Levi Levy v R
| Jurisdiction | Jamaica |
| Judge | P Williams JA |
| Judgment Date | 04 March 2022 |
| Neutral Citation | JM 2022 CA 28 |
| Docket Number | SUPREME COURT CRIMINAL APPEAL NO 36/2018 |
| Court | Court of Appeal (Jamaica) |
[2022] JMCA Crim 13
THE HON Miss Justice P Williams JA
THE HON Mrs Justice Simmons JA
THE HON Mrs Justice Dunbar-Green JA (AG)
SUPREME COURT CRIMINAL APPEAL NO 36/2018
IN THE COURT OF APPEAL
Miss Melrose Reid for the appellant
Miss Kathy-Ann Pyke and Miss Sophia Rowe for the Crown
On 26 February 2018, Levi Levy (‘the appellant’) was arraigned in the Home Circuit Court before Harris J (as she then was) (‘the learned judge’) and a jury on an indictment containing two counts. The first count charged him with the offence of rape and the second with the offence of grievous sexual assault. On 28 February 2018, he was found guilty on both counts. On 20 March 2018, he was sentenced to 18 years' imprisonment at hard labour on each count. In relation to count one of the indictment, the learned judge specified that he should not be eligible for parole until he has served 12 years.
On 14 January 2020, a single judge of this court refused the appellant's application for leave to appeal his conviction, having found that there was no basis in law or fact on which the verdict could justifiably be disturbed. However, leave to appeal sentence was granted for this court to formally bring the sentence for grievous sexual assault in line with the stipulation of section 6(2) of the Sexual Offences Act. As is his right, the appellant renewed his application for leave to appeal conviction before us.
There were some undisputed facts that form the background of what transpired between the appellant and the complainant (‘YH’) on the night of 3 January 2015. They met via the social media platform Facebook and had been communicating via that medium and the telephone from sometime in December 2014. She knew his name only as “Jefferton”. After several conversations, they agreed that they would meet on 3 January 2015 at York Pharmacy in Half-Way-Tree in the parish of Saint Andrew.
They met, as agreed, sometime between 8:00 pm and 9:00 pm on that night and the appellant drove to Bachelor's Guest House in the Cross Roads area. Upon arrival, he exited the car leaving YH alone for a while and went to speak to two ladies on the premises. He returned to the car and eventually invited YH to accompany him into the building. They ended up in a bedroom where sexual intercourse took place, and he placed his penis in her mouth. YH said she did not consent to either of those activities but was forced to participate. The appellant said they engaged in pre-arranged consensual sex.
YH testified that the plan that night was to go to Pulse in New Kingston, which the appellant had told her was his usual hang out spot. However, he instead took her to the location in the Cross Roads area. She said when they got there, she questioned him about the place because it looked like a motel. He told her that it was a regular spot for him and that it had a “chill place where you can drink, like a bar”.
She explained that after seeing him speak to the two ladies, with whom he seemed familiar, she felt comfortable enough to have accepted his invitation to leave the car and go around to the back of the premises with him. However, instead, they went inside the building, where she noticed that there was, in fact, no bar. She questioned him about this. He responded by saying, “A what, you fraid a mi? Mi naah duh yuh nothing”. She continued to complain and he told her that she had to come with him because he had already paid the money. When he opened a door near the lobby, she noticed a bed was in the room. YH testified that she said to him, “Mi nuh up to whe yuh up to”. This time he responded by saying “Well mi already pay mi money, mi naa do yuh nutten soh yuh nuh haffi feel fraid”. She told him that she would not have sex with him and went into the room and sat on a chair.
YH's evidence was that whilst she sat there texting on her phone, the appellant went into the bathroom in the room. Upon exiting the bathroom, he lay on the bed and asked her to come and lie beside him. She refused. He then told her that he was tired and was going to take off his clothes and lie on the bed until it was time to leave. She said he proceeded to ask her some sexual questions before he again asked her to come to lie with him on the bed. At that point, she started feeling fearful and sent some text messages to her sister about her fear.
YH said the appellant eventually got up, approached her and started touching her. She told him, “Mi nuh deh pon what you deh pon”, and she told him she was ready to go home. He then held her hands and pulled her to the bed. She again told him “Mi nuh deh pon weh yuh deh pon”. He pushed her on the bed, and she started screaming.
YH testified that she continued screaming and crying while telling him she did not want to have sex with him. Despite her efforts, he got on top of her, ripped off her panties and eventually inserted his penis into her vagina. She described his actions as being overly aggressive, and he ordered her to stop the noise. When he eventually got off her, he went into the bathroom, and she too got up and started to put on her clothes and underwear. He came back into the room and asked her if she was not going to perform oral sex on him. She responded, “Mi nuh do dem somting deh, mi just waa go a mi yard”.
YH said he then told her to get on her knees. She was crying and refused to do so. He said, “Don't mek mi have fi do things to yuh whe mi nuh waa do”. She said this made her feel scared, so she went on her knees. He told her to open her mouth and used his hand to slap her several times in her face. He then pushed his penis into her mouth, and she bit him on it. He slapped her in her face again, and this time her face started to bleed.
She said that when the appellant noticed that her face was bleeding, he apologized and “was trying to be nice to her”. She then went into the bathroom and saw that there were welts on her face. The appellant followed her to the bathroom and continued to apologise, and told her not to tell anyone while trying to use her hair to hide the welts. She told him to leave her alone and repeated that she wanted to go home. He responded that they could leave at that point because the time he had paid for was expired. By this time, it was about 11:30 pm.
The appellant took YH to Halfway Tree, where she got a taxi to go home. Whilst in the taxi, YH said she went on Facebook and started sending messages to the appellant expressing her disbelief that he could have done what he did to her and ended by “unfriending” him. The following morning YH told her sister MT, with whom she lived, what had happened to her. She said, at that time, her face was swollen and had a lot of pink bruises.
Whilst YH was with her sister, the appellant texted her, insisting that she should “add [him] back” and threatened to release a video of her performing oral sex on him. Soon thereafter he called her, and she put the phone on speaker. He told her she was his “bitch” now and said other abusive and threatening things to her. She said her sister recorded what was being said. After being encouraged by her sister to do so, YH discussed the matter with a police officer that she knew. A few days later, YH reported the matter at the Spanish Town Police Station and then went to the Centre for the Investigation of Sexual Offences and Child Abuse in Saint Andrew.
The appellant continued to send her messages, and upon reporting this to the police, they gave her certain instructions. As a result, she arranged to meet the appellant again at York Pharmacy. On 9 January 2015, at about 8:40 pm, YH and the police went to York Pharmacy, and, at about 9:15 pm, the appellant drove up. YH remained inside the pharmacy while the police approached the appellant and arrested him. She subsequently attended an identification parade where she identified the appellant as the person who had raped her.
Under intense cross-examination, YH agreed that she had discussed with the appellant her need for $50,000.00 to assist with funding her studies. She was a student at the University of the West Indies at the time. She also agreed that the appellant had promised to assist her. She, however, said that based on their conversations, the appellant “was saying if everything goes well and [they] continue talking by the time [she] was ready to go on the [student work and travel] programme he will help [her]”.
She acknowledged that some of the conversations they had via Facebook had been sexual in nature. She denied that based on those conversations, she knew that a possibility existed that the appellant wanted to have sex with her. She denied suggestions that she had engaged in sexual activity with the appellant consensually. She denied that she had agreed to have sex with him in exchange for the money and that she had fabricated the story about being raped by the appellant because he had failed to give her the money as promised.
When pressed to explain why she had agreed to meet with the appellant, she said that based on their conversations, she got the courage to meet up with him “because [they] were conversing and everything was good”. She explained that she had not felt uncomfortable as they travelled in the car nor when they got to the motel and entered the room. She said that she was saying to herself that “If him want duh something, [she] ah goh tell him no, because [she] wasn't thinking that he would try and force the issue”.
YH accepted that shortly after leaving the appellant on 3 January 2018, she had messaged him telling him that he was not a good person, not a man of his word and that he was to keep his money. She, however, explained that she was referring to the money he had offered to refund her for chartering a taxi to travel to meet with him.
She admitted that...
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