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State v Bosco [2025] PGNC 208; N11336 (16 June 2025)

N11336

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

CR 1481 OF 2021

THE STATE

V

SEBASTINE BOSCO

Waigani: Berrigan J
16 June 2025

CRIMINAL LAW – SENTENCE – DEFAMATORY PUBLICATION – Section 21(2), Cybercrime Code Act, 2016 – Considerations on Sentence - Malicious, planned, repeated defamatory publications, over a period of more than 12 months, using different accounts and aliases – Sentence of seven years, partially suspended.

The offender was convicted following trial of three counts of defamatory publication on Facebook on 30 September 2019, 8 January 2020 and 22 October 2020, alleging that Fr Jan Czuba, the Secretary of the Department of Higher Education, Research, Science and Technology (DHERST) and Ms Leah Margis, one of three Deputies, had conspired to and did steal millions of Kina of State monies.

Held:

(1) In determining an appropriate sentence under s 21(2), (3) or (4), Cybercrime Code Act the following considerations may be relevant:

• (a) the nature and gravity of the defamation;
• (b) the mode and extent of publication;
• (c) the conduct and intention of the offender, including:
  1. whether publication was intentional or reckless;
  2. whether the offender knew that the publication was false;
  3. the offender’s motive, including the nature and extent of injury intended, whether the offender was actuated by malice, or for the purpose of extorting a benefit;
  4. the planning involved;
  5. whether the publication was made openly or using an alias;
  6. whether there was a breach of trust;
• (d) the extent to which the offender persisted with the defamation, including any retraction or apology; and
• (e) the impact on the victim, including the extent of harm established.
  

(2) In aggravation the nature and gravity of the defamation on Counts 1 and 3 was very serious. The publications were made against two persons, the Secretary and Deputy Secretary of DHERT, and alleged criminal conduct, namely a conspiracy to and the stealing of millions of Kina of State monies by them whilst in office. The offender was driven by malice, resentment and jealousy together with a strong determination to injure the reputations of both victims, have them removed from office and pressure police into laying criminal charges. He did not care whether the publications were true or not. The publications were deliberately made on open forum Facebook accounts with the intention of gaining media attention and pressuring police, and the posts were seen by thousands of people. The publication on Count 1 was made using an alias. The publication on Count 3 condoned theft and encouraged others to take the law into their own hands. All involved some planning. The offender was not in a close position of trust to the victims but did use his position at DHERST to post documents to purportedly bolster his allegations. The impact on each of the victims has been great. In mitigation this is the offender’s first offence. He was previously of good character. There is limited remorse. There has been some delay.

(3) The offender is sentenced to seven years of imprisonment without hard labour on Count 1, the rising of the Court on Count 2 and five years of imprisonment without hard labour on Count 3, all to be served concurrently. The sentence is partially suspended on conditions, including the deletion of the publications and related comments and ongoing recognisance for the period of his sentence.

Cases cited

State v Sebastine Bosco (2023) N10392
Goli Golu v The State [1979] PNGLR 653
Acting Public Prosecutor v Aumane & Ors [1980] PNGLR 510
Lawrence Simbe v The State [1994] PNGLR 38
State v Wari (2024) N11100
Opi v Telikom Ltd (2020) N8290
Theresa Joan Baker v Lae Printing Pty Ltd [1979] PNGLR 16
PNG Aviation Services Pty Ltd v Michael Thomas Somare [1997] PNGLR 515
Allan Peter Utieng v The State (2000) SCR No 15 of 2000
The Public Prosecutor v Vangu’u Ame [1983] PNGLR 424
Re Section 21(2) of the Cybercrime Code Act 2016 (2024) SC2608
PNG Aviation Services Pty Ltd v Somare [1997] PNGLR 515
Yakham v Merriam [1999] PNGLR 592
Mudalige v Rabaul Shipping Ltd (2011) SC1132
Reynolds v Times Newspapers Ltd [1999] UKHL J1028-4
The State v Benedict Simanjon (2020) N8637
State v Tony Kande, Henry Naio and Wilson Muka (2021) N9252
The State v James Paru (No 3) (2021) N9248
The State v Tardrew [1986] PNGLR 91
Tremellan v The Queen [1973] PNGLR 116
Public Prosecutor v Kerua [1985] PNGLR 85

Counsel

J Siminji for the State
G Bon for the offender

DECISION ON SENTENCE

2. BERRIGAN J: The offender was convicted following trial of three counts of defamatory publication contrary to s 21(2) of the Cybercrime Code Act, 2016, for which the maximum penalty is a fine not exceeding K25,000 or a term of imprisonment not exceeding 15 years, or both.
   

Preliminary Matter

3. The offender was convicted by Acting Justice Linge: State v Sebastine Bosco (2023) N10392. Linge AJ’s term expired in July 2023 and before delivering sentence. The matter subsequently came before me. Upon application by both parties I decided that I would deal with the matter pursuant to s 576(3), Criminal Code as the presiding judge was incapable of proceeding.
   

Facts

4. At the relevant time the offender was a former employer of the Department of Higher Education, Research, Science and Technology (DHERST) having been dismissed.
   
5. The learned trial judge found that the offender used an electronic device being his mobile phone via various Facebook accounts to intentionally post three defamatory publications with the intention of inducing other people to shun, ridicule, despise and injure the reputation of Fr Jan Czuba, then Secretary, DHERST, and Leah Margis, one of its Deputy Secretaries.
   
6. The first Facebook post was posted on 30 September 2019 by the accused under his Facebook account named “Essemkay Billy” as follows:
   

7. The second post was made on 8 of January 2020 through the accused’s Facebook account in the name of “Sebastian Bosco Dominique”:
   

8. The third was posted on 22 October 2020 again using the account in the name of “Sebastian Bascoe Dominique”:

Allocutus

9. The offender made a statement on allocutus to the effect that:
   

“I thank the judiciary for hearing my case thus far. Since a child I have never been before the court or stolen from anyone or harmed anyone. I am raised in the church and am a Christian. I did not intend to harm the plaintiffs but to expose misconduct in office of which I gathered evidence and amounted to crime or the allegations of the post that I made. I did not know that the evidence that I put on would warrant such an outburst by the Facebook community that warranted harm to the plaintiffs and I regret my actions. To date I did not intend to have done wrong and I am sorry. I apologise to the Court and the victims and their families to my family as myself... I have seen myself as a whistle blower and the prudent approach if I had known of Whistleblowers Act I would have done it but I failed in that area. I am married with three small children. I come from a poor family and the only one who has graduated university. I have been terminated twice and fighting for reinstatement for the last seven years. It has tormented me and I have missed out on building a career as well as continue work as a whistleblower and avoid things to be where am now. This is my first time to be convicted. I am sorry to my Lord and saviour Jesus Christ. I also let my family down. They always discourage me from standing up for my country. That is all. Thank you.”

Submissions

10. The State submitted in aggravation that there were three offences, conducted over a period of time. The posts were directed at two victims, both of whom held very senior positions, were psychologically, socially and emotionally traumatised by the publications and whose reputations were tarnished. The offender published the material maliciously. It caused many others on Facebooks to make comments. A strong deterrent message is required. A sentence of five years on each count is appropriate. Having regard to the fact that the post in Count 2 concerns a different subject matter from Counts 1 and 3 it should be served cumulatively with the sentences on those counts, warranting an effective sentence of 10 years of imprisonment.
    
11. Defence counsel submitted that the publications were supported by evidence which was uploaded in the posts. There was no trial on the merits of the posted documentation. The offender was convicted purely because of comments made by others. The publications were made for public consumption because the funds and the positions held were public. The offender did not intend to harm anyone other than expose the truth about corrupt practices at DHERST without knowledge of the offence. His intention was to expose systematic corruption which remains a huge challenge to all Papua New Guineans who are continuously being suppressed by people in power and authority and this case is no different. He has a huge family who depends on him when the country is facing a tough economic situation. He has expressed remorse to Fr Czuba and has attempted to do so to Leah Margis. He regrets doing what he did without understanding the Cybercrime Code Act. He seeks a fine of K2000 or a bond of good behaviour. It is not a very serious matter because both victims are still employed. He refers to the matters outlined in the offender’s statement to Probation Services.
    

Consideration

12. I remind myself that the maximum penalty is reserved for the most serious instances of the offence: Goli Golu v The State [1979] PNGLR 653. Section 19 of the Criminal Code provides the Court with broad discretion on sentence: applying s 3(1)(2), Cybercrime Code Act. Consideration must be given to protection of the community, punishment, rehabilitation and deterrence: Acting Public Prosecutor v Aumane & Ors [1980] PNGLR 510. Every sentence must be determined according to its own facts and circumstances: Lawrence Simbe v The State [1994] PNGLR 38.
    
13. This is the first reported sentence for an offence of defamatory publication under the Cybercrime Code Act. It appears to me that in determining an appropriate sentence under s 21(2), (3) or (4), Cybercrime Code Act the following factors may be relevant:
    
    • (a) the nature and gravity of the defamation;
    • (b) the mode and extent of publication;
    • (c) the conduct and intention of the offender, including:
      1. whether publication was intentional or reckless;
      2. whether the offender knew that the publication was false;
      3. the offender’s motive, including the nature and extent of injury intended, whether the offender was actuated by malice, or for the purpose of extorting a benefit;
      4. the planning involved;
      5. whether the publication was made openly or using an alias;
      6. whether there was a breach of trust;
    • (d) the extent to which the offender persisted with the defamation, including any retraction or apology; and
    • (e) the impact on the victim, including the extent of harm established.
      
14. The above matters are not intended to be exhaustive and are to be considered together with the matters usually considered on sentence including the nature of the plea.
    
15. Applying the above considerations, the nature and gravity of the defamation in each of the publications in Counts 1 and 3 was very serious.
    
16. Count 1 expressly alleged criminal conduct, in particular the improper appointment of Ms Margis by Fr Czuba in an abuse of his office for the purpose of a conspiracy to steal millions of Kina in public funds. Count 3 again accused both Fr Czuba and Ms Margis of stealing large amounts of State monies. Both Counts 1 and 3 defamed two persons holding senior positions in the public service.
    
17. Count 2 is quite different. It was not defamatory because it reported that Fr Czuba had been criminally charged. That was a matter of public record at the time. Nor was it defamatory for calling for Fr Czuba to be removed having been so charged. It was defamatory with respect to Fr Czuba because it stated not only that Fr Czuba had been charged with a criminal offence but that he was a criminal. If the offender had stopped short of that the post might well have been found to have been a fair comment, such that, without commenting on the merit of the accusations, it was “fair”, as that term is understood at law, to ask why a person charged with a criminal offence was still sitting in office: see State v Wari (2024) N11100 at [74] to [81].
    
18. The publications were intentional. The offender was actuated by malice: State v Sebastine Bosco at [70]. The offender intended to injure the reputations of both Fr Czuba and Ms Margis (State v Bosco at [76]) and to have each of them removed from the DHERST. He did not care whether the posts were true or not. “His underlying objective was to have Fr Jan charged and he did not care however it happened”: [93].
    
19. In each case the defamatory publications were deliberately made on open forum Facebook accounts. By the offender’s own admission it was his intention to gain media attention, to pressure police into charging, and the posts were seen by thousands of people.
    
20. The publication in the first and most serious publication was made using an alias, “Essemkay Billy”. To hide behind an alias whilst claiming to fight for transparency is, at least in the circumstances of this case, hypocritical and cowardly. On Count 2, the offender published in his own name. He did so again in Count 3 but that post only served to compound the injury caused by the first post, particularly after such a lapse of time.
    
21. Each of the offences involved some planning.
    
22. The offender was not in a close relationship of trust with the victims but he did use his position at DHERST to obtain documents to purportedly bolster the defamatory publications, at least in Count 1.
    
23. Both victims suffered damage to their reputations. The law recognises that a defamatory publication by its nature causes damage to a person’s reputation albeit might be difficult to quantify the extent of that damage: see Opi v Telikom Ltd (2020) N8290 and the discussion of cases applying, including Theresa Joan Baker v Lae Printing Pty Ltd [1979] PNGLR 16; PNG Aviation Services Pty Ltd v Michael Thomas Somare [1997] PNGLR 515.
    
24. At the time Fr Czuba, 64 years old, was the Secretary, DHERST. He is now the Acting Secretary following reinstatement. He says in his victim impact statement that the offences have greatly injured himself and his family as well as his professional life as Secretary of the Department and as a priest. The offences had and continue to have an emotional, financial, physical, psychological and social impact on him. He has been unable to sleep. He withdrew from his friends. He was charged with criminal offences, lost his position as the Secretary and had to go through a long legal process to be declared innocent. When his 91 year old mother saw the posts on social media she became unwell and was admitted to hospital.
    
25. I accept that the impact on Fr Czuba and his family has been great. Allegations that he stole millions of Kina belonging to the State whilst Secretary for the Department were extremely damaging to his reputation both as someone who has dedicated his life’s work to education in Papua New Guinea for the past 35 years and given his vocation as a priest.
    
26. It is important to make clear, however, that the criminal proceedings brought against Fr Czuba are not an aggravating factor. Regardless of the offender’s intention, the decision to investigate and charge were matters for the police officer concerned. Fr Czuba was committed for trial and ultimately the decision to indict him at the National Court was a matter for the State and in particular the Office of the Public Prosecutor who controls the prosecution function of the State and also pursued the present charges against the offender.
    
27. Conversely, the fact that Fr Czuba has been vindicated (State v Czuba (2022) N9397) and returned to his former position, at least in an acting capacity, is relevant but it does not detract from the offender’s intention nor the damage to Fr Czuba’s reputation which has inevitably occurred.
    
28. Similarly, I accept that the offences caused great stress and anxiety to Ms Margis and her family. The victim impact statement of Leah Margis, 34, now attached with Voice Inc, shows that she is a highly qualified academic with a degree in journalism from Divine Word University, a Masters in Higher Education from Sydney University and research experience with the Australian National University. She cannot understand why the offender targeted her. Since the offences she has been shunned professionally. Despite her achievements, the internet will forever record the defamatory publications made by the offender against her. As a result of his claims sexist imputations have been made on social media about how she as a younger Papua New Guinean woman could hold a position of responsibility. As a result she has suffered depression and anxiety. The offences also affected her family, her parents and siblings, particularly the health of her parents.
    
29. As for the offender, he is 32 years of age. He is from Sangurap Village, Wabag, Enga Province. He is well educated, having obtained a degree in Strategic Management from the University of Papua New Guinea. At the time of the offences he was employed as the Manager, Technical, Vocational and Educational (TVET) Branch within DHERST under the leadership of Fr Czuba, a position he was appointed during his third year of university and held until he was terminated in relation to these offences. He currently sustains a living with freelance work. He is married with three children, aged 3, 5 and 12, all of whom are financially dependent on him together with his father who was made a paraplegic in 2014. He is the guardian of his younger brother, who had to withdraw from university studies as a result of this case due to lack of funds.
    
30. In mitigation this is the offender’s first offence.
    
31. I accept that he is of prior good character. He held a position of responsibility within DHERST for many years. Pastor Benjamin Tambi says that he has been a committed member of the Holy Spirit Lift Ministry since 2000. He is a church leader and youth mentor. George Doa Gawi, former Village Councillor, Kendeng Block Council Ward 03, has known the offender since he was a child and regards him as a son. He is admired by leaders and elders of the community. He has been a guardian to his family, in particular his younger brother Joshua, who relies heavily on his support for education.
    
32. The impact of the offence on the offender has been significant. He has been terminated from a relatively senior position with DHERST, the only formal employment he has ever had as far as I can tell, and a position he has been dedicated to for many years since he was in the third year of his studies at university. It also appears to me that he will struggle to find future employment in the education sector in which he has both experience and training given the nature of the offending. Whilst I acknowledge that imprisonment will have a significant impact on the offender’s family, in particular his invalid father, dependent brother and his wife and children, all of whom are dependent on him, it is well established that except in very extreme circumstances, the impact on family is not ordinarily a relevant consideration on sentence: Allan Peter Utieng v The State (2000) SCR No 15 of 2000; The Public Prosecutor v Vangu’u Ame [1983] PNGLR 424.
    
33. The offender has expressed remorse, but it is heavily qualified. He made a long statement to Probation Services in which he says that he deeply regrets and sincerely apologises to the victims for the public humiliation, stress and pain caused. He did not intend to cause them harm. He thought he was exposing corruption but was driven by emotion and now realises that he was breaking the law. He was not aware of the Cybercrime Code Act or the Whistleblower Act and would never have contravened the law if he had been aware of it. He only now understands the magnitude of the harm caused by his social media posts. He says that he verbally apologised to Fr Czuba on 4 May 2023, which apology was accepted, and has attempted but been unable to locate Ms Margis to apologise to her.
    
34. Neither the apology nor its acceptance are referred to in Fr Czuba’s victim impact statement. There is nothing before me to suggest that the offender removed his posts and the associated comments. Nor did he issue a public retraction or apology.
    
35. Moreover, the offender maintains that he made complaints to the Ombudsman Commission and National Fraud and Anti-Corruption Directorate but action was slow, so he had to garner public support. His comments were taken out of context, he stands by the allegations and claims that they have not been properly examined in a competent court of law.
    
36. I reject the submission that the offender was convicted only because of the comments made by others. That is inconsistent with the decision on verdict.
    
37. I reject the claim that the offender did not intend to harm anyone. That is also inconsistent with the findings of the trial judge.
    
38. I reject the submission that the publications were supported by evidence which was uploaded in the posts. It appears that there was some documentation attached in support of the posts but whatever it was, neither it nor any other material produced satisfied the judge on the balance of probabilities of any defence under the Cybercrime Code Act.
    
39. I was initially of the view that there was some mitigation in the fact that the allegations against Fr Czuba were investigated and brought to trial. But I note the damning findings of the trial judge in that case: State v Czuba, supra at [105] and the findings of the trial judge in this case that Fr Czuba had nothing to do with Ms Margis’ appointment, which was done through an independent process by the Department of Personnel Management (DPM) from among several other shortlisted candidates, which was admitted by the offender at the trial, and furthermore, that there was no evidence of Fr Czuba’s connection with any company as alleged by the offender.
    
40. Moreover, as above, the trial judge found that the offender was motivated by malice. The fact that charges were brought against Fr Czuba is beside the point as far as this offender is concerned in the circumstances.
    
41. In short, these were not the actions of a well-intentioned but overzealous and unsophisticated vigilante. The allegations were unfounded, and the offender was bent on destroying Fr Czuba and driven by jealousy and resentment against each of the victims.
    
42. The Supreme Court has upheld the constitutionality of the provisions: Re Section 21(2) of the Cybercrime Code Act 2016 (2024) SC2608 on the basis that the provisions are necessary to protect reputation, the importance of which has been recognised in the civil context in this jurisdiction: see PNG Aviation Services Pty Ltd v Somare [1997] PNGLR 515; Yakham v Merriam [1999] PNGLR 592 and Mudalige v Rabaul Shipping Ltd (2011) SC1132 and others. Similarly, in the words of Lord Nicholls in Reynolds v Times Newspapers Ltd [1999] UKHL J1028-4, again in civil proceedings:
    

“Reputation is an integral and important part of the dignity of the individual. It also forms the basis of many decisions in a democratic society which are fundamental to its well-being: whom to employ or work for, whom to promote, whom to do business with or to vote for. Once besmirched by an unfounded allegation in a national newspaper, a reputation can be damaged for ever, especially if there is no opportunity to vindicate one's reputation. When this happens, society as well as the individual is the loser. For it should not be supposed that protection of reputation is a matter of importance only to the affected individual and his family. Protection of reputation is conducive to the public good. It is in the public interest that the reputation of public figures should not be debased falsely.”

43. The provisions must not be taken to stifle free and open public debate or interfere with the raising of legitimate questions or the making of fair comment about those in public office. But there is a difference between that and the making of unfounded allegations motivated by malice.
    
44. There are no matters of mitigation special to the offender in terms of age or health. There has been some delay since his charging in February 2021. I note the principles applying. As in any case delay must be balanced against all the other factors for consideration, including the nature and seriousness of the offence: The State v Benedict Simanjon (2020) N8637 at [40]; State v Tony Kande, Henry Naio and Wilson Muka (2021) N9252 at [58]; The State v James Paru (No 3) (2021) N9248 at [37]. It is my view that some weight should be given to the delay, particularly the delay following conviction in 2023 but to avoid giving it undue weight I intend to consider it on the matter of suspension below: The State v Tardrew [1986] PNGLR 91 applied.
    
45. The offender exercised his right to trial. Having regard to counsel’s submissions, I make it clear that this is not a matter of aggravation but he is not entitled to any discount that might have been available to him had he pleaded guilty: The State v Solomon Junt Warur (2018) N7545.
    
46. Assuming the starting point for an offence against s 21(2), Cybercrime Code Act to be about 7 years the sentence imposed given the gravity of the offending might well exceed that. Having regard to the totality of the circumstances, however, I impose the following sentences: 7 years of imprisonment on Count 1; the rising of the Court on Count 2; and 5 years of imprisonment on Count 3.
    
47. There is no “all-embracing” rule as to when sentences for two or more convictions should be made concurrent. Generally, sentences should be made concurrent where a congeries of offences is committed in the prosecution of a single purpose or the offences arise out of the same or closely related facts: Tremellan v The Queen [1973] PNGLR 116. Where the offences are different in character, or in relation to different victims, the sentences should normally be cumulative: Public Prosecutor v Kerua [1985] PNGLR 85.
    
48. The offences were similar in nature and used essentially the same methodology, albeit through different Facebook accounts, which arguably provides a basis for cumulation, particularly on the basis that it might give the appearance of lending weight to the claims. To my mind, however, the offences were part of the same transaction.
    
49. Accordingly, I sentence the offender to an effective sentence of seven years in imprisonment. To date no time has been spent in custody.
    
50. I intend to partially suspend the sentence. It has been some time since the offending and the offender’s conviction. It is also my view that partial suspension will promote the offender’s rehabilitation.
    
51. I make the following orders.
    

Orders

(1) On Count 1, the offender is sentenced to seven years of imprisonment without hard labour.
(2) On Count 2, the offender is sentenced to the rising of the Court.
(3) On Count 3, the offender is sentenced to five years of imprisonment without hard labour.
(4) The sentences will be served concurrently.
(5) Three and a half years of the head sentence is suspended on condition that the offender:

1. delete the publications the subjects of Counts 1, 2 and 3 and associated comments within 7 days of today’s date;
2. enter into his own recognisance to be of good behaviour for the balance of his sentence.

(6) Bail monies are to be refunded.

Sentence accordingly.
___________________________________________________________
Lawyer for the State: Public Prosecutor
Lawyers for the offender: Gibson Bon Lawyers