N11544

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

CR NO. 313 OF 2025

THE STATE

V

JOBBY GONIENG

WAIGANI: MIVIRI J
22 AUGUST, 2, 5 SEPTEMBER 2025

CRIMINAL LAW – PRACTICE AND PROCEDURE – Cybercrime Code Act 2016 – Section 17 – Pornography – Intentional & Without Lawful Excuse – Use of Electronic System – Sending Eight (8) Pornographic Videos To Complainant – Caught Lured on Belief Meeting With Complainant – Admission in Record Of Interview – Corroborated by Pornographic Videos on Mobile Phone Sending & Received – 38-year-old First Offender – Propensity of Offence Destabilizing life of Complainant – Communication According to Law – Mobile Phones Use According to Law – Protection of Married Life – 5 years Imprisonment IHL.

Facts
Accused called the complainant and tried to chat with her. Then he sent her eight (8) pornographic videos. He was caught when the complainant reported to police, and he was lured that she wanted to meet him at Inn. He admitted using his phone in sending the video which were seen on the mobile phones.

Held
Communication in accordance with Law.
Basic Unit of Society Family Protection.
38-year-old First-time Offender.
Guilty Plea.
Deterrent Sentence.
4 years IHL.
Remand period deducted.
Balance to be served in Jail.

Cases cited
Avia Aihi v The State (No 3) [1982] PNGLR 92
Simbe v The State [1994] PGSC 18; [1994] PNGLR 38 
State v Wari [2025] PGNC 210; N11337 
Mebil v The State [2004] PGSC 24; SC749 
Hindemba v The State [1998] PGSC 48; SC593 
Allan Peter Utieng v The State (2000) SCR 15 of 2000.
Yalibakut v State [2006] PGSC 27; SC890 
Public Prosecutor v Tardrew [1986] PNGLR 91

Counsel
S. Patatie & E. Kariko, for the State
I. Kaiap, for the defendant
		
SENTENCE

1.	MIVIRI J: This is the sentence of Jobby Gonieng of Silemana village, Finschhafen, Morobe Province who pleaded guilty to section 17 (1) (c) of the Cybercrime Code Act 2016.

2.	He was convicted on his guilty plea that at Port Moresby National Capital District on the 11th November 2024, he intentionally and without lawful excuse used an electronic device, a mobile phone to distribute or transmit pornography to another person, Ruth Anisa Mays contrary to section 17 (1) (c) of the Cybercrime Code Act 2016. 

3.	He made a random call to the complainant Ruth Anisa Mays on the 11th November 2024 around 9.20am from his phone number 76012229. She answered the call and enquired about his identification. But he went onto ask her where she was from and if she could chat with him, so she ended the call. The Accused then started calling the complainant via WhatsApp from phone number 74435078. He called her several times, the last time around 10.34pm. Following that he sent eight (8) pornographic videos to the complainant.

4.	On the 13th November 2024, with the advice of the police, the complainant communicated with the accused to meet up at Visitors Inn located at East Boroko and he agreed. On that same day the complainant went to Visitors Inn and when the Accused showed up, he was apprehended by the Police. They took him to Vision City Police Post where he admitted to sending the pornographic videos to the Complainant when questioned by Police. He was arrested charged under section 17 (1) (c) of the Cybercrime Code Act 2016.

5.	That section is in the following “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) or (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.
(2) It is a defence to a charge for an offence under Subsection (1)(b), (c) and (d) if the pornography was for a bona fide law enforcement purpose or for the benefit of the public.
(3) Whether the doing of an act referred to in Subsection (1) is for the benefit of the public, is a question of fact.

6.	The words of the section echo the intent of the legislature that it is a very serious offence to transmit pornography. This is evident in the penalty prescribed, a fine not exceeding K 25, 000.00 or imprisonment of not exceeding 15 years or both. That will be considered where the offence is the worst of its kind: Avia Aihi v The State (No 3) [1982] PNGLR 92. This is not the worst case and therefore will not warrant the maximum penalty upon the prisoner. But a determinate term of years will be visited his facts and circumstances Simbe v The State [1994] PNGLR 38. Fundamental is the consideration as to what evil seen by the Legislature for the prescription of the penalty in that manner. Transmission of pornography, here is at the heart of the matter. He sent eight pornographic videos to the complainant. She is a complete stranger not his wife, or mistress, or any other person who has sexual intimate relations with him. She is a mother of four children married minding her own life no offence to the prisoner. Liken to State v Wari [2025] PGNC 210; N11337 malicious defamatory publication alleging criminal conduct against a brother-in-law, this offence by its nature like that offence has a real tendency to torment into disarray the life of the complainant.

7.	Pornography is defined by the Webster’s dictionary as, “the depiction of erotic behaviour (as in pictures or writing) intended to cause sexual excitement.” In my view this is the reason underlying the transmission of the pornographic videos to the complainant. He intended sexual relationship with her. When a man imposes upon another person his urges without regard for that person. It is a very serious offence. Particularly considering that she is a married woman. And what he was setting out to do was enticing her to adultery. Because what he intended was a violation of the rights of the complainant to enjoy and live her life as she pleased. In that sense it is a very serious offence. It must draw time in jail. Analogous is rape, sexual penetration of another person without the consent of that person. It is unto itself serious because of that fact. The privacy of another is invaded without respect for that other person. It is the same here, Prisoner showed no respect in the way he sent her those videos. I have viewed them and indeed they are pornographic. He was transmitting to a married woman enticing her into a sexual relationship that she did not want part of. It would have easily and did have the very real propensity to ruin her married life with her four children. He cannot act in that manner and expect to be let off without sanction. It goes without saying that the penalty must fit the crime.

8.	Women and girls are as much as human beings as are men and boys. All are under the sphere of the Constitution and the law. All must be protected. Men cannot have the liberty to do as they please against our women and girls. Just as a victim of sexual abuse is protected in the sentence passed because of the level of violence Mebil v The State [2004] PGSC 24; SC749. It does not follow that sentence must be by a tariff and range only. That in my view would be erroneous, because as much as it is, the facts circumstances play significant in determining. For instance, the seriousness of the offence Hindemba v The State [1998] PGSC 48; SC593. And it could be increased if there is disparity with the facts. Here that is what is due the prisoner. Sentence that fits his circumstances and the facts that have come out here, apparent and identifiable. Discount will be accorded because he is a first offender and has pleaded guilty. He must be treated by his facts for a proportionate sentence accordingly.

9.	There is nothing in his favour in the presentence report filed. It does not recommend probation. He does not have the means to pay compensation. He has no permanent fixed place of abode. But has two very young children. They will suffer no fault of theirs because of the sentence that will be imposed him. It always upon a prisoner to consider their personal circumstances before venturing into crime. Because such will not be a bar to the sentence in law due: Allan Peter Utieng v The State (2000) SCR 15 of 2000. He entered an unequivocal plea that he did what the State alleged against him. The evidence that was tendered confirmed in all material particulars the offence. It was unlawful intended and concluded by that evidence spelling out the role and intent of the prisoner. He has very strong incriminating admissions in the record of interview with Police on the 20th November 2024. Which were corroborated by the pornography videos that had been taken from the telephone number 74435078 of the prisoner. Conversely spelt out in the phone of the complainant receiving. So, he really did not have any way in law to get out from the ambit of section 17 (1) (c) of the Cybercrime Code Act other than to plea as he did. The evidence was overwhelming of his conduct. And he will be sentenced based: Yalibakut v State [2006] PGSC 27; SC890. 

10.	He is originally from Silemana village, Finschhafen, Morobe Province, he is now 39 years old, but 38 at the time of the commission of the offence. A first offender married with two children aged 4 years and 9 months old at the time of the offence. He was employed with TSI Security as a static guard. Educated to Secondary level at Hagen Park he was living with his wife and two children at a rented house in nine mile. He was living a good life with his family. In the commission of the offence, he chose his own pleasure above that of his wife and two children. He paid no heed that he was a security guard employed. Whose primary duty was to ensure protection of property and life of others contracted. He defied his role as a father and husband. He defied further as a security guard. He violated another’s life.

11.	He sought to threaten the stability of the life and marriage of the complainant, a married woman of 15 years with her husband, four (4) children from that union. His actions had the propensity to bring the marriage and the union of the complainant with her husband into ruin. Marriage is a sacred union of a man and woman built on trust and respect endured over time. In the case of the complainant 15 years with four children as a result. He had two very young children because of that relationship. He accorded no respect to them with their mother his wife for the way he committed this offence. He broke that trust and respect of that union selfishly for his own pleasure. The two children will suffer no cause out of their innocent hands for the demise. No person should treat their own families in this way. 

12.	Mobile phones are discrete, and comparably very powerful instrument of communication. It is everywhere in the hands of all today. It is captivating has become the centre stage of life everywhere. As seen here the dissemination, distribution, transmission of information is really at the fingertips of the person who has possession or owns the mobile. If used lawfully it will bring rewards for the life of a person. But if used as here will destroy and violate the life of another human being no fault of theirs. It has the propensity to be used in all manner of the life of a human being. Mobile phones provide instant communication, internet access, information retrieval, and entertainment. They enable personal and professional tasks through apps for banking, shopping, navigation, education, while the cameras capture photos videos. Users benefit from connectivity, increased productivity, access to a vast amount of information. Their use must assist not torment and injure as here. This Court must sound that the use of the mobile phone is not at liberty for the commission of crime and unlawful activity as here. The law must sanction illegal unlawful use and deter would be persons in like mind as the prisoner. The sentence here will reflect.

13.	 What was intended here by the prisoner had the propensity to develop into a life of its own seriously decapitating this relationship of the complainant. Social problems would have set in and serious break down in law order would have come. And when it involves the family the basic unit of society the Court must take a serious stance to protect. Deterrent and punitive sentences must be imposed against those who see fit to offend. Here credit must go to the complainant who has abruptly stopped avoided the prisoner by taking the stand she took against him. It is a bold step that must see the sentence reflect. And this is born out by her own words, “On the 13th November, I requested to meet up with him. As a mother of teenage girls, I felt the urge to stand up against sick people as such and put an end to their sickening behaviour so that my story will serve as an anchor for my daughters to have courage to stand up against such sick people if they ever come across in future.” It is sickening and must be immediately stamped out with a strong deterrent and punitive sentence. 

14.	He had a right to communicate lawfully with that devise. No one has authority over the way that a person uses his mobile devise, phone. But used in breach of the law must be stopped with immediate deterrent sentences. It was his prerogative whether he used it lawfully in compliance of the law, or that he breached the law in its use. Persons of all walks of life use the mobile phone and its use must be in law by law within law not without as is the case here. Here is a teacher who blew the whistle, what about those who in the privacy of their lives with their mobile phones chose not to blow the whistle on this behaviour as she did here. This sentence will deter any who have similar inclination and who are doing it now. Or who have inclination in that regard.

15.	Technology has made life easy, but it cannot be abused in this way so that life of a fellow human being is tormented and threatened with serious consequences no fault of that person. I do not have any material to exercise the discretion that the court can exercise taking account of Public Prosecutor v Tardrew [1986] PNGLR 91. I must give acquiescence to the intent of the legislature, discounted by the facts and circumstances set out here. I do not find the cases on the other sections of the Cybercrime Code Act section similar to the facts here. This is a case peculiar by its own facts and circumstances drawing in my view a sentence of 5 years imprisonment in hard Labour. That would be a third of the term imposed by the section.

16.	He has pleaded guilty and is a first-time offender. There is no evidence of any serious effects as a result of his actions against the complainant and her life. I consider that the aggregate is 4 years imprisonment IHL. And I so impose that upon the prisoner. I order the time that he has spent on remand be deducted and he will serve the balance in jail. I make no order as to a fine as there is no material before me warranting to go along that path. Particularly by the presentence report ordered.

Orders Accordingly
__________________________________________________________________ 
Lawyer for the State: Public Prosecutor 	
Lawyer for the defendant: Public Solicitor