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State v Suma [2012] PGNC 27; N4622 (20 February 2012)

N4622

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO 151 OF 2011

THE STATE

V

RON SUMA
Mount Hagen: Makail, J
2011: 06th April & 10th May & 2012: 20th February

CRIMINAL LAW - Sentence - Production of pornographic material - Photographs of different sexual acts - Penile vaginal penetration - Anal penetration - Oral penetration - Repeated sexual acts over a period of time - Distribution of pornographic material - Unintentional distribution - Extent of and effect of on viewers - Custodial sentence appropriate - Criminal Code, Ch 262 - Sections 19 & 228(1)(d).

CRIMINAL LAW - Sentence - Sexual penetration of a person against the order of nature - Different sexual acts - Anal penetration - Oral penetration - Repeated sexual acts by consenting adults over a period of time - No injuries suffered by female accomplice - Custodial sentence appropriate - Criminal Code, Ch 262 - Sections 19 & 210(1)(a).

CRIMINAL LAW - Sentence - Production and distribution of pornographic material - Sexual penetration of a person against the order of nature - Offences committed in a course of a single transaction - Concurrent sentences appropriate - Criminal Code, Ch 262 - Sections 228(1)(d) & 210(1)(a).

Facts

The accused, a teacher by profession, pleaded guilty to one count of production and distribution of pornographic material and one count of sexual penetration of a person against the order of nature under section 228(1)(d) and section 210(1)(a) of the Criminal Code, Ch 262 respectively. He and a female accomplice while studying at the University of Goroka, performed different sexual acts over a period of time which included penile vaginal, anal and oral sex and were captured by a digital camera and photographs were widely distributed and viewed by the public. He pleaded for leniency and asked for a non-custodial sentence, among other reasons, that the production of the pornographic material was for personal use and benefit, that is, for medical reasons and the distribution was unintentional.

Held:

1. On a charge of production and distribution of pornographic material under section 228(1)(d) of the Criminal Code, Ch 262, the prescribed maximum penalty is a term of 2 years imprisonment and in the exercise of the Court's sentencing discretion under section 19 of the Criminal Code, Ch 262, the Court may consider other factors such as the manner and purpose in which the pornographic material was produced, the manner and purpose in which it was distributed, the extent of its distribution and its effect on the viewers.

2. On the evidence, the production of the pornographic material was for personal use and benefit. The photographs were not viewed solely for medical reasons but also for sexual gratification and pleasure and were distributed unintentionally.

3. As the pornographic material was widely circulated at the University including publication on the website of PNG Telikom, a personal and public deterrence was necessary and a custodial sentence was appropriate in the circumstances.

4. The offender was sentenced to a term of 1 year imprisonment in hard labour.

5. On a charge of sexual penetration of a person against the order of nature under section 210(1)(a) of the Criminal Code, Ch 262, the prescribed maximum penalty is a term of 14 years imprisonment and in the exercise of its sentencing discretion under section 19 of the Criminal Code, Ch 262, the Court may take into account the age of the victim, the effect on the victim whether physical or emotional and its extent and whether the act was by consent or not.

6. On the evidence, the anal and oral sex was performed by two consenting adults over a period of time and the female partner did not suffer any injuries and it was not known nor had it been suggested if she had been emotionally affected by the ordeal.

7. The offender was sentenced to a term of 6 months imprisonment in hard labour.

8. The offence of producing and distributing pornographic material under section 228(1)(d) of the Criminal Code, Ch 262 was committed simultaneously with the offence of sexual penetration of a person against the order of nature under section 210(1)(a) of the Criminal Code, Ch 262. Applying the single transaction rule, both sentences were served concurrently.

Cases cited:

Glenn Luceana -v- The State (2008) N3460
Gregory Kasen -v- The State (2001) N2133
The State -v- Raphael Kuengu [1993] PNGLR 124
The State -v- John Puwa Bui (1990) N944
Secretary of Law -v- Kabua Dewage [1975] PNGLR 100
The Public Prosecutor -v- Kerua [1985] PNGLR 85

Counsel:

Mr J Waine, for the State
Mr T Dalid, for Offender

SENTENCE
20th February, 2012

1. MAKAIL, J: The accused, a teacher by profession, pleaded guilty to one count of producing and distributing pornographic material contrary to section 228(1)(d) of the Criminal Code, Ch 262 and one count of sexual penetration of a female against the order of nature contrary to section 210(1)(a) of the Criminal Code, Ch 262.

2. At the time of the commission of the offences, he was a student at University of Goroka in 2009. Between the months of May and June of 2009, he and a female accomplice named Kymlyn Macksaen performed different sexual acts in a house rented by him off campus. They were in a boy-friend/girl relationship. They performed different sexual acts on several different occasions over a period of time which included penile vaginal, anal and oral sex. These sexual acts were captured by a digital camera installed in the room of the house and the photographs were loaded on a laptop computer owned by the offender and also a flash drive. These were then connected to the Telikom network website and made available for public viewing. These matters came to light and the offender was arrested and charged.

3. On a charge of production and distribution of pornographic material under section 228(1)(d) of the Criminal Code, Ch 262, the prescribed maximum penalty is a term of 2 years imprisonment. Section 228 is set out in full below:

"228. Obscene publications and exhibitions.

(1) A person who knowingly, and without lawful justification or excuse -

(a) publicly sells or exposes for sale -

(i) an obscene book or other obscene printed or written matter; or

(ii) an obscene picture, photograph, drawing or model; or

(iii) any other object tending to corrupt morals; or

(b) exposes to view in a place to which the public are permitted to have access, whether or not on payment of a charge for admission -

(i) an obscene picture, photograph, drawing or model; or

(ii) any other object tending to corrupt morals; or

(c) publicly exhibits any indecent show or performance, whether or not on payment of a charge for admission to see the show or performance; or

(d) for the purposes of, or by way of, trade or sale, or for distribution or public exhibition, makes, produces or has in his possession an obscene writing, drawing, print, painting, picture, poster, emblem, photograph or cinematograph film, or any other obscene object; or

(e) for a purpose referred to in Paragraph (d)-

(i) imports, conveys, or exports; or

(ii) causes to be imported or exported; or

(iii) puts into circulation,

any obscene matter or thing referred to in that paragraph; or

(f) carries on or takes part in a business (whether public or private) concerned with any obscene matter or thing referred to in this section, or deals in, distributes, exhibits publicly or makes a business of lending any such obscene matter or thing; or

(g) with a view to assisting in an act made punishable by this section, advertises or makes known by any means that a person is engaged in any such act, or how or from whom any obscene matter or thing referred to in this section can, directly or indirectly, be procured,

is guilty of a misdemeanour.

Penalty: Imprisonment for a term not exceeding two years.

(2) It is a defence to a charge of an offence against Subsection (1) to prove that it was for the public benefit that the act complained of should be done.

(3) Whether the doing of an act referred to in Subsection (1) is or is not for the public benefit is a question of fact." (Emphasis added).

4. The offender is a matured adult of 41 years. He is a teacher by profession having taught in schools in Madang and Southern Highlands Provinces for over 24 years since graduating from Madang Teachers College in 1986 and obtaining his certificate in teaching in 1987. As a teacher, he holds a position of tremendous responsibility. He is responsible for educating the young people of this country to be future leaders. For him to engage in sexual acts of this nature is unbecoming of a teacher and a bad example to the young people, and more importantly, his students.

5. He explained that the production of the photographs of the various sexual acts was for personal benefit and not intended for public viewing. It was him and his partner who were involved in producing the photographs. There was nobody else involved. The photographs were taken for medical reasons because his partner was infected with a sexually transmitted disease and was on medication. The photographs were taken for them to observe the healing process to her vagina. Because of his partner's infection, he did not perform oral sex on her. The photographs showing him having oral sex with his partner were only a pose. It was only her who performed oral sex on him.

6. Be that as it may, it is hard to believe the explanation given by the offender. The photographs show graphic scenes of different sexual acts. There are photographs showing his partner sucking his penis and there are others showing him penetrating her anus with his penis. There are others showing him penetrating her vagina with his penis with either him on or under her. Further, there are others showing his erect penis and her vagina. There are also others showing his partner either lying down on the bed half naked with her genital exposed or completely naked. There are others showing his partner's breasts and him sucking her breasts. Others show him fondling her vagina and clitoris and her fondling his penis.

7. These photographs cannot be said to be solely for medical reasons. On the contrary, they were also for sexual gratification and pleasure. They were viewed by the offender and his partner for sexual pleasure and excitement and it does not matter if he did not perform oral sex on his partner. The fact is, he had posed in the photographs in the act of performing oral sex. These photographs somehow ended up in the hands of the public. They were widely circulated at the University including publication on the website of PNG Telikom.

8. Was it intentional? The offender's counsel submitted the photographs were not intended for public consumption but for private viewing where the offender and his partner consented to taking these photographs. The State submitted otherwise, citing that the depositions establish that the offender and his partner had produced them with the intention of distributing them. The benefit of doubt must be given to the offender and his explanation for the distribution of the photographs being unintentional is accepted. He said it was accidental because the photographs were taken in the month of June, within a period of 3-4 weeks. This was the period his partner was suffering from the sexually transmitted infection. The photographs were downloaded into a lap-top computer for both of them to have a good view of his partner's genital area at her request. Following that, the photographs were deleted from the lap-top computer and the digital camera was returned to its original owner.

9. Then, during the second semester, the lap-top computer crashed and he gave it to his best friend, a computer specialist with the Information Technology Department of the University to check and fix it. His friend told him, it had a bigger problem then what he initially had expected. He gave it to his friend on a Wednesday and his friend returned it on a Monday of the following week. He had no idea that the photographs were circulated at the University between July and August. Someone other than him must have widely distributed the photographs which were viewed by audience. He had no idea that the photographs were circulated at the University between July and August. He came to know about it in November and immediately asked his friend to retrieved them. However, it was too late. The photographs were already circulated to the public and it was impossible to retrieve them.

10. On the evidence, it is accepted the production of the pornographic material was for personal use and benefit. The photographs were not viewed solely for medical reasons but also for sexual gratification and pleasure and were distributed unintentionally.

11. What then should be an appropriate sentence for an offender in a case such as this? Should it be the prescribed maximum penalty of 2 years imprisonment or should it be less noting of course the Court's sentencing discretion under section 19 of the Criminal Code, Ch 262. Neither counsel had referred to any case authority on production and distribution of pornographic material (photographs). However, counsel for the offender referred to Glenn Luceana -v- The State (2008) N3460 and Gregory Kasen -v- The State (2001) N2133 and submitted a non-custodial sentence would be appropriate. These cases may give some guidance in determining an appropriate sentence for the offender.

12. In Glenn Luceana's case, Paliau, AJ (as he then was) heard an appeal from the District Court which imposed a sentence of 4 months imprisonment in hard labour on the appellant. The appellant had been found guilty after a trial in the District Court for having in possession pornographic material contrary to section 25A(1)(a) of the Summary Offences Act. His Honour concluded the appellant did not make, produce, perform, exhibit or sell the pornographic material but was in possession of them for personal consumption. Applying the case of Gregory Kasen, his Honour was of the view that it was not a worst case that would warrant an imprisonment term. His Honour said:

"An offence of possession of pornographic material in my mind is not the worst type of category of offence, compared to production, sale, performance, making and exhibiting. In particular when public consumption is not an element. I think that the only time that we should all be concerned about the moral standards of decency is when the community and the public at large are at risk, in the sense that these articles are openly exhibited in public. Mere possession of articles in the privacy of one's home does not in my view amount to the worst category of offence."

13. While his Honour found that the District Court was entitled to impose a custodial sentence, his Honour was of the view it was not a serious offence and instead imposed a non-custodial sentence, opting to use imprisonment as the last resort. His Honour also added:

"All in all I am of the view that an error has occurred which has affected the learned magistrate's discretion on sentencing. The identifiable error is that the learned magistrate placed too much weight on the deterrent aspect of sentencing then rehabilitative aspect because of the continuing commission of the offence by other members of the public."

14. In Gregory Kasen's case, Kirriwom, J in dealing with an appeal against the decision of the District Court concerning the offence of possession of pornographic material under section 25A(1)(a) of the Summary Offences Act said this:

"From the public perspective, it could be argued that the learned magistrate failed to give sufficient weight to the nature of the offence, in view of the fact that this type of offence is often committed in private in the privacy of one's own home. No one is offended, however obscene or indecent the articles(s) or pornographic materials may be because they are not for public consumption. The offence is primarily one for monetary fine rather than a custodial sentence. For this kind of offence, prison should be the last resort. In fact this is not the worst case of its kind."

15. Those two cases concerned the offence of having in possession pornographic material. This case concerns the production and distribution of pornographic material. This is the distinction and in the exercise of the Court's sentencing discretion under section 19 of the Criminal Code, Ch 262, the Court may consider other factors such as the manner and purpose in which the pornographic material was produced, the manner and purpose in which it was distributed, the extent of its distribution and its' effect on the viewers. That means a non-custodial sentence may or may not be necessarily appropriate in this case.

16. This is a case where they secretly photographed themselves while performing these different sexual acts behind closed door with no-one else involved. As noted above, the photographs were for private viewing and consumption. But the fact that they produced the photographs themselves makes it more serious than a case where they were merely in possession of the photographs. Then somehow the photographs ended up in public. The distribution or circulation of the photographs only aggravates the situation because the public now has access to them even though the photographs were intended for private viewing and consumption. At the time of the commission of these offences, the offender was a student at the University of Goroka. He was undergoing a bachelor degree course in Special Education. His partner was also a student, studying education at the same University. These are two educated people and should have known better.

17. While there is no evidence of the adverse effect the distribution of the pornographic material has had on the viewers, it has not been disputed the photographs were posted on the website of PNG Telikom and anyone who has internet access may access them. It has also not been disputed the photographs were widely circulated among the student population at the University. Given the wide distribution or circulation of the photographs, the Court cannot ignore the possibility that the photographs have and will corrupt the minds of the people who have and will come across them. The State's submission that the people of Papua New Guinea have declared in and through the Constitution that Papua New Guinea is a Christian country is accepted. Sexual acts of this nature run contrary to the Christian principles that Papua New Guineans believe in and practice. People's mind will be corrupted by these photographs.

18. The offender further stated he is desirous of settling this issue once and for all and move on with his life. He has expressed remorse for what he had done. He apologised to the Court, his family and friends and very importantly to the wife who was in Court to support him in this difficult time. The production of the photographs had drawn a lot of negative publicity by the media. It was reported on EM TV news, the Post Courier and the National newspapers. As a result, he has been stigmatised. He has been shunned and left in isolation by his family, relatives, friends and people. The feeling he has is like someone living with HIV-Aids. He had learnt his lesson and asked for leniency.

19. The pre-sentence report provided by the probation officer Ms Lilly Songoa is helpful. It confirms his request for an expeditious hearing because he intends to pursue further studies at Divine Word University in Madang. The reason to go for further studies and the stigma and humiliation experienced by him have been advanced to support his plea for a non-custodial sentence. However, it must not be overlooked or ignored that he has committed two serious offences. The reasons he has advanced must be viewed as an attempt by him to avoid the consequences of his actions. The offences he had committed were not only against the written law but also a breach of the acceptable standard of moral decency in the society.

20. They were also a gross abuse of the acceptable standard of moral decency in the society because what has been once a sacred part of a man and woman's body is now exposed and abused to a point where it is no longer sacred. Sex has been abused by man and woman and this case is an example of that. The offender and his partner performed these sexual acts and captured them on a camera in secret and thought they would not be caught. They were wrong. They were caught and this is what will happen to those who abuse their body for sexual pleasure and gratification.

21. The pre-sentence report further stated the offender is married to Lucy Langer, the principal of Mendi School of Nursing. He has 5 children. On a personal and family level, this information shows he is a husband and father and should have been a role model to his children. He has failed miserably. He has also breached the trust of his wife. He was supposed to love and cherish her not only when they were living together but very importantly, when they were far apart; him away on studies in Goroka and she in Mendi working. While it is accepted his wife has stood by him during this difficult time and may have forgiven him, it cannot be overlooked or ignored that what he had done was in fact, adultery. He should be ashamed of himself for being unfaithful to his wife. He had not even thought about his family when he committed these offences. It is a mockery for him now to ask for leniency because of his family and the negative effect his actions has had on his family.

22. He also said he is a chronic hypertension patient and had sought medical treatment and advice and was advised to withdraw from school. He did so. He was later terminated from the University. The pre-sentence report also stated he is a chronic hypertension patient. It confirms his plea for leniency because he suffers from chronic hypertension and a custodial sentence is likely to significantly aggravate his medical condition and poses a serious threat to his life. But it is hard to comprehend a hypertension patient of his kind would engage in such sexual orgies. How comes he was able to perform these sexual acts without any slightest concern about his health?

23. Now that he has been caught, all of a sudden his health has become a number one priority in his life. His concern about his health is not only a mockery but also not supported by sufficient medical evidence, noting of course the medical report provided by Dr Sanoh Tahon dated 19th October 2009 contradicts the medical report of Dr Charles Magoekia of Mendi Base Hospital dated 13th January 2009 because at the time he enrolled at the University, it was not reported by Dr Magoekia that he was a chronic hypertension patient.

24. One final matter of concern to the Court is the propensity of the offender to re-offend. Neither counsel had made submissions on this issue nor had the State put forward evidence on it. The Court's concern is that the offender is a teacher and has easy access to children of young age. He is a primary school teacher and that puts him in a position where he has and would have access to children regularly at school. What guarantee is there that what had happened will not be repeated? The Court must be assured that such acts will not be repeated in future, especially where the offender will have easy access to children who are more vulnerable and prone to manipulation by adults. The only comfort the Court has is his good character. According to the pre-sentence report, the offender is said to be of good character. His village councilor Firman Manua has vouched that for him. He said the offender is a man of standing and has leadership qualities and is actively involved in maintaining peace in the community. The Court will only hope that this is sufficient assurance that he will not re-offend.

25. Weighing all these matters including the pornographic material being widely circulated at the University and published on the website of PNG Telikom against the offender's early guilty plea, expression of remorse, his good character and no prior convictions, it is the considered opinion of the Court, a personal and public deterrence is necessary in the circumstances. The offender is therefore sentenced to a term of 1 year imprisonment in hard labour. There shall be no suspension of the head sentence.

26. In relation to second count, on a charge of sexual penetration of a person against the order of nature under section 210(1)(a) of the Criminal Code, Ch 262, the prescribed maximum penalty is a term of 14 years imprisonment. Section 210 is set out in full below:

"210. Unnatural offences.

(1) A person who -

(a) sexually penetrates any person against the order of nature; or

(b) sexually penetrates an animal; or

(c) permits a male person to sexually penetrate him or her against the order of nature,

is guilty of a crime.

Penalty: Imprisonment for a term not exceeding 14 years.

(2) A person who attempts to commit an offence against Subsection (1) is guilty of a crime.

Penalty: imprisonment for a term not exceeding seven years.

(3) . . . [Repealed]" (Emphasis added).

27. It is noted in the course of producing the pornographic material, the offender performed anal sex on his partner and she performed oral sex on him. These sexual acts were performed by consent of both parties over a period of time. No injuries were sustained by his partner. Given these facts and the Court's sentencing discretion to impose a penalty lesser than the prescribed maximum penalty of 14 years imprisonment, what then would be an appropriate sentence for the offender?

28. Again, neither counsel had referred to any case authority on sentence for this offence. Counsel for the offender referred to the case of The State -v- Raphael Kuengu [1993] PNGLR 124 in his submissions. That case can be distinguished from this case because that was a sodomy case occasioned by an inmate in prison on a fellow inmate. The victim was 16 years and suffered pain and injuries and was psychologically affected by the ordeal. The offender pleaded guilty and was sentenced to a term of 3 years imprisonment. In imposing that sentence, the Court took into account the age of the victim, the use of force, the injuries sustained and the emotional effect of the offence on the victim.

29. The other case which counsel referred the Court to is The State -v- John Puwa Bui (1990) N944. It is also a sodomy case by an inmate on a fellow inmate where the offender was serving a prison term for rape. The Court noted the offender's guilty plea and found that the offender appeared to be a bi-sexual and there was a need to protect the community within and outside the prison system. The Court did not impose a custodial sentence but instead deferred the sentence and placed him on probation upon his release from the sentence for rape. It is noted that decision appeared to have been made in view of the risk posed by the offender to other inmates.

30. In Secretary of Law -v- Kabua Dewage [1975] PNGLR 100, the offender, a male of 14 years penetrated a 3 1/2 year old male child. The Supreme Court said:

"The learned trial judge properly took into account the facts that this was a spontaneous act by a young man of apparently good character, and that the child had suffered no lasting harm. He thus considered that effective sentence of nine months would be sufficient. However, having given the matter full consideration and taking into account Mr. Wall's helpful and lucid argument, in my opinion, the learned trial judge failed to give sufficient weight to two matters. One was the age of the child who was interfered with to the extent of some physical injury, and was of such a tender age which it is the law's special interest to protect. The impressions a forcible incident such as this might have on a child's mind cannot be overlooked."

31. From these cases, some of the factors the Courts have taken into account in sodomy cases are the age of the victim, the effect on the victim whether physical or emotional and its extent and whether the act was by consent or not. This Court is of the view that these factors are also relevant to the offence under consideration. Thus, adopting and applying these factors to the present case, on the evidence, the anal and oral sex was performed by two consenting adults over a period of time and the female partner did not suffer any injuries and it is not known nor has it been suggested if she has been emotionally affected by the ordeal. It appears it was more a sensual and gratifying experience for her.

32. In the circumstances, it is the opinion of the Court this is not a serious case which would attract a sentence above 3 years imprisonment. On the other hand, taking into account those matters in favour of the offender such as his early guilty plea, expression of remorse, good character and no prior convictions in addition to the above mentioned factors, the offender is sentenced to a term of 6 months imprisonment. There shall be no suspension of the head sentence.

33. As the offence of producing and distributing pornographic material under section 228(1)(d) of the Criminal Code, Ch 262 was committed simultaneously with the offence of sexual penetration of a person against the order of nature under section 210(1)(a) of the Criminal Code, Ch 262, applying the single transaction rule, both sentences shall be served concurrently: see The Public Prosecutor -v- Kerua [1985] PNGLR 85. As he has been on bail, his bail monies shall be refunded forthwith.

Offender sentenced accordingly.
____________________________________

Public Prosecutor: Lawyers for the State
Paul Paraka Lawyers: Lawyers for Offender