Police v Kapam [2008] PGDC 143; DC4086 (28 April 2008)

DC4086

PAPUA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE]

DCCr. 193 of 2008

BETWEEN

Police

Informant

Wakon Kapam
Defendant

Lihir: S.Lavutul
2008: 23^rd, 24^th, 25^th April

CRIMINAL LAW – Summary Offences Act- Section 25A (1) (a) (h), Possession of Pornographic Articles That Grossly Offend Against Accepted Standards of Decency.

Cases Cited
Nil

References
Summary Offences Act, s 25A (1) (a) (h)

Appearance
Cathy Odis for Police
Defendant appeared in person

SENTENCING

28^th April 2008.

Samuel Lavutul, SM, The defendant appeared before this court on a charge under Section 25A (1) (a) (h) of the Summary Offences Act for being in possession of articles that grossly offends against accepted standards of decency.

2. It was alleged by police that on the 22^nd of April 2008, defendant Wakon Kapam, age 38 of Buseng village, Fincshaffen, Morobe Province, did have in his possession three (3) pornographic DVD CDs (in his personal locker/cupboard) at the SAL office at Lihir, New Ireland province.

FACTS

3. That on the 22^nd day of April 2008 police acting on reliable information that the defendant was in possession of pornographic articles, applied for a search warrant from the court and conducted a search at the defendant’s personal cupboard at the SAL Office at the Lihir Gold Limited Plant Site. Upon the search police and Lihir Gold Limited Security Officers confiscated three (3) DVD CDs which contains very explicit pornographic movies.

4. The defendant upon interrogation by police over the confiscated items admitted having possession of it. The defendant admitted to having received the articles from a European Crew member on an overseas
vessel which docked at the Lihir Plant Site wharf whilst he was on duty at that time in about late March 2008.

Plea

5. The defendant entered a plea of guilty to the charge of possession of pornographic articles.

Findings

6. Based on the defendant’s admission and supported by the evidence tendered before this court the charge against the defendant is proven and defendant is found to be guilty as charged.

Antecedent

7. Defendant is a first offender, married with 3 children, employed by SAL, Lihir as crane operator.

Allocutus

8. Defendant stated he was sorry for what he did and he pleaded for leniency in that he was married with three (3) children and a first offender.

9. In reply prosecution through Prosecutor Cathy Odis submitted for the court to impose a penalty which will stand as a deterrent against such offence. She insisted the offence the defendant is charged with is prevalent in the country and specifically Lihir. In addition, she submitted such offences are now frequenting the head lines in the media that is on TV, radio and newspapers. Such offences have cause many families to break with problems.

Reasons

10. Despite the defendant’s clean record as a first offender with a no previous convictions and a family man, the defendant must understand that he did not only possess the articles but he also assisted in the smuggling of such prohibited articles unnoticed by customs officials at the wharf into the country and particularly Lihir. Even though the defendant was fully aware of the prohibited articles he totally failed to act responsibly as a citizen in order to report the matter to the customs officers on site. However he decided to conceal it and kept it.

11. Although the court is at liberty to either consider or not consider placing weight on the pleadings for leniency by the defendant, it must also consider the community’s stand against such crime/offence and at the same time do justice.

12. In the last couple of months the issues of possession, production and circulation of pornographic articles have become a community concern nationwide and particularly Lihir. NGOs, Churches including some of our national leaders have voiced their concerns over such offences. In addition, the last three convictions by this court for similar offences in a space of three weeks have gone unnoticed by the defendant; such should have served as a warning or deterrent to others and including himself. Thus, is a sign of outright ignorance on the part of the defendant thinking that he won’t be caught.

13. 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.

14. Pornographic articles have invaded family homes, offices both private & public, and worst of all some of our national learning institutions.

15. Pornography have lead to other law and order and social issues, such as extra marital affairs, crime of incest, rape, sexual penetration of minors and the lack of respect particularly for our women folk. In addition, pornography is a threat to society and in particular the family unit.

16. The court understands pornography is not part of our culture, but has been introduced illegally in the manner which the defendant is held for.

17. With the demand of the community against such crime the court gives secondary consideration to the defendant’s plea for leniency. I consider custodial sentence is the appropriate penalty which will stand as a deterrent to those who would be likely offenders and particular to those of us who are fathers to our children, husbands to our wives and above all bread winners for our families.

18. Being a father or mother to children, being employed and the only bread of the family should be used in our everyday life as a yard stick to measure our actions and activities. The defendant totally failed to consider these things and allowed himself to be involved in such illegal activity. The defendant should consider himself to be a dishonest person to his wife and children.

19. Although the maximum custodial penalty for such offences is twelve (12) months, I consider and imposed the following;

1. That the defendant is convicted and sentenced to seven months in hard labor.
2. However, because the defendant pleaded guilty, a first offender and pleaded for leniency three (3) months of the seven months sentence is deducted and the defendant is to serve four (4) months in hard labor.
3. That all exhibits are forfeited to the state and will be destroyed within 30 days.
4. Defendant’s bail monies are refunded.
   

Cathy Odis for Police
Defendant appeared in person