness of the offence but stressed that there were a number of mitigating factors: the offender's genuine remorse; he acted alone; he did not torture or confine the victim or cause her serious physical harm or pass on any sexually transmitted disease; he was not a member of her family; the victim was not an especially vulnerable person; it was not a planned event; he committed no further sexual indignities or perversions against the victim; he co-operated with the police; and he has not caused any further trouble for the victim or her family.

8. He submitted that a sentence of 16 years would be appropriate and all of it should be suspended in view of the security risks that the offender, as a police officer, faces in custody.

SUBMISSIONS BY THE STATE

9. Mr Wala, for the State, submitted that a sentence of 25 years should be imposed. Although it appears that the victim suffered no serious physical injuries she was emotionally damaged to a very significant extent. It was an extremely serious case of rape as the offence was committed by a serving police officer in the course of official police duty and a firearm was used to threaten the victim. The victim's young brother witnessed the incident so there is more than one victim involved. The offender had been a police officer for many years and he knew the law and he knew that he was in a position of trust and authority. A young woman in the position of the victim was entitled to trust a police officer who came into her home and turn to him for protection. Instead the offender betrayed that trust and turned upon the victim.

10. He made things worse by taking the matter to trial and forcing the victim to relive the trauma of the incident. He now wants the court's mercy and asks the court to consider the welfare of his wife and his children, but these are the things he should have thought of before he committed the offence.

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 from the term of imprisonment?
• 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 two circumstances of aggravation were included in the indictment and proven at the trial:

• the offender carried a firearm, pointed it at the victim and threatened to use it; and
  
• the offender, in committing the offence abused the position of trust and authority that he was in by virtue of his being a police officer on official duty.
  

Therefore the maximum penalty is life imprisonment.

14. 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?

15. In The State v James Yali (2005) 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; and
  
• if circumstances of aggravation are charged and proven (Section 347(2)): 15 years.
  

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

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

16. Before I fix a sentence, I will consider recent sentences I have imposed for rape, as shown in the table below.

TABLE 1: RAPE SENTENCES IMPOSED BY CANNINGS J, 2005-2008

STEP 4: WHAT IS THE HEAD SENTENCE?

17. There are a number of considerations to take into account in deciding on the head sentence. I have listed them below as a series of questions. An affirmative (yes) answer is regarded as a mitigating factor. A negative (no) answer is an aggravating factor. A neutral answer will be a neutral factor. The list is based on the considerations I identified in Yali's case. The more mitigating factors there are, the more likely the head sentence will be reduced below the starting point. The more aggravating factors present, the more likely the head sentence will be above or at the starting point.

18. However, sentencing is not an exact science. It is a discretionary process. When a factor is marked as mitigating or aggravating it does not mean necessarily that it is given the same weight as another mitigating or aggravating factor. Some mitigating factors may be 'strongly mitigating'. Others may be 'mildly mitigating'. The same goes for aggravating factors.

19. Three sorts of considerations are listed. Numbers 1 to 15 focus on the circumstances of the incident. Numbers 16 to 21 focus on what the offender has done since the incident and how he has conducted himself. Numbers 22 to 26 look at the personal circumstances of the offender and give an opportunity to take into account any other factors not previously considered.

1. Is there only a small age difference between the offender and the victim? No. The offender was aged 38 at the time of the offence and the victim was only 19, a gap of 19 years.
   
2. Is the victim well over the age of 16 years and not an old person? No.
   
3. Was there only one offender? Yes.
   
4. Did the offender not use or threaten to use a weapon? No.
   
5. Did the offender not torture or cause grievous bodily harm? Yes.
   
6. Did the offender not confine or restrain the complainant before or after the commission of the offence? Yes.
   
7. Did the offender not abuse a position of trust, authority or dependency? No.
   
8. Was the form of penetration other than penile penetration? No.
   
9. Did the victim not suffer from a serious physical or mental disability? Yes.
   
10. Did the offender not suffer from HIV or AIDS and not pass on a sexually transmitted disease to the victim? Yes.
    
11. Was the offence unplanned, ie was it a spontaneous incident? Yes.
    
12. Did the victim provoke or aggravate the offence? No.
    
13. Was the victim not subject to further sexual indignities or perversions, in addition to the act of rape? Yes.
    
14. Did the offender treat the victim with dignity immediately after committing the offence? No, he just left her in the house and resumed duty as if nothing had happened.
    
15. Did the incident have a minimal emotional impact on the victim? No.
    
16. Did the offender give himself up after the incident? No.
    
17. Did the offender cooperate with the police in their investigations? Yes.
    
18. Has the offender done anything tangible towards repairing his wrong, eg offering compensation, engaging in reconciliation, organising counselling and support for the complainant or personally or publicly apologising for what he did? Neutral. He has offered to pay compensation but nothing has eventuated.
    
19. Has the offender not caused further trouble to the complainant or the complainant's family since the incident? Yes.
    
20. Has the offender pleaded guilty? No.
    
21. Has the offender genuinely expressed remorse? Yes.
    
22. Is this his first offence? Yes.
    
23. Can the offender be regarded as a youthful offender? No.
    
24. Will a lengthy jail term have an adverse effect on the offender's family and others dependent on him? Yes.
    
25. Was the offender, prior to the incident, a model citizen, a person of good character or a person with an outstanding record of public service? Neutral.
    
26. Are there any other circumstances of the incident or the offender that warrant mitigation of the head sentence? No. A further aggravating factor is that the offender broke his bail (absconded) during the course of the trial and a warrant for his arrest had to be issued.
    

20. To recap, mitigating factors are:

• No 3 – offender acted alone;
• No 5 – no torture;
• No 6 – no confinement;
• No 9 – victim had no disability;
• No 10 – no STD;
• No 11 – spontaneous incident;
• No 13 – no other indignity;
• No 17 – co-operated with police;
• No 19 – no further trouble;
• No 21 – genuine remorse;
• No 22 – first-time offender;
• No 24 – effect on offender's family.
  

21. Aggravating factors are:

• No 1 – large age gap;
• No 2 – victim of vulnerable age;
• No 4 – firearm involved;
• No 7 – abuse of trust and authority;
• No 8 – penile penetration;
• No 12 – no provocation;
• No 14 – no dignity;
• No 15 – emotional impact on victim;
• No 16 – did not give himself up;
• No 20 – took the matter to trial;
• No 23 – not a youthful offender
• No 26 – broke bail.
  

22. The other factors (Nos 18 and 25) are neutral. Weighing all these factors (12 mitigating factors compared to 12 aggravating factors), I consider that the head sentence should be above the starting point earlier identified. As Mr Wala stressed, this was an extremely serious case, involving a shocking betrayal of trust and authority and the threatened use of a firearm. Those two factors make this case more serious than all other cases referred to earlier. A strong deterrent sentence is required. I fix a head sentence of 17 years imprisonment.

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

23. Yes, I decide under Section 3(2) of the Criminal Justice (Sentences) Act that there will be deducted from head sentence the whole of the pre-sentence period in custody, which I estimate to be 14 months.

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

24. Mr Kolkia submitted that all of the sentence should be suspended but that is a very unrealistic submission. Rape is a crime of violence and the community expects that rapists will be imprisoned. It may be proper for the court to consider suspending part of a rape sentence, perhaps even all of it, if there had been reconciliation, forgiveness and compensation. But here, none of those things have happened.

25. The offender spoke passionately about the abuses he has been subjected to while he has been in custody and there is no reason to doubt the truth of what he has said. He feels that his life is at risk if he stays in jail. This is a genuine concern but it is not a reason to suspend the sentence. Police officers who commit crimes and are imprisoned are inevitably at risk. Special measures can be taken in the jail to alleviate that risk. Every prisoner has the right to be treated with humanity and with respect for the inherent dignity of the human person and if that right is denied him he may approach the Court for enforcement of his rights.

26. The pre-sentence report does not warrant a suspended sentence of any sort. Therefore none of the sentence will be suspended.

SENTENCE

27. Philip Kila, having been convicted of the crime of rape in circumstances of aggravation under Sections 347(1) and (2) of the Criminal Code, is sentenced as follows:

Sentenced accordingly.
_________________________

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