Gregory Kasen v The State (2001) N2133

• Jurisdiction: Papua New Guinea
• Judge: Kirriwom J
• Judgment Date: 15 August 2001
• Citation: (2001) N2133
• Court: National Court
• Year: 2001
• Judgement Number: N2133

Full Title: Gregory Kasen v The State (2001) N2133

National Court: Kirriwom J

Judgment Delivered: 15 August 2001

N2133

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

APP. 21 OF 2001

GREGORY KASEN — Appellant

vs.

THE STATE — Respondent

Lae: Kirriwom, J

2001: 6 & 15 August 2001

APPEAL — Sentence — District Court — Pleas of guilty — Possession of indecent articles — Sentence of imprisonment excessive — Over-emphasis on prior convictions of similar nature — Insufficient weight on circumstances of mitigation — Summary Offences Act Ch. 264, s.25A(1)(a).

Appeal — District Court — Simultaneous possession of three different articles — Multiple charges of being in possession of indecent articles — One single transaction — Three similar charges — Charges bad for Multiplicity — Proceedings were a nullity — Different articles constitute circumstances of aggravation only — No separate offences created — Miscarriage of justice — Convictions quashed — Appeal upheld.

Inferior Court — District Court — Practice and Procedure — Information — Charge to state adequate description of the offence in terms of the section and subsection creating the offence — Statement of facts on reverse side of information to state only the factual matters constituting the charge.

Inferior Court — District Court — Practice and Procedure — Right to fair trial — Neutral and impartial tribunal — Publication of defendant's prior convictions before trial begins — Improper practice — Disclosure of previous convictions only on sentencing — Denial of justice and fair trial.

Appellant, a lecturer at University of Technology, was convicted on three counts of being in possession of articles that were considered to be offensive to public morality and standard of decency of ordinary people which is an offence under s. 25A (1) (a) of the Summary Offences Act Ch. 264.

These articles consisted of video tapes, computer floppy-disks and also computer CDs containing pornographic pictures and materials.

The appellant pleaded guilty to all three counts and sentenced to six months concurrent on each count. He appealed against severity of sentence initially, but subsequently amending the notice of appeal with leave of the court to include appeal against his convictions.

It was noted at the hearing of the appeal that the appellant had two priors, one for similar offence; there was a single transaction of being in possession and there was only one raid of the appellant's house under a search warrant resulting in the seizure of the pornographic items and that the appellant's culpability was predetermined by early disclosure of his prior convictions stated on the reverse side of the information containing the charge.

Several issues were identified and discussed, including, inter alia:

1. Whether the charges laid were bad for multiplicity?

2. Whether there was over-emphasis on the prior convictions aspect and insufficient weight on factors in mitigation?

3. Whether the early disclosure of the appellant's prior convictions to the presiding magistrate before the appellant was asked to admit or deny the truth of the charge(s) against him amounted to an unfair and predetermined hearing likely to lead to miscarriage of justice?

Appeal upheld. Detailed discussion and Reasons for decision are in the judgment.

Cases cited:

1. Chia He Jia and Huang Ming Xian v Gisa Komagin — App. 357 & 358 of 1997, March 30, 1998 — Unreported National Court Judgment (N1702)

2. John Worofang v Patrick Wallace [1984] PNGLR 144.

3. Tapopwa Thomas vs. The State [1979] PNGLR 140

4. Hure Vabubu vs. Nelly Maleva [1987] PNGLR 87

Texts

1. Blacks Law Dictionary 6th edition

Counsel:

Mr P. Ousi for the Appellant

Mr N. Miviri for the Respondent

D E C I S I O N

15 August 2001

KIRRIWOM, J: The appellant pleaded guilty to three charges brought under section 25A(1) of the Summary Offences Act Ch. 264 and was convicted and sentenced to six months imprisonment on each count ordered to be served concurrently. The charges related to being in possession of some pornographic materials comprising video cassettes (3), floppy computer disks (5) and a CD containing digital video of obscene viewing which were contrary to the society's standard of moral decency. All these items were confiscated from the appellant's house under a search warrant.

The offence

Section 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 the making or production of : or

(e) exhibits; or

(f) sells, an article or articles that —

(g) is or are blasphemous or indecent; or

(h) grossly offends or grossly offend against accepted standards of decency,

is guilty of an offence.

Penalty: A fine not exceeding K2000.00 or imprisonment for a term not exceeding one year, or both.

The Charges

The three charges were worded in similar terms:

1. "Did had (sic) in his possession two (2) articles namely video cassettes that is against accepted standard of decency,

Thereby contravening section 25A (i) (b) of the Summary Offences Act. Ch. 264.'

2. 'Did had (sic) in his possession an article namely an ELECTRO SEX compac disc, digital video that is against accepted standard of decency,

Thereby contravening section 25A (i) (b) of the Summary Offences Act Ch. 264.'

3. 'Did had (sic) in his possession five (5) articles namely floppy computer disk that is against accepted standard of decency,

Thereby contravening section 25A (i) (b) of the Summary Offences Act Ch. 264.'

The appellant appealed to this Court initially against the severity of sentence. When he appeared at the hearing of his appeal on 6th August 2001 his counsel applied for leave to amend the Notice of Appeal to include an additional ground challenging his conviction as well. Leave was granted and his fresh ground appears as ground 1 below under grounds of appeal.

GROUNDS OF APPEAL

The grounds of appeal, as amended, are:

1. The learned magistrate erred in law and in fact in:

(a) Proceeding to hear the information when the Information was defective and bad in law when:-

(i) The wording of the charges did not include an essential element of the offence being "grossly"

(ii) The charges pleaded guilty to did not disclose an offence known in law especially the Summary Offences Act.

(iii) The charges under Section 25A (i) (b) relate to 'making' and not in possession of pornographic materials and does not disclose an offence.

2. The sentence was manifestly excessive in the circumstances that the Magistrate erred in law in taking the three Information as three different offences as all three offences were brought under the same action and the offence occurred on the same date.

3. The learned magistrate failed to consider or put any weight to the Appellant's submission on sentence.

4. The learned magistrate erred taking the previous conviction out of context in that the similar offence occurred in 1999 and the conviction on assault related to family disputes.

5. The appellant's offence does not fall into the worst type category.

6. The sentence was manifestly excessive.

Appeal against conviction

The appellant challenged his conviction on procedural errors including the failure to describe the charge in the term or adjective used in the section vis-a-vis 'grossly', and citing wrong subsection of the section that creates the offence.

The charge simply states that of being in possession of (the items complained of) that is against the standard of decency. With the inclusion of the word 'grossly' as submitted by counsel, the charge should read ''being in possession of (the items complained of) that grossly offends against the standard of decency or accepted standard of decency". It was submitted that because the charge was not properly amended to include the word "grossly", the charge as it stood did not disclose an offence and the appellant was convicted for an offence that never existed in law. This argument, just like the other related submissions premised on similar grounds must fail. The appellant knew exactly why he was in court, he read the charge and understood it before he pleaded to it. He was not an illiterate person. In Jacob Prai & Anor v PNG [1979] PNGLR 247 the Supreme Court said at p. 250:

"The appellants were under no illusion as to the nature of the...