N3460

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CIA No. 89 OF 2008

GLENN LUCENA
Appellant

V

THE STATE
Respondent

Kavieng: Paliau, AJ
2008: August 18th
2008: September 4th

CRIMINAL LAW – Appeal against sentence – Principles of sentencing – Maximum penalty to be reserved for worst type of offences – Whether sentence manifestly excessive – Summary Offences Act, s. 25A (1)(a)(h), other sentencing options be imposed.

Cases cited:

William Norris v. The State [1979] PNGLR 605 (7th December 1979)
Gregory Kasen v. The State [2001] N2133, (15th August 2001)
Aruru Antar v. Pius S Nime [1975] PNGLR 296 (3rd October 1975)

Counsels:

Mr. M. Henao, for the Appellant
Mr. Rangan, for the Respondent

4th September, 2008

1. PALIAU, AJ:	This is an appeal against a decision on sentence of 4 months imprisonment with hard labour. The sentence was handed down by the District Court at Potzlaga on the 16th May 2008.

2. The Appellant pleaded not guilty to a charge brought under Section 25A(1) of the Summary Offences Act (the Act). He was found guilty and sentenced to 4 months imprisonment with hard labour. The charge related to being in possession of pornographic materials comprising 10 DVD CD’s that are indecent and grossly offend against the standard of decency. These DVD CD’s were confiscated from the Appellant’s room under a search warrant. 

3. Section 25A (1) of the Act provides:

"25A.	Possession, etc., of indecent etc., article. 

(1) A person who –

(a) has in his possession; or

(b) makes; or

(c) produces; or

(d) performs in making or production of; or 

(e) exhibits; or

(f) sells, 

An article or articles that –

(a) is or are blasphemous or indecent; or

(b) grossly offends or grossly offend against accepted standard of decency; is guilty of an offence. 

Penalty: A fine not exceeding K 2, 000.00 or imprisonment for a term not exceeding one year, or both."

4. The grounds of Appeal are:

(1)	The sentence was manifestly excessive in that –

(a)	the learned magistrate failed to consider or give any weight to the Appellant’s submission that he had not viewed the articles referred to in the information, and that the Appellant did not know that they contained pornographic material and had no physical means of viewing the articles as he had no DVD/CD or computer in his room where the articles were found.

(b)	The learned magistrate failed to consider or give any weight to the fact that the articles containing the pornographic material were found in the Appellant’s own private room and not readily available for public consumption.

(c)	The offence did not fall within the worst type of category and where a monetary fine rather than a custodial sentence would have been more appropriate. 

(2)	The learned magistrate failed to take into account normal sentencing principles when he failed to give any consideration to the fact that the Appellant was 55 years of age, and a good employment history and no previous convictions for any offences. 

(3)	The learned magistrate failed to take into account, when sentencing the Appellant, the Appellant’s early guilty plea and failed to give any discount or any proper discount to the Appellant for his early plea. 

(4)	The learned magistrate failed to consider or to adequately consider the fact that there was other sentencing options, such as a fine, or suspended sentence for an offence under Section 25A(1) of the Act.

5. I consider the above grounds of appeal can be reduced to just one ground and that is the sentence was manifestly excessive. It appears that the argument centres around the learned magistrate’s error as to the facts; taken matters into account which he should not have taken into account; failed to take into account matters which he should have taken into account; or given not enough weight or too much weight to a matter he properly took into account. 

6. The question then for consideration is; - Has the Appellant shown that an error occurred which has the effect of vitiating the learned magistrate’s discretion on sentencing? And is the error identifiable? If the error is identifiable, should the appeal be upheld?

7. It must be said at the outset that sentencing is a discretionary matter and the role of an appellate tribunal is restricted. The court in the first instance heard all the evidence and was in a better position to impose the sentence that it did. If this tribunal is to uphold the appeal, the appellant must show an identifiable error on the part of the learned magistrate which affected his sentencing discretion, see the Supreme Court case of William Norris v. The State [1979] PNGLR 605 (7th December 1979) per Kearhey, J.

8. The learned magistrate in his findings and reasons for decision canvassed the evidence that were produced and the basis of his arriving at the sentence of 4 months imprisonment. 

Consideration of the Grounds of Appeal

9. Did the learned magistrate fail to consider or give any weight to the Appellant’s contention that he had not viewed the articles and he did not know they contained pornographic material and had no equipment for viewing the articles?

10. The learned magistrate in his findings said the following in relation to the alleged error:

"In regards to the second issue although knowledge is not a defence under Section 25A of the Summary Offences Act, the defendant was accorded the right to be heard. That is why the court had to call evidence from both prosecution and the defendant in order to clear any doubts regarding the issue before this Court. 

Although the defendant raised that he had not seen the content of the 10 Compact Discs whilst in his possession, based on the nature and circumstances described in the evidence the court is certain that all along the defendant had had knowledge the ten (10) compact discs contained very explicit pornographic articles as some of the Compact Discs were labelled on the surface with colourful pictures of men and women performing explicit sexual acts. The labels on the CD’s appears to be very obvious that the defendant or any other person having cited the CD’s for the first time could easily tell or work out the content with out screening it. In addition according to evidence from both police and the defendant some of the CD’s were very visible as he had stored it away in his empty mobile phone box in his room. 

The defendant must understand here that having denied not viewing the articles or not having a TV Set, CD player or computer set or other accessories that would make it possible to view the articles does not distinguished the fact that the articles were found in his possession. Thus, he must take full responsibility for the charge he is charged with."

11. I consider that from the findings of the learned magistrate, the Appellant had not shown that the learned magistrate had made an error. That he did take into consideration the Appellant had not viewed the articles, he did not know they contained pornographic materials and no equipment for viewing the articles.

12. The learned magistrate in his findings found the Appellant although did not view the articles must have known they contained pornographic material. This is attributed to the fact that the articles were tendered as evidence and not objected to by the Appellant. The articles were clearly labelled on the surface with colourful pictures of men and women performing explicit sexual acts. The labels were clear and any person who cited the articles for the first time will know what the contents were all about without actually screening it. For a person of the Appellant’s calibre to claim that he did not know the articles contained pornographic material when the labels were conspicuous is unacceptable. 

13. Did the learned magistrate fail to consider or fail to give any weight to the fact that the articles containing the pornographic material were found in the Appellant’s own private room and not readily available for public consumption? 

14. The learned magistrate in his reasons for decision stated that:

"The defendant must be reminded here that there is no clause in the law which says that you may have it in your possession for your own use."

15. The offence in which the Appellant was charged with was in possession of pornographic material. He was not charged for making, producing, performing, exhibiting or selling. The offence of possession can be clearly distinguished from making, producing, performing, exhibiting or selling of pornographic material. 

16. There was no evidence that the Appellant was making, producing, performing, exhibiting or selling pornographic materials. He was found guilty of possessing articles that grossly offends or grossly offend against accepted standards of decency. 

17. These articles were found in his private room and perhaps for his private consumption. It was not for public consumption. There was no evidence that he was screening them in public. In fact they were kept in his private room and he did not have the means to screen them. In the words of Kirriwom J., in the case of Gregory Kasen v. The State (2001) N2133 (15th August 2001): -

"From the public perspective, it could be argued that the learned magistrate failed to give sufficient weight to the nature of the offence, in view of the fact that this type of offence is often committed in private in the privacy of one’s own home. No one is offended, however obscene or indecent the article(s) or pornographic materials may be because they are not for public consumption. The offence is primarily one of monetary fine rather than a custodial sentence. For this kind of offence, prison should be the last resort. In fact this is not the worst case of its kind."

18. See also the case of Aruru Antar v. Pius S Nime [1975] PNGLR 296 (3rd October 1975), in relation to the attitude of public towards a particular type of offence, per Edmunds, J.;- 

"The attitude of the public towards a particular type of offence is not a matter which should weigh heavily in determining penalty; it is a matter for the legislature to prescribe penalties for offences. If Courts are to attempt the exercise of determining public sentiment or reactions to particular offences before deciding the appropriate penalty an entirely new approach will be necessary in the administration of the criminal law."

19. I consider that the learned magistrate made an error by failing to consider or gave less weight to the fact that the articles were found in the Appellant’s own private room and not readily available for public consumption. 

Did the offence fall within the worst type of category and where a monetary fine rather than a custodial sentence would have been more appropriate? 

20. An offence of possession of pornographic material in my mind is not the worst type of category of offence, compared to production, sale, performance, making and exhibiting. In particular when public consumption is not an element. I think that the only time that we should all be concerned about the moral standards of decency is when the community and the public at large are at risk, in the sense that these articles are openly exhibited in public. Mere possession of articles in the privacy of one’s home does not in my view amount to the worst category of offence. See the case of Gregory Kasen v. The State, per Kirriwom, J above. 

Did the learned magistrate fail to give any consideration to the fact that the Applicant was 55 years old, had a good employment history and no previous convictions for any offence?

21. The learned magistrate did consider the Applicant as a first offender and consider his plea for leniency when deducting 3 months from the 7 months that he imposed. I think the learned magistrate did not make an error. 

22. Did the learned magistrate fail to take into account the Appellant’s early guilty plea and failed to give any discount for his early plea?

23. From the learned magistrate’s judgment, it is noted that the Appellant pleaded not guilty to the charge and raised the defence that the articles was given to him by a friend who bought a TV set from him. He did not know they were pornographic articles. 

24. I think the learned magistrate was not entitled to consider the Appellant’s guilty plea as he did not plead guilty. There was nothing to consider by way of any discount. 

Did the learned magistrate fail to consider or adequately consider that there were other sentencing options, such as a fine, or suspended sentence for an offence under Section 25A(1) of the Act?

25. The penalty for the offence under Section 25A(1) of the Act are a fine of K 2, 000.00 or imprisonment for a term not exceeding one year or both. It is either a non-custodial sentence or custodial sentence. There are options available to the learned magistrate to choose from, like a fine or suspended sentenced. However, the learned magistrate imposed a custodial sentence which he was entitled to as it was within the ambit of Section 25A (1) of the Act. 

26. Taking into account the above discussions in relation to whether the articles were for private or public consumption. I consider the most appropriate option was for a non-custodial sentence. 

27. The offence of possessing is not so serious as producing, exhibiting, selling, making or performing in the making or production of the articles. Thus, it does not call for a custodial sentence. For this kind of offence, prison should be the last resort: Gregory Kasen v. The State, per Kirriwom, J. 

28. All in all I am of the view that an error has occurred which has affected the learned magistrate’s discretion on sentencing. The identifiable error is that the learned magistrate placed too much weight on the deterrent aspect of sentencing then rehabilitative aspect because of the continuing commission of the offence by other members of the public. 

29. The learned magistrate also placed too much weight on the effect of such an offence on the public when there was no evidence before him to prove that members of the community and public had viewed the articles and there was a greater risk of the Appellant continuing similar offences in the future. For this reason the sentence was manifestly excessive. 

30. For the above reasons the appeal is upheld. The sentence of 4 months imprisonment is quashed. Sentence is substituted for the time already spent in custody. 

31. My orders are: -

a.	The appeal is upheld; and 

b.	The Sentence imposed by the learned magistrate is quashed and substituted for the time already spent in custody; and 

c.	The Appellant’s passport shall be released to him forthwith; and 

d.	The K1, 000.00 bail monies be refunded to the Appellant forthwith.

Ordered accordingly, 

Blake Dawson Waldron Lawyers: Lawyer for the Appellant 
Public Prosecutor: Lawyer for the Respondent