The Cybercrime Code Act 2016 introduced a sentencing option unknown to the general criminal law of Papua New Guinea: an order prohibiting a convicted person from using information and communication technologies at all.
The standard form of words
“Prohibition from accessing and using ICTs or electronic systems or devices for the term of imprisonment imposed plus an additional two years.”
For a child offender the formula substitutes “the term of detention imposed”.
Plus two years — the usual form, in s 22(1), s 22(2), s 23(1), s 23(2), s 23(4), s 27, s 28, s 29, s 30 and s 31, and in s 14(1).
For the term only — in the two life-sentence provisions, s 22(3) and s 23(3), where the prohibition runs for the term of imprisonment imposed, without the extra two years.
“Or” and “and”
| Wording | Effect | Where |
|---|---|---|
| “or … or both” | The prohibition is an alternative to custody, or may be added | ss 14(1), 22(1), 22(2), 23(1), 23(2) |
| “or all of Subparagraphs (i), (ii) and (iii)” | Custody, fine and prohibition may be combined in any way | s 23(4) |
| “or all or any of Subparagraphs (i), (ii) or (iii)” | The same, throughout Division 4 | ss 27, 28, 29, 30, 31 |
| “and” | The prohibition is mandatory in addition to imprisonment for life | ss 22(3), 23(3) |
In the ordinary case the court has a genuine choice: it may impose the prohibition instead of a custodial term.
In the two provisions dealing with death resulting from cyber bullying or cyber harassment, the word is “and”, and the prohibition accompanies the life sentence.
What the prohibition covers
Section 2 defines electronic system or device broadly, reaching any device or group of interconnected devices performing automatic processing of data.
On the ordinary meaning of the words, a prohibition would extend to computers, tablets, smartphones, and any device with processing capability — and to the services accessed through them.
That is a very wide restriction in a country where mobile money, government services, banking, employment and family contact increasingly run through a phone.
The Act provides no machinery for the prohibition. It does not say:
- Whether the order may be partial — excluding, for example, a work computer or a basic phone;
- How compliance is to be monitored;
- What the consequence of breach is;
- Whether the order may be varied or discharged on application.
Two provisions may fill the gap. Section 3(1)(c) applies the punishment provisions of the Criminal Code Act (Chapter 262), including section 19, which gives a court a broad discretion as to sentence and the terms on which it is imposed. And sections 49 and 50 allow rules and regulations to be made for carrying the Act into effect.
Until that is done, the terms of an order are a matter for the sentencing court.
The rights question
Section 1(2) lists the qualified rights the Act restricts, including freedom of expression (Constitution s 46), freedom of information (s 51), freedom of movement (s 52) and privacy (s 49).
An order banning a person from using electronic devices for years engages all of them. The declaration in section 1(2) is the Act’s compliance with section 38 of the Constitution, which requires a law restricting a qualified right to say so and to state the public interest served.
The proportionality of a particular order — especially against a child offender whose schooling depends on device access — remains a question for the sentencing court.
When a prohibition is the right sentence
- Where the device was the means. For a bullying or harassment offence, removing access addresses the offending directly.
- Where custody would be disproportionate. For a young or first offender, the prohibition offers a real sanction short of detention.
- Where the offender has specialist skills. For a cyber attack or hacking offence, a post-release prohibition addresses the risk of repetition — which is why the standard formula adds two years beyond the custodial term.
- Where a fine would be no deterrent. Division 4 allows the prohibition to be combined with both custody and a fine.
See also how cybercrime penalties are structured and fines for companies.
Sources
- Cybercrime Code Act 2016 — ss 1, 2, 3, 14, 22, 23, 27–31, 49, 50
- Constitution — ss 38, 46, 49, 51, 52; Criminal Code Act (Chapter 262) — ss 18, 19
- Juvenile Justice Act 2014
Before relying on anything here, read the current text of the Cybercrime Code Act 2016 and check for later amendments. If a decision matters to you, get advice — start with the Office of the Public Solicitor, or find a firm in the law firms directory.