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State v Moewe [2024] PGNC 135; N10801 (5 April 2024)

N10801

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR No. 337 & 338 OF 2021

BETWEEN
THE STATE

V

WENDY MOEWE
Prisoner

Lae: Polume-Kiele J
2021: 30^th April, 1^st & 30^th July, 2^nd August,
1^st November, 1^st December,
2022: 1^st March, 9^th May, 3^rd & 10^th October,
2023: 7^th February, 8^th & 23^rd March, 11^th & 20^th April, 6^th & 12^th December
2024: 18^th March, 3^rd & 5^th April

CRIMINAL LAW - Sentence – guilty plea – two counts of producing and distributing pornography - Section 17 (1) (a) and (c) of the Cyber Crime Act, 2016 – relevant consideration – custodial sentence appropriate.

Cases Cited:

Public Prosecutor -v- Don Hale (1998) SC564
Avia Aihi v the State [1982] PNGLR 92
Golu v the State [1979] PNGLR 635
Ure Hane v the State [1984] PNGLR 105
State v Aru [2016] PGNC 424; N6917 (14 March 2016)
Thress Kumbamong v The State (2008) SC1017
The Acting Public Prosecutor, v. Uname Aumane, Aluma Boku, Luku Wapulae and Piope Kone [1980] PNGLR 510
Saperus Yalibakut v The State (2006) SC890
The State v Suma [2012] PGNC 27; N4622 (20 February 2012)
Tamara Player Tomscoll v The State [2012] SC1208

Counsel:

Ms. S. Joseph, for the State
Mr. C. Boku, for the Prisoner

SENTENCE

5^th April 2024

1. POLUME-KIELE J: On 23 March 2023, the prisoner, Wendy Moewe pleaded guilty to two counts of producing and distributing pornography pursuant to Section 17 (1) (a) and (c) of the Cyber Crime Act 2016 (Cyber Crimes Act). She was arraigned and convicted on the said charges.
   
2. On 20 April 2023, I heard submissions on sentence, and she was remanded in custody, at CIS, Buimo.
   
3. I reserved my ruling on sentence, which I now deliver.
   

Brief Facts

4. The prisoner, Wendy Moewe pleaded guilty to two (2) counts of producing and distributing pornography contrary to s 17(1) (a) and (c) of the Cyber Crimes Act. The first offending took place between 1 January 2019 and 31 January 2019 at Kiapura Estate, West New Britain Province where the prisoner intentionally and without lawful excuse use a Huawei A10 touch screen mobile phone to produce six (6) pornography pictures of herself, contrary to s 17 (1) (a) of the Cyber Crime Act. The second offending took place at Q23 Circle – Bumayong, Lae between 18 May 2020 and 19 May 2020, the prisoner intentionally and without lawful excuse used an electronic system namely a Facebook messenger to transmit pornography pictures of herself to another Facebook messenger user, namely Joshua Beekay, contrary to s 17 (1) (c) of the Cyber Crimes Act.
   

The charge

5. Section 17 (1) (a) and (c) of the Cyber Crime Act states:
   

“17. PORNOGRAPHY

(1) A person who, intentionally and without lawful excuse or justification, or in excess of a lawful excuse or justification, uses an electronic system or device to:

(a) produce pornography for the purpose of its distribution; or

(b) offer or make available pornography for public viewing; or

(c) distribute or transmit pornography to another person or the public; or

(d) procure or obtain access to pornography whether or not by downloading it or transmitting it either to himself or another person for the purpose of giving effect to or facilitating the commission of any of the offences in Paragraphs (b) (c) above,

is guilty of a crime.

Penalty: (a) in the case of a natural person, a fine not exceeding K25,000.00 or imprisonment for a term not exceeding 15 years, or both; and

(b) in the case of a body corporate, a fine not exceeding K100, 000.00

Committal Court Disposition

6. The Committal Court Disposition shows that you are a young female of about 26 years old and that you have admitted to the charge under the Cyber Crime Act, s 17 (1) (a) and (c) of producing and distributing pornography.
   
7. Upon the reading of the court disposition, I accepted your guilty plea and entered a conviction against you on the charge under the Cyber Crime Act, s 17 (1) (a) and (c) of producing and distributing pornography.
   

Antecedent Report

8. The Antecedent Report presented by the State shows that you are married with two children. You have attained an education up to Grade 12 level. This is the first time that you have been charged for any offence and that you are a first-time offender. Other details in the antecedent report indicate that you have four other siblings and that all of you were raised by your mother.
   

Pre-Trial Detention

9. I also take note that you have been in CIS custody since your remand on 23 March 2023. Consequently, you have been in custody for a period of 1 year 13 days to the date of this ruling.
   

Allocutus

10. During the administration of allocutus, you expressed remorse for what you did. You also stated that your actions in taking the nude pictures were due to threats issued against you by Joshua Beekay, the Facebook Messenger user who is the recipient of your nude pictures. You stated that he threatened to send his agents to come and rape you.
    

Pre-Sentence Report

11. It is now a necessary component of the justice administration for a prisoner to ask the Court to request that the Community Based Corrections Office (“CBC”) prepared a pre-sentence report on the prisoner to ascertain his or her eligibility for probation given the principles established in the case of Public Prosecutor -v- Don Hale (1998) SC564. To facilitate this process, this Court had directed the Probations Officer, (Lae) to prepare and file a Pre-Sentence Report. The Report was promptly provided by the Probation Officer which I have taken the liberty to peruse. If such recommendation is made, then the Court would also take that recommendation into consideration in arriving at its findings and conclusion on penalty.
    

Issue for determination

12. What is the appropriate penalty that should be imposed on you?
    

The applicable law

13. For your case, by your own admission, you have pleaded guilty to two (2) counts of producing and distributing pornography contrary to s 17(1) (a) and (c) of the Cyber Crimes Act. The first offending took place between 1 January 2019 and 31 January 2019 at Kiapura Estate, West New Britain Province where you intentionally and without lawful excuse use a Huawei A10 touch screen mobile phone to produce six (6) pornography pictures of yourself, contrary to s 17 (1) (a) of the Cyber Crime Act, The second offending took place at Q23 Circle – Bumayong, Lae between 18 May 2020 and 19 May 2020, in that you intentionally and without lawful excuse used an electronic system namely a Facebook messenger to transmit pornography pictures of yourself to a Facebook messenger user, namely Joshua Beekay, contrary to s 17 (1) (c) of the Cyber Crimes Act.
    

Sentencing Principles

14. Under the Cyber Crimes Act, such an offence attracts the maximum penalty of imprisonment of a term not exceeding 15 years or a fine of K25,000.00 or both. However, given that the maximum penalty is always reserved for the worst offences and every case is different therefore sentences very much depend on the circumstances of each case as established in the case authorities of Avia Aihi v the State [1982] PNGLR 92, Golu v the State [1979] PNGLR 635 and Ure Hane v the State [1984] PNGLR 105. This Court is therefore minded taking all these factors into consideration in determining an appropriate sentence.
    
15. The Court has considerable discretion whether to impose the maximum penalty under the Cyber Crime Act 2016 or impose a lesser sentence under Section 19 of the Criminal Code.
    
16. Section 19 of the Criminal Code provides among others, the following penalty that can be imposed: a shorter term may be imposed [subsection (1)(a)], a fine not exceeding K2,000.00 in addition to, or instead of, imprisonment may be imposed [subsection (1)(b)], a good behavior bond in addition to, or instead of, imprisonment may be imposed [subsection (1)(d)], the offender can be discharged and the sentence postponed [subsection (1)(f)] or a part of or all of the sentence can be suspended subject to conditions [subsection (6)]: see State v Aru [2016] PGNC 424; N6917 (14 March 2016).
    
17. Several documents were relied upon by the State in their submission on sentence. These documents include the oral statements of witnesses and the Police Record of Interview which included your own confessional statement as evidence to corroborate the charge of producing and distributing pornography contrary to s 17 (1) (a) and (c) of the Cyber Crimes Act. Furthermore, you have by your own admission pleaded guilty to the charge.
    
18. I am also informed by Counsel for the State that this is the first time that a case involving the production and distributing pornography using an electronic system or device under s 17 (1) (a) and (c) of the Cyber Crimes Act has come before the Court.
    
19. Therefore, there is no existing case law in which the Court would be guided by. Thus, in considering what would be an appropriate penalty to impose on you, I do firstly, take note that in passing the law on the Cyber Crimes Act on producing and distributing pornography materials, the Papua New Guinea (PNG) Parliament intended to make producing and distributing pornography, an offence.
    
20. Hence, any person and corporate body who intentionally and without lawful excuse or justification, or in excess of a lawful excuse uses an electronic system or devise to produce pornography for the purpose of its distribution; or distribute or transmit pornography to another person or the public; is guilty of a crime.
    
21. Parliament also prescribes a penalty for such offending, in regard to a person, the penalty in this case being a fine K25,000.00 or imprisonment for a term not exceeding 15 years or both. For a corporate, the penalty is a fine not exceeding K100,000.00.
    
22. Similarly, Parliament also has authorized the Court through the Cyber Crimes Act to impose such penalty upon sufficient evidence being called and upon being satisfied that such evidence warrants the imposition of the maximum penalty prescribed under s 17 (1) (a) and (c) of the Cyber Crimes Act.
    
23. I note however, that s 19 of the Criminal Code is still available to the Court to impose a lesser penalty.

Elements of the Offence - s 17 (1) (a) & (c) Cyber Crimes Act 2016

24. You are here before the Court because on 23^rd of March 2023 you admitted to not only producing pornography materials but also transmitting the pornography materials to another person on Facebook Messenger, namely Joshua Beekay. The alleged offending occurred between 1 January 2019 and 31 January 2019 at Kiapura Estate, West New Britain Province where you intentionally and without lawful excuse use a Huawei A10 touch screen mobile phone to produce six (6) pornography pictures of yourself, contrary to s 17 (1) (a) of the Cyber Crime Act, The second offending took place at Q23 Circle – Bumayong, Lae between 18 May 2020 and 19 May 2020, you prisoner intentionally and without lawful excuse used an electronic system namely a Facebook messenger to transmit pornography pictures of yourself to a Facebook messenger user, namely Joshua Beekay, contrary to s 17 (1) (c) of the Cyber Crimes Act.
    
25. The maximum penalty provision under s 17 (1) (a) and (c) of the Cyber Act, is a term of imprisonment not exceeding 15 years or fine not exceeding K25, 000.00 or both is available to this Court.
    
26. Having outlined the prescribed penalties above, I must point out that the task of sentencing is a difficult one for a judge especially in dealing with the life of a person in conflict with the law. Whilst I note that a law such as the Cyber Crimes Act sets out the maximum penalty for an offence, in this case, the maximum penalty is a term of imprisonment not exceeding 15 years or a fine not exceeding K25,000.00 or both as stated above.
    
27. The Court also has a considerable discretion whether to impose the maximum penalty by virtue of Section 19 of the Criminal Code.
    
28. Further, in considering an appropriate sentence the general principle is that the court should impose for a particular crime, the starting point must be a consideration of the penalty prescribed by the relevant statutory provision. Thus, the starting point of sentence is 15 years subject to s 19 of the Criminal Code Act.
    

Submission for the Defence

29. Mr. Boku in his submission on your behalf submitted that since you have pleaded guilty to the offence of two counts of producing and distributing pornography pursuant to Section 17 (1) (a) and (c) of the Cyber Crime Act 2016 (Cyber Crimes Act) and convicted for that offence after pleading guilty at the early stage of the proceedings, this early plea calls for leniency when the Court determines penalty.
    
30. Further, he also submits that the offence you committed came about under the existence of de facto provocation. In that both you and the complainant, your husband were not in a good relationship. The circumstances of de facto provocation in that you say that your husband was having affairs with another woman, so you left the marital home, and this led you to do what you did. However, your husband reported the matter to the police after finding out what was happening upon your return to the marital home.
    
31. However, you now say that your family circumstances have changed, and that you and your husband have forgiven each other and were living under one roof and providing for each other prior to your detention, at CIS, Buimo. I also note that your husband and children do need you now.
    
32. Regarding what is an appropriate penalty to be imposed, Mr Boku has referred this Court to the General Sentencing Principles established in the cases of Goli Golu v. The State (1979) PNGLR 653, where the Court stated that sentencing with the maximum penalty is only reserved for the worst category offences under consideration; and the case of Thress Kumbamong v The State (2008) SC1017, where it established that the Courts have unfettered sentencing discretion. Courts are not necessarily bound by the Supreme Court tariffs when considering sentences.
    
33. In addition, the Court was also referred to the case of The Acting Public Prosecutor v Auna & Ors (1980) PNGLR 510, where the Court stated that there are four purposes in a criminal justice serves include deterrence, separation, rehabilitation, and retribution for offenders.
    
34. Furthermore, in the case of Saperus Yalibakut v The State (2006) SC890, the Court stated that the offender must be given the benefit of any reasonable doubt and if there are contentious facts in which there is no agreement the Court should act on the version of the facts which, within the bounds of possibility, is most favourable to the accused.
    
35. Mr. Boku submitted that the Court has established sentencing guidelines which should assist this Court determine the appropriate penalty to be imposed on the prisoner. In this regard, he referred to the case of The State v Suma [2012] PGNC 27; N4622 (20 February 2012), a case decided in Mt. Hagen by his honour, Makail, J. In that case, it also relates to taking pornographic pictures by the offender and his accomplice. The offender was a student studying at the University of Goroka in 2009. The pornographic material involved penial, anal, and oral sex between the offender and his female girlfriend on several occasions. Their acts were captured in a digital camera and exposed and widely circulated to the wider public within the University and outside by unknown persons. It was expressed that it was the worst type of offence, but the production of the pornographic pictures was for sexual gratification and pleasure. However, the Court viewed that the phonographic pictures were produced for personal consumption but got exposed unintentionally. The Court also noted that there were no case guidelines to follow in sentencing but to exercise judicial discretion, guided by Section 19 of the Criminal Code Act, as this offence is not punishable by death. In saying so, the Court imposed a sentence in the following:
    

“a) On the charge of production and distribution of pornographic material, under s.228(1)(d) of the Criminal Code, a sentence of 1 year was imposed.

2. On the charge of SP of a person against the order of nature under s.21 (1) of the CCA, the prisoner was sentenced to 6 months imprisonment with hard labour.
   

100. The offence of producing and distributing pornographic material under s.228(1)(d) the offence was committed simultaneously so applying the single transaction rule, the sentence of I years was to be served concurrently”.
     

36. Mr. Boku also submits that the case of The State v Suma (supra) compares almost equally to your case although the circumstances are different. In the Suma case (above) that case encompassed two natural matured persons of the opposite sex producing pornography with consent. Your case on the other hand, involves you (the offender) yourself producing and distributing nude pictures of your sexual parts, breasts, and sexual expressions of the face. In the present matter, whilst it is accepted that the use of tile pornographic pictures was for your personal consumption like in the above matter, it got exposed to the police and not the public by your husband. It only came to light when the nude pictures were reproduced by the police for the purposes of their investigations and this evidence are now before the Court making it public. In that, it was not exposed by you (the prisoner) but other than a third party, the husband out of de facto provocation.
    
37. Further, you (the prisoner) did what you did out of de facto provocation. However, you now say that you and your husband have forgiven each other, reconciled and living together happily prior to your detention.
    
38. Given the above factors, Mr Boku submits that this Honourable Court is not bound to follow any sets of rules in sentencing matters as applied in Thress Kumbamong v The State (supra). Hence, this Court is safely guided by that principle as this may be one of the first matters to be considered by this Court under the new Cyber Crime Act.
    
39. Therefore, the Honourable Court is invited to consider that although Section 17(1) (a) & (b) of the Cyber Crime Act 2016 provides for the maximum sentence of 15 years or a K25,000.00 fine or both, he submits this offence does not fall under the worst offence category so the maximum penalty should only be reserved for the worst category offences as expressed in Golu Goli v. The State (supra) punishable by death.
    
40. Mr. Boku further emphasizes that Courts have wider discretionary powers in sentencing and not bound by the strict guidelines of the sentencing tariffs. The facts clearly show that the production of her nude pictures was for personal consumption but got published by the Husband out of de facto provocation. Hence, the prisoner should be given the benefit of any reasonable doubt on these facts if disagreed, this Court is bound to act on the version of the facts which, within the bounds of possibility, is most favourable to the Prisoner for her early guilty plea as applied in Saperus Yalibakut v The State (supra). The Court is also asked to note Section 19 of the Criminal Code Act which provides for the considerations to reduce sentencing of offenders especially Subsection (d) that provides for good behaviour bond as the offence is not put that into perspective, the Court can increase, reduce, and suspend part or whole sentence with or without conditions. In the present matter, the Prisoner produced nude pictures of herself and was communicating with one other until the Prisoner's husband learned about it and exposed it to police. That was when the nude pictures came to public especially the police to assist in their investigations.
    
41. Therefore, the sentencing considerations in State v Sumo (supra) may be followed though the circumstances are different. The circumstances under which Sumo was sentenced were much more serious than the present matter. Sentences in Suma were lower as the prisoner pleaded guilty for the charges under the Criminal Code Act and not the recent Cyber Crime Act 2016.
    
42. Matters which Mr. Boku submitted that should be taken into consideration in determining sentence are mitigating factors which amongst others include the following:
    
    • The Prisoner is a first-time young offender.
    • She has two young children.
    • She did what she did out of de facto provocation.
    • The husband/complainant had forgiven her, and they have reconciled.
    • They are living happily and are concentrating on their welfare and their two children.
    • She is also furthering her education.
    • She expressed genuine remorse and living a changed life.
      
43. In his final submission, Mr. Boku submits that the offence does not fall under the worst category, and he asks for a sentence of two years as you produced your nude pictures for personal consumption as applied in the case of Suma (supra) though that matter was prosecuted under the Criminal Code Act unlike the present matter, under the Cyber Crime Act.
    
44. In addition, he asked this Court to note the case of The Acting Public Prosecutor, v. Uname Aumane, Aluma Boku, Luku Wapulae and Piope Kone [1980] P.N.G.L.R. 510, which set out four purposes of criminal justice in our jurisdiction and other jurisdictions which have developed theories on sentencing. These theories guide a judge in evaluating the punishment that he or she ought to impose. These theories are conveniently referred to as ‘deterrence, separation, rehabilitation, and retribution’. Mr. Boku submits that this Court consider rehabilitation for the offender as she has already been forgiven by her husband and their family situation is improving and progressing well at home with her husband, children, and family at large. In so saying, Mr. Boku submits that the court exercise discretion under Section 19 (I) (d) of the Criminal Code Act and wholly suspend the two years sentence with good behaviour bond and have her bail monies refunded.
    
45. Mr Boku also refer this Court to a copy of a letter dated 16 July 2021 in which the complainant had requested the discontinuation of the matter and adopt it in his submission to assist the Court and consider the 2 years wholly suspended sentence.
    

Submission for the State

46. Ms Joseph for the State in her submission in response submitted that the Court in considering the appropriate sentence the court should impose for a particular crime, the starting point must be a consideration of the penalty prescribed by the relevant statutory provision. This is the general principle.
    
47. Further, this Court has a considerable discretion whether to impose the maximum penalty by virtue of Section 19 of the Criminal Code.
    
48. The offences which are of a sexual nature challenge public order and standards of decency. Hence, Parliament have enacted law which are in place to protect people from exploitation, and more specifically in the case of pornography, to protect the young and public users of internet services. Thus, when such crimes are committed, this is justification for substantial terms of imprisonment. Overall, the main purposes for imposing a substantial term of imprisonment are to punish the prisoner to deter her from committing further similar crimes but equally importantly, to deter others from committing the same offence.
    
49. It is equally important to note that the principle of general deterrence carries more weight when the offence is prevalent. This type of offending is unfortunately becoming more common within our communities, most of it unreported. It encourages men in our communities and societies to view such obscene materials and in turn, this encourages them to abuse young and innocent women and children within our communities and societies. It is for this reason that our Parliament passed the Cyber Crime Act in 2016, to ensure the protection of members of our community and society and to also increase the penalty provisions for such offending to a maximum of 15 years imprisonment.
    

Aggravating circumstances

50. Ms Joseph in her submission on sentence submitted that there are several aggravating factors which do not favour the prisoner, and these are set out below:
    

(A) Gross abuse of acceptable standards of moral decency

Firstly, there is gross abuse of acceptable standard of moral decency and the Court is referred to the case of State v Suma (2012) PGNC 27; N4622 (also relied upon by the Defence), In that case, the Court considered that the offence of producing pornography to be an aggravating circumstance and stated, " .... what has been once a sacred part of a man and woman's bodies 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”. In that case, the prisoner was indicted on the previous provision of the Criminal Code which carried a maximum of two years imprisonment. The prisoner was sentenced to 1 year in hard labour with no suspension of the head sentence.

In contrast to this present case, the charges were laid under the Cyber Crimes Act and the State in their submission, submitted that the prisoner was a willing participant to the crime she committed. She took twelve pictures of her sexual parts namely her breast and vagina on different positions and transmitted those pictures via Facebook messenger. She grinned and posed in those obscene pictures and thought she would not be caught. She did all this for her sexual pleasure and gratification.

(B) Breach of trust

Secondly, it is a well-established principle in law that people who occupy positions of trust are in those positions on the condition that they maintain that trust. Our communities depend on adults in the community to be responsible and law-abiding citizens, in the prisoner's case a wife and a mother.

The prisoner is married and has two young children, a girl aged seven years old, and a boy aged three years old. The alleged offending cannot be equated with the case of State v Suma (supra), the same could be said for the prisoner. The prisoner, on a personal and family level, should have been a role model to her children, especially, her daughter who she now claims need her to be home to care for her and her son. She failed miserably in that role. While it has been accepted that her husband may have forgiven her, it cannot be overlooked or ignored that what she had done was in fact, a case of indecent exposure of what was created by God to be sacred has now been grossly abuse just so she could regain the mere attention of her husband.

The prisoner in her pre-sentence report alleged that she did all that out of frustration because her husband was having an affair, an allegation which is unfounded as there is no evidence to that. What she had done actually is that she breached that trust between a husband-and-wife relationship. In that she had engaged in an activity which was not only unlawful but also disrespectful to the sacredness of marriage between a married couple. She literally exposed by taking pictures of her sexual parts and sending it to random man on Facebook Messenger, irrespective of whether it was for personal use or publication to the public at large. Her actions make a mockery of her decision to now ask for leniency because of her family.

It is also important to point out that she was not forced to engage in the production and distributing of pornography pictures of your private parts. This activity was one in which she was a willing participant. There was no evidence of physical and or mental threats put on her to participate in taking picture of her private parts in the first instance. Besides, there is no evidence that these pictures were taken for a medical purpose. Given these factors, no exception should be allowed.

(C) Duration of offending and degree of premeditation

Thirdly, the offending before the Court is not a spur of the moment decision. She had been and was a willing participant in the production and distributing of pornography material. It was not a one-off activity which was produced and distributed on impulse. In fact, there is evidence that she had chosen willingly to repeat and engage in producing and transmitting her pornographic pictures from 2019 to 2020. The production and distribution of pornography material continued for over a period of one (1) year until it was discovered. This length of time of activity and the willingness to participate in it must be viewed as an aggravating factor against her. It is an ongoing behaviour for over a year. The degree of premeditation is also too long to say that it was done in frustration of any alleged infidelity on the part of her husband.

(D) No genuine expression of remorse

It must be pointed that during the administration of her allocatus, she apologized to the Court for what she did. She said that there was a reason why she committed the offence. She said that her life was under threat because Joshua Beekay sent his agents to have sex with you. As to whether this assertion is real, it is left as it is. A mere assertion. This is quite contrary as during her pre-sentence interview, where she told the writer that she did what she did because her husband was having an affair, she felt devastated because she was young when her marriage was arranged, he did not support her financially to complete her education thus the frustration escalated, and she wanted her husband to feel the same pain she did. It is far more likely that she was motivated to commit this offence for the sole purpose of her own sexual gratification.

The prisoner does not appear to have any insight into her behaviour and takes no personal responsibility for her actions. She puts the blame on others and appears to have no genuine remorse, perhaps only feeling sorry now because she has been caught and is now before the Court.

51. In conclusion, the State submit that the primary consideration for the sentencing Court is to:
    

• impose punishment on the prisoner, taking into account what she has done.

• consider the requirements of personal and general deterrence; and

• protect the public, especially the children from such gross display of obscene materials on the internet.

52. Consequently, the State submits that a sentence of seven (7) years imprisonment in hard labour is an appropriate sentence, to be imposed taking into account matters put in mitigation being a plea of guilty and first-time offender. Further and in addition, the matters put before the Court in aggravation are significant including gross abuse of acceptable standards of moral decency, breach of trust, the degree of premeditation and lack of genuine expression of remorse both during allocutus and pre-sentence report interview. Hence, a custodial sentence is warranted for both personal and general deterrence.

Sentencing Guidelines

53. This Court’s role in dealing with offenders who breached such laws are to give effect to the intentions of our Legislators (Parliament) and that is to impose appropriate sentences on offenders who breach the laws such as the Cyber Crimes Act and must be punished for their doing wrong.
    
54. It is equally important for offenders such as yourself to realize that such wrongs will not go unpunished and where warranted offenders are incarcerated to prevent them re-offending. At the same time and most importantly, the imposition of tougher punishment is seen as a deterrent to others so that you do not commit the same offence or (any other offence) that you have committed.
    
55. I am also grateful to both Counsels who have assisted this Court in citing relevant cases authorities in order to determine penalty.
    

Consideration of the law on penalty

56. To determine penalty, I have to firstly determine whether your case is such a case that warrants the imposition of the maximum penalty. This means that I would have to determine whether the facts of this case are so serious that the maximum penalty must be imposed, then I may take that into consideration and impose the maximum penalty.
    
57. On the other hand, if the facts and circumstances of this case are not so serious, then this Court may consider imposing a sentence below the maximum penalty. Having stated all of the above, this Court also has a very wide discretion to impose a sentence below the maximum penalty under Section 19 of the Code based on proper judicial principles.
    
58. For your case, I have had the opportunity to peruse the report prepared by the CBC Officer which had offered some insight into your family situation. Here, I note that you had entered into an arranged marriage by your parents while young. I do appreciate that such an arrangement may have forced into a relationship that you personally may have been in agreement with. You were frustrated about these issues, and this was made worst by the fact that you now say that your husband was also having an affair with another woman. Due to the actions of your husband, this led you to conduct yourself in the way that has now landed you in trouble.
    
59. I find however that these allegations are also new and differs from the statement you made in your allocutus, so I am a little concerned as to your demeanour. That is whether you are genuinely remorseful for your conduct in producing and distributing pornography materials.

Consideration of the law, sentencing principles and guidelines

60. In any case, regarding sentencing, I am minded to be guided by the growing body of case law that asserts and protects the rights and interest of persons who come into conflict with the law and who have asked the Court to be lenient in terms of penalty. Whilst I note that your case may be a first of its kind under the Cyber Crimes Act, it does not mean that I as the trial judge should look outside of the principles or theories of sentencing to determine penalty. The principles of sentencing separation, rehabilitation and retribution still remain the same: see The Acting Public Prosecutor v Uname Aumane & Ors [1980] PNGLR 510 at [357] per Kapi J.
    
61. Of the four (4) principles of sentencing, I note that deterrence is used more frequently because the concept of deterrence is to discourage the prisoner from repeating the same offence and to also serve as a promotion of peace, good order, and safety with the community. The other desired effect of deterrence is that it is seen as a warning to other likeminded offenders to cause them not to engage in such criminal activity because if they do than they will be dealt with by the law and punished accordingly: The Acting Public Prosecutor v Uname Aumane & Ors (supra)
    
62. Separation is another principle of sentencing, its purpose being to separate the criminal from society or community particularly where the crime involves grave risk to the personal peace and safety of members of the community, such as murder, robbery, rape and etc. The emphasis on separation is placed on the protection of the community rather than the offender: The Acting Public Prosecutor v Uname Aumane & Ors (supra)
    
63. The next principle of sentencing is that of rehabilitation, the purpose of which is to rehabilitate the offender. Here the emphasis is placed on the offender receiving correctional treatment so that when the prison term is completed, the prisoner returns and becomes a useful member to his or her community, in that he or she will obey the law and will not disobey the law. In that we may release the offenders into the community but subject to them complying with certain probationary orders and terms whilst under the Community Based Corrections Officers’ (CBC) supervision: The Acting Public Prosecutor v Uname Aumane & Ors (supra)
    
64. The final principle of sentencing is retribution. In this regard, the theory of such sentencing is referred to as “vengeance” which conveys the message that a person who commits a crime must “pay” for the crime, or “deserves” it. This is a concept that is very well known and accepted within our cultures. It is not foreign. In our culture, it is normally referred to as “payback”. Hence, within each and every culture or society in PNG, it is well known and accepted that anyone who breaks the rules and custom of a community or village deserves to be punished: The Acting Public Prosecutor v Uname Aumane & Ors (supra)
    

Deliberations on what principle of sentencing to apply to your case

65. I am now tasked to deliberate and evaluate which of the above principles or theories of sentencing should apply to your case. It is a difficult task but I will be guided by the sentencing guidelines and relevant case authorities where appropriate.
    

Determination of sentencing criteria

66. In the matter before the Court, you, (the prisoner) have admitted that on the 23"' of March 2023 to not only producing pornography materials but also transmitting the pornography materials to another person on Facebook namely Joshua Beekay, and accordingly, by reference to Section 17 penalty provision (a), the maximum term of imprisonment not exceeding 15 years or fine not exceeding K25, 000.00 is available to this Court.
    
67. In my consideration of determining what is an appropriate sentence to impose, I have given regard to the submissions of both Counsels; Ms Joseph for the State and Mr. Boku for the prisoner. I also accept that you are a young woman and mother of two young children. I also take note of your plea for the welfare of your young children, should a term of imprisonment be imposed upon you. Furthermore, I also note your explanation for offending being that she was threatened by Joshua Beekay, the Facebook Messenger, the recipient of the nude pictures.
    
68. In regard to the family circumstances, I reiterate the sentiments expressed by the Courts which have consistently stated that the issue of the care of children or circumstances of family situations are matters which are within the control of the prisoner. In your case, you should have considered all these matters prior to the offending not after the offending. It is a bit too late to raise it now. A case on point is that of Tamara Player Tomscoll v The State [2012] SC1208 (although a bail application), the principle is relevant to sentence. In that case, the Court stated at [44- 47]:

“44. In relation to the plea for Tamara's own and that of her children and her families' needs, we do sympathize with her, her children and family. However, these can have no consequence on the sentence she should receive as an offender. Indeed, numerous cases say that an offender should think of the possible consequences that could flow against themselves and their family, friends and or business on account of their choosing to commit a crime before committing it. After the commission of an offence, it is a little too late to plead personal or family needs.

45. One of the earlier decision of the courts on this point in our country is the decision by Amet J (as he then was) in The State v Oa Seseka [20] That was a case of fraud. There His Honour said:

"I said before and I repeat that all of these factors and matters ought always to be in the minds of fathers and all offenders when they are tempted and begin offending in this way. Educated, intelligent adults who knowingly and yet deliberately over a long period of time, such as 17 months, embark upon a life of fraud have no excuse whatsoever. They bear full responsibility for the suffering occasioned to their families as a result of their actions."

46. Later in 2000, the Supreme Court consisting of the late Jalina, Kirriwom and Kandakasi JJ., in the matter of Allan Peter Utieng v. The State,[21] re-echoed this principle by saying an offender should consider his background first before committing any offence. Implicit in that is the fact that, it is a little too late to talk about an offender's personal background including the needs of his family and concerns once he is proven guilty according to law. His background and concerns should have little or no weight against the need to impose a sentence or punishment that best befits an offence he has committed and the particular circumstances in which the offence was committed.
47. This position has been and is consistently applied in our Courts when offenders plead their personal needs including medical needs and that of their respective families. The Supreme Court's decision in Thress Kumbamong v. The State [22] is one of the latest Supreme Court decisions on point. That decision reaffirmed this position in these terms:

"It is now settled law that, an offender should consider his or her personal and family backgrounds and needs before committing an offence. It follows therefore that, once a person is found guilty of committing an offence, it is a little too late for the offenders to raise their personal and family backgrounds and needs with a view to getting a more lenient sentence. This was made clear by this Court's decision in Allan Peter Utieng v. The State...which has been followed in a long list of National Court judgments including the recent decision in The State v. Danny Makao...

What this means is that the medical conditions or other personal and family backgrounds and needs of an offender should not form any foundation for a lenient sentence unless, it is a case of life and death, and no arrangements can be made administratively by the Correction Services for a prisoner with a medical condition to access and receive appropriate medical attention and treatment."

43. Considering all of the above, I now turn to my deliberation of what factors or matters operate for and against you in terms of penalty. In the administration of allocutus, you told the Court that you were threatened by Joshua Beekay and that he will send his people to attack you if she did not comply with transmitting the pictures of yourself, so you shared these pictures with him to avoid, his threats. You plead for leniency.

69. Although, I note the submission of the defence counsel on penalty, that the offence does not fall under the worst category and ask for a sentence of two years as you produced your nude pictures for personal consumption as applied in the case of The State v Suma (supra) though that matter was prosecuted under the Criminal Code Act unlike the present matter, which is under the Cyber Crime Act.
    
70. It was also submitted on your behalf that this Court consider the principles of rehabilitation as stated in the case of The Acting Public Prosecutor, v. Uname Aumane, Aluma Boku, Luku Wapulae and Piope Kone (supra) which provides for the four purposes of criminal justice and consider rehabilitation as that you have expressed remorse for your actions and wish to live a happy life with your husband and children. In addition, it was also submitted to that this Court impose two-year sentence (wholly suspended) on terms such as good behaviour bond as per Section 19 (I) (d) of the Criminal Code Act and refund of your bail monies. Furthermore, you have also asked this Court to refer to the complainant's letter of discontinuation of the matter dated 16/07/2021 which your lawyer Mr. Boku has attached to his submission on penalty.
    
71. Whilst I note that you (the prisoner) view such nude pictures to be of a personal nature and was for personal consumption, I however, reject your views. I find such offending is of a serious nature, that is why the Cyber Crimes Act was enacted. Parliament views that such production and distribution of pornography material to be a serious offence and thus made it unlawful. In your case, the act of engaging in producing and transmitting her pornographic pictures span from the 2019 to 2020, a period of almost a year. The offending before the Court is not a spur of the moment decision, or not simply given way to impulse on one occasion. In your case, you have chosen repeatedly to engage in producing and transmitting your pornographic pictures over a period of time until when you were discovered, and a report made to the police.
    
72. I also find that such offence is of a serious nature, and because of this, our Nation’s Parliament had proceeded to enact the Cyber Crime Act 2016 to legislate against such offending. Our National Parliament considered that producing and transmitting pornographic material is a very serious matter and therefore has enacted the Cyber Crime Act 2016 to make it unlawful. It is therefore the Court’s role to give effect to the laws passed by Parliament.
    
73. You are married with two young children, a girl aged seven years old, and a boy aged three years old. This case can be distinguished from the case of State v Suma (supra) as the offence was laid under the Criminal Code and the penalty scheme was also different. Further, the circumstances of the case were also different.
    
74. In so saying, I accept and adopt the submission of the State that the offences which are of a sexual nature challenge public order and standards of decency which Parliament has thus enacted laws which are in place to protect people from exploitation, and more specifically in cases of pornography, to protect the young and public users of internet services. Thus, when such crimes are committed there is justification for substantial terms of imprisonment. Overall, the main purposes for imposing a substantial term of imprisonment are to punish the offender to deter him or her from committing further similar acts or crimes but equally importantly to deter others from committing the same offence.
    
75. The prisoner on a personal and family level, should have been a role model to her children, especially, her daughter. She has failed miserably. While it has been accepted that her husband may have forgiven her, it cannot be overlooked or ignored that what she had done was in fact, a case of indecent exposure of what was created by God to be sacred has now been grossly abuse just so she could regain the mere attention of her husband. The prisoner in her pre-sentence report alleged that she did all that out of frustration because her husband was having an affair when in fact there is no evidence to that. The only evidence in Court is that she breached her husband's trust when she went behind his back, not to mention when he was putting in days’ work to provide for her, she was taking pictures of her sexual parts and sending it to a random man on Facebook Messenger to transmit her nude pictures of her private sexual parts, including her breast. It is a mockery for her now to ask for leniency because of her family.
    
76. Besides, with an increase in domestic violence, such actions of a woman or female opting to take pictures of their private parts in the first instance, should be discouraged. In this case, the prisoner was a willing participant to the crime she committed. She took twelve pictures of her sexual parts namely her breast and vagina on different positions and transmitted those pictures via Facebook messenger. She grinned and posed in those obscene pictures, which she did all this for her sexual pleasure and gratification.
    
77. The Cyber Crimes Act makes it a crime to produce pornographic material, and to publish it for whatever purpose unless it is based on medical grounds and or medical purposes. Hence, the production of these nude pictures is an offence, and the penalties are prescribed under the Cyber Crimes Act 2016.
    
78. In so saying, I must also point out this Court has discretionary powers under s 19 of the Criminal Code to impose a lesser penalty. Hence, the issue now is what is an appropriate penalty to impose on the prisoner?
    
79. Under s 17 of the Cyber Crime Act. Essentially, s 17 of the Cyber Crime Act distinguishes between:
    
    • The production, offering or making available, distributing, and procuring or obtaining access to pornography in the case of a natural person, a fine not exceeding K25, 000.00 or imprisonment for a term not exceeding 15 years, or both; and
      
    • The production, offering or making available, distributing, and procuring or obtaining access to pornography in the case of a body corporate, a fine not exceeding K100, 000.00.
      
80. Here, the Court is concerned about the production, offering, or making available, distributing, and procuring or obtaining access to pornography in the case of a natural person. The penalty here is either a fine not exceeding K25, 000.00 or imprisonment for a term not exceeding 15 years, or both.
    
81. The Act does not distinguish between the production, offering, or making available, distributing, and procuring or obtaining access to pornography for private or personal consumption. It essentially prescribes against such production, offering or making available, distributing, or obtaining access to pornography. The law makes the production, offering or making available, distributing, or obtaining access to pornography unlawful.
    
82. Therefore, I reject the submission of counsel for the defence that the production, offering, or making available, distributing, and procuring or obtaining access to pornography for private or personal consumption.
    
83. In my view the prisoner played a very serious part which is adverse to the fight against the growing crime problem in the country. It is the aim of Parliament to counter this rate by making it an offence to produce and transmit pornographic material which will only lead to the increase of such crime.
    
84. Maintaining law and order is everyone's duty and responsibility and not just the police. All thinking and reasonable members of the community, who respect law and order and appreciate the fight against crime, need no encouragement or urging from anybody. What the prisoner did in this case is indeed a serious affront to law enforcement, peace and good order which is badly needed in our country now.
    
85. The production and distribution of pornography occurred within the prisoner’s home at different locations and dates. Other matters which are also taken into consideration when determining penalty include the Pre-Sentence Report and views of the community where you (the prisoner) come from including the overall justice administration relating to sentencing principles and its objective in making our society safe and secure in which every man, woman and child is free to live and not be afraid.
    
86. Equally, important to the consideration of severity of sentence is the recognition that sexual offences are on the increase. More so, such offences occurred in family settings or situations where offenders in such cases stood in positions of trust, authority, and dependency. In such case as a family setting with young children. In order to address these problems, our law makers had introduced Laws by enacting the Cyber Crimes Act 2016 purposely to deal with such offences. This law also has prescribed tougher penalties for these offences and the circumstances of aggravation.
    
87. Whilst I note that both counsels have submitted for penalty to be imposed at the discretion of the Court, I am of the view that a head sentence ranging between 2 years as submitted by Mr. Boku and 7 years as submitted by Ms Joseph would be a starting point. In that regard, I in the exercise of discretion fix the head sentence at 5 years imprisonment to be imposed on the prisoner with deductions downwards where appropriate, given the early guilty plea.
    

Conclusion

88. In conclusion, I find that the crime of the production, offering, or making available, distributing, and procuring or obtaining access to pornography only gives encouragement, support, and vigour for criminals to engage in such crime. All kinds of offences are on the increase and therefore, it is the role of society to improve in its efforts to minimize the frequency and number of serious crimes such as pornography against people who encourage, and support the production and transmission of pornography, the penalty must be appropriate so as to have an effect of deterrence: The Acting Public Prosecutor v Aumane & Ors 1980) PNGLR 501. This will have the effect of stopping if not reducing the number of offences that are committed.
    
89. I also note that during the Pre-Sentence Report although favourable, does not provide any recommendation for probationary supervisory orders and or a non-custodial sentence.
    
90. Given the foregoing, I am minded to accept the submission of Counsel for the State that a head sentence of 5 years imprisonment be imposed. I deduct the pre-trial period of 1 year 13 days for the time that you have been held in custody pursuant to s 3(2), Criminal Justice (Sentences) Act which leaves a term of 3 years 11 months 17 days of sentence to serve.
    
91. By virtue of S.19 (a) (1) of the Criminal Code, 2 years of the balance of the sentence term of 3 years 11 months 17 days is suspended.
    
92. This leaves the balance of the sentence term of 1 year 11 months 17 days to be served in custody, at CIS, Buimo.
    

Order of the Court

59. Having convicted you, Wendy Moewe on two counts of producing and distributing pornography contrary to Section 17 (1) (a) and (c) of the Cyber Crime Act, 2016, you are now sentenced as follows:

Length of sentence imposed: 5 years.

Pre-sentence period deducted: 1 year 13 days.

Balance of term of sentence to be served: 3 years 11 months 17 days.

Amount of sentence suspended: 2 years.

Time to be served in custody: 1 year 11 months 17 days.

Sentenced accordingly.
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Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the offender