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State v Bui [1990] PGNC 74; N944 (14 December 1990)

Unreported National Court Decisions

N944

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

CR. 717/90
THE STATE
V
JOHN PUWA BUI

Goroka

Brunton J
14 December 1990

CRIMINAL LAW - Criminal Law s.210(1) - carnal knowledge against the order of nature - sentencing - prisoner and victim CIS detainees - force used - prisoner serving sentence for rape - Probation Act ss16(2)(2)(b), 16(5), 17 18(10)(c), 24(c).

Sentence:

Sentence deferred under s16(2)(b) of the Probation Act. To be placed on three years probation to commence on release from his current sentence for rape (s16(5) Probation Act). On his release to report once a fortnight to his Probation Officer: Probation Act s17. Order to return to his village and remain there for three years Probation Act s18(10)(c). Copy of the Probation Order to be given to the Chairman of the Village Court in prisoner’s area Probation Act s24(c)

Statutes Cited:

Criminal Code s.210(1)

Probation Act ss16(2)(b), 16(5), 16(5),17,18(10)(c), 24(c).

Counsel:

Mrs C Ashton-Lewis: For the State

Mr K Inkisopo: For the Prisoner

JUDGEMENT ON SENTENCE

BRUNTON J: The prisoner pleaded y to y to an offence contrary to Section 210(1) of the Criminal Code, that he had carnal knowledge against the order of n. It was alleged that while a detainee he, with force, had anal intercourse with another deer detainee at Bihute Corrective Institution.

Under this provision, the law does not distinguish between an act done with consent, or without consent. But to forcefully have anal intercourse is obviously an aggravating circumstance. The victim sustained no real physical injury.

The prisoner on his allocutus told the Court that homosexual acts were not uncommon in jails, and they generally did not get punished. He also told us that he lost control of himself. He is currently serving a four year sentence for the rape of a woman. His due date of release is the 21st June 1991, if he gets remission, or 11th July 1992, without remission. It may well be that this offence causes him to loose his remissions. The Court sought a pre-sentence report, and a psychiatric report. A pre-sentence report was prepared by the Probation Service - but there are no facilities in the Highlands to obtain a psychiatric report, so the court must do the best it can.

In my view extending the period of this prisoner’s Imprisonment will not help him, and may aggrevate his antisocial tendencies. The dilemma the Court is faced with is that the prisoner appears to be bi-sexual, presently serving time for hetrosexual rape, and now pleading guilty to a violent homosexual act. Homosexual acts seem to be not uncommon in prison, so on the one hand imprisonment may aggravate his condition, yet, on the other hand there is a need to protect the community, both in and out of the prison system.

The pre-sentence report recommends extending his term of imprisonment, in the hope that with counselling and guidance he may rehabilitate. I am not impressed with that as a viable option. There are no counselling services available; homosexuality is a personal disposition, not a medical condition or a social affliction. Further, imprisonment should be kept as a last option. The strategy more appropriate is to let him serve out his current sentence for rape, to defer sentencing under s16(2)(b) of the Probation Act, place him on a three years period of probation to commence on his release from his current sentence (s16(5) Probation Act.)

Under the Probation Act, s17, on his release on probation, the prisoner is to report once a fortnight to his Probation Officer.

Under s18(10(c) of the Probation Act, it is ordered that on his release on probation he is to return to his village Ontenu, outside Kainantu, and remain there for three years.

Under s24(c) of the Probation Act, a copy of this Probation Order is to be given to the Chairman of the Village Court in the Ontenu area, and all Village Court Magistrates and Peace Officers in the immediate area are to be advised of it.

The effect of these orders is to put the prisoner back into his own village on release after the completion of his current sentence. He will be on probation for three years, have to stay in his village, report to his Probation Officer once a fortnight, be under the eye of the Village Court, and be of good behaviour. If he breaches any of these conditions he may then be brought back to the National Court for sentencing on this offence. So, on the one hand the prisoner could be released to live a normal life, but on the other hand he has the threat of a prison sentence hanging over him during the three years of his probation, should he misbehave, or breach his probation.

I recommend to the Commissioner of Corrective Institutions that he give favourable consideration to the matter of the prisoner’s remissions. If possible he should be released on the due date without loss of remissions; but it is a matter which must rest in the Commissioner’s hands.

Lawyer for the State: The Public Prosecutor

Lawyer for the Prisoner: The Public Solicitor