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State v Sevese [2015] PGNC 42; N5961 (5 March 2015)

N5961

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 867 of 2014

THE STATE

-V-

JOE SEVESE
Respondent

Popondetta: Toliken, J.
2015: 05th March

CRIMINAL LAW - Sentence – Indecent acts between males - Plea – Guilty – Mitigating and aggravating factors considered – Purpose of sentencing for offence considered – Need to uphold morals – Appropriate sentence – 2 years less period in custody – Balance wholly suspended on condition – Criminal Code Act Ch. 262, s 212 (1)(a).

Facts:
The accused and co-accused (now deceased) were caught by the accused's wife performing oral sex outside the tall grass at the Popondetta Rugby Field. He pleaded guilty to one count of indecent acts between males contrary to Section 212(1)(a) of the Criminal Code Ch. 262.

Held:

1. This offence is against morals and Christian principles. It is also specifically against the cultural norms and principles of Oro society.
   
2. A sentence in this case must serve principally to deter the offender and others from indulging in this type of behaviour.
   
3. While the court is not a judge of morals, the court has a duty to uphold moral principles when the people, through Parliament, legislate against certain immoral conduct, such as the one in this case.
   
4. The mitigating factors are; guilty plea, first offence, expression of remorse and this is a one-off incident.
   
5. Aggravating factor is that while not reported widely this type of behaviour is prevalent.
   
6. The appropriate sentence is 2 years less time spent in pre-trial custody.
   
7. An appropriate case for a suspension. The resultant sentence is wholly suspended with conditions.
   

Cases Cited:

Golu v The State [1979] PNGLR 653
Aihi v The State (No.3) [1982] PNGLR 92
Public Prosecutor v Don Hale (1998) SC 564

Counsel:

J. Done, for the State
E. Sasingian, for the Prisoner

SENTENCE
05th March, 2015

1. TOLIKEN, J: Mr. Joe Sevese, you were charged with one count of engaging in an indecent or gross indecent act between males under section 212 (1) (a) of the Criminal Code. This offence carries a maximum of 3 years.
   
2. These are the brief facts that were put to you on arraignment. On the first day of January 2014 at about 5.00a.m, you, Joe Sevese and Andrew Masida (now deceased) were at the rugby league field here in Popondetta town when you were seen by witnesses committing an act of indecency. The State said that Andrew Masida was performing oral sex on you while you were pushing your penis in and out of his month. You pleaded guilty to these brief facts.
   
3. Now, just going briefly to your personal details, you are 36 years old and come from Sepoe village in the Malalaua district but you now reside in Popondetta. You are married with 3 children who are now aged 18, 14, and 12 years. You were educated up to grade 6 only and you have no formal employment.
   
4. When asked to address the court on sentence you apologised to the State, to the court, to the victim's relatives, and you also apologised to your wife and your family, the community and you asked for a non-custodial sentence.
   
5. On your behalf Mr. Sasingian submitted that while this is a misdemeanour, it is nonetheless serious. However, it is not a worst offence of its type. Mr. Sasingian pointed out to the court several mitigating factors to the court which I shall come to later on. And he also submitted that a head sentence for you in this matter should be 2 years from which 1 year 3 months which you were in custody should be deducted.
   
6. For the State Mr. Done submitted that this is a prevalent offence despite the fact that a lot of cases are not reported. He said that this offence is on the rise. It is a disgraceful conduct which is reflective of the moral decay in the society. It is, he said, also an immoral conduct that is against Oro society, and against Christian principles. He submitted that a deterrent sentence is needed to deter you and others as well. He agreed with the sentencing range suggested by your lawyer but he said that none of this should be suspended.
   
7. Now as I indicated earlier this offence carries a maximum penalty of 3 years imprisonment. However, the law is clear that maximum sentences or the maximum penalty is reserved always for the worst instances of a particular offence. The law is also settled that cases are to be treated on their own merits, that is, according to their own circumstances and facts. (Golu v The State [1979] PNGLR 653; Aihi v The State (No.3) [1982] PNGLR 92)
   
8. Both counsels have not cited any cases to me on sentences which may have been previously imposed by the court on this type of offence. I also am not aware of any such cases.
   
9. Be that as it may, I need to deal with your case. And firstly I need to ask myself if this is a worst offence. I would say that it is not.
   
10. To arrive at an appropriate sentence for you I need to take into account those factors that mitigate your offence and any aggravating factors. I also need to take into account the purpose of sentencing for this offence would try to serve.
    
11. So looking at your mitigating factors, you pleaded guilty to the charge and you're also a first time offender. I find that this was a one-off incident which was committed in open space. I also find that you have expressed some remorse. Whether that is genuine or not, I think you expressed remorse largely because you have realised that you have brought about shame not only on yourself but on your family and those who are closely related to you.
    
12. As to the aggravating factors, I agree with Mr. Done that despite the fact that there is lack of reported cases for this kind of offence, I do accept that it is generally accepted that homosexual acts or this type of behaviour is quite prevalent in society.
    
13. This offence is one that offends against not only the Criminal Code, but also against morals and Christian principles and norms and principles of traditional society, and in particular Oro society.
    
14. As I said this offence is on the rise in the country and I agree with Mr. Done that this reflective of the moral decay that is creeping into our society, and if I may mention, the internet has not helped in promoting morals. It has actually contributed to moral decay because of the easy availability of indecent, if not pornographic materials, which are available at one's finger tips. No longer do we need a computer to get into internet sites which promote and display objectionable materials such as pornographic material.
    
15. Your offence, has, unfortunately a lot of innocent victims and this includes your wife and children, your relatives, your in-laws, and so-forth. While you may have suffered ridicule and shame (which you may suffer for the rest of your life) these people who are close to you did not need to be humiliated and embarrassed by your action. Your relationship with your wife and children will not be the same anymore because you have betrayed their trust. No longer will they see you as a loving, caring, father and husband, and, of course there are consequences as we have seen including the fact that your eldest child, is no longer in school. But for that you have to take personal responsibility.
    
16. A sentence in this case must serve principally to deter you and others from indulging in this type of behaviour. While this court is not a judge of morals, the court has a duty to uphold moral principles when the people through parliament legislate against certain immoral conduct, such as the one in this case. The courts are therefore duty bound to answer to the peoples' call and punish offenders appropriately.
    
17. I do accept that you will forever suffer a huge dent in your reputation and you will no longer walk with your head high anymore, but that is something that you brought upon yourself, you have nobody else to blame.
    
18. But I do agree with your counsel that a starting point in your case should be around 2 years. So while acknowledging your mitigating factors I find an overriding need to uphold morals, and the need for personal, as well as general deterrence. I fix your head sentence at 2 years.
    
19. I therefore sentence you to 2 years imprisonment. I deduct 1 year and 3 months for the period that you spent in custody up until now. That leaves you with a resultant sentence of 9 months imprisonment.
    
20. Now the next question is; should any of these be suspended? Suspension of sentences is also guided by principles, and one such principle is that suspension should be supported by a favourable or good Pre-Sentence Report. A favourable Pre-Sentence Report is one where the community has expressed a willingness to supervise an offender whilst he's on probation or whilst he's under suspension. (Public Prosecutor v Don Hale (1998) SC 564
    
21. In your case I think a suspension too will be appropriate because of a good Pre-Sentence Report. Furthermore if it will promote reconciliation and restoration of your relationship with those whom you have wronged and those whom you have offended such as your immediate family, your extended family which includes your in-laws, than a suspended sentence would also be appropriate.
    
22. I therefore suspend the 9 months of the resultant sentence wholly, and I order that you enter into probation for a period of 12 months with two additional conditions; one is that you will undergo counselling with an agency nominated by the Senior Probation Officer Ms. Robin Surute, and secondly you will do 120 hours of free community service with the Popondetta General Hospital under the supervision of the Senior Probation Officer and the Hospital Chief Executive Office. There are other conditions of your probation order which are mandatory. Your probation officer Ms. Surute will advise you or tell you what those conditions are.
    
23. So the sentence of this court is that you are sentenced to 2 years imprisonment, of which, 1 year 3 months is suspended leaving a resultant sentence of 9 months. The resultant sentence is suspended fully with the condition that you will enter into probation for a period of 12 months with the following additional conditions:
    
    1. You will undergo counselling with an agency nominated by the Senior Provincial Probation Officer; and
       
    2. You will do 120 hours of community work with the Popondetta General Hospital under the supervision of the Senior Probation Officer and the Hospital CEO. That is the sentence of the court.
       

Ordered accordingly

_________________________________________________________

The Public Prosecutor: Lawyer for the State
The Public Solicitor: Lawyer for the Prisoner