Mata v Queen [2000] CKCA 1; CA No 2 of 2000 (24 July 2000)

IN THE COURT OF APPEAL OF THE COOK ISLANDS
HELD AT AUCKLAND
CA2/2000

BETWEEN

JAMES ITI O TE RA MATA
Appellant

AND

THE QUEEN
Respondent

Coram: Sir Graham Speight J A
David Williams J
G D Carter J

Hearing: 11 July 2000

Date of judgment: 24 July 2000

Counsel: S McAnally for appellant
K Raftery for respondent

JUDGMENT OF THE COURT

[1] The appellant is a young man aged 18 years who pleaded guilty in the High Court to one charge of cultivating cannabis. He was sentenced by the Chief justice to 12 months imprisonment but has been granted leave to appeal. Apart from 11 days in prison pending application to the Court, he has been on bail awaiting hearing.

[2] The submission on appeal is that a monetary penalty should be substituted or, in default of that, a much shorter term of imprisonment be imposed.

[3] The facts are short. The appellant had found 11 small cannabis plants growing in an area near his house. He claimed he had not planted these but upon finding them he placed them in a box for some time, took them to another location further inland which would be less in public gaze, hid them for a while and then at a later date planted them and on several occasions revisited the site over a period of weeks, watering them and otherwise attending.

[4] There is no proof of sale by him, although he admitted that he supplied two of his friends with some leaves from the plants. Primarily this can be regarded as a non-commercial operation.

[5] On 9 December 1999 he pleaded guilty and was placed on bail. He was sentenced on 25 May 2000. He has been granted bail pending the hearing of this appeal, but he spent 11 days in prison pending the granting of bail.

[6] Two grounds are advanced; first that the High Court of the Cook Islands could and should take guidance from the New Zealand Court of Appeal decision regarding sentencing for cannabis. Those guidelines should be available and followed in the Cook Islands.

[7] The second submission is that on the individual facts, the imposition of a term of imprisonment was manifestly excessive.

[8] Great reliance was placed by the appellant upon the New Zealand Court of Appeal case of Terewi [1999] NZCA 92; [1999] 3 NZLR 62 where a young woman had been sentenced to two years imprisonment on a charge of possession for supply and 12 months on a charge of cultivation. It was submitted on her behalf that the two years imprisonment may be appropriate but it was sought to have that suspended; and that in respect of the charge of cultivation, there had only been one occasion when she had been observed, that she had no previous convictions, and was unlikely to re-offend.

[9] On appeal, particularly in respect of the charge of cultivation, the Court of Appeal took the time to analyse her case and a number of others who were being sentenced at the same period for varying charges relating to cultivation. These are not relevant for present consideration. Part of Ms Terewi's case dealt with on the question of the minor involvement in cultivation and to that extent has considerable similarity with the present case.

[10] The Court of Appeal took great pains, and much research was done by counsel on the pattern of sentencing which had developed over a number of years. Cases stretching back for upwards of 20 years were reviewed in its judgment and the Court set out a somewhat changed view from that which had prevailed in previous years. Very helpfully, it described three categories into which cannabis cultivation could be categorised, although conceding that in many cases there would be an overlap from one category to the other. Category 1 consisted of growing a small number of cannabis plants for personal use. Category 2 was of small scale cultivation for profit, and category 3 was serious cases of large scale commercial growing. It regarded Ms Terewi's case as being in category 1, namely of a small quantity for personal use and therefore at the lowest end of the scale, The appeal was in fact dismissed but one cannot avoid the conclusion that this was because she had concurrently been sentenced for supply of cannabis in relation to a somewhat substantial quantity of goods apparently grown elsewhere and without her involvement in the cultivation. Accordingly, against the facts of the case, the outcome is not particularly relevant. Had she only been convicted in respect of the minor cultivation charge she may have been more fortunate, but it would appear that as that aspect of her activities was considered to be in category 1, approval was given to procedures in non-commercial cases of comparatively smaller amounts where a monetary penalty would generally be approved, although by persistent offending in the same category a greater sum of money might be imposed, or even a short term of imprisonment.

[11] Counsel for the respondent in this case, Mr Raftery, accepts that one can look for guidance in the categories and procedures and the sentences imposed in New Zealand courts are of some guidance, but that it is inappropriate to regard the circumstances as parallel. It is notorious of course, that cultivation of cannabis is widespread within New Zealand, whereas it is fortunately still in its very early days in the Cook Islands. We are told that there have only been two previous cases of cultivation in this jurisdiction, and that in 1988 a term of imprisonment was imposed, but within the last year there has been one case where a monetary penalty was imposed.

[12] It is advanced very strongly by counsel for the Crown that the Cook Islands authorities are wishing to take firm steps to endeavour to suppress the possibility that cultivation will become a widespread practice, that it is in the early stages at this time and that the need for deterrent punishment against that background must figure very strongly in consideration of what sentence is appropriate. This viewpoint certainly seems to have been recognised by the learned Chief Justice in his remarks on sentence. He noted that it was a matter of great anxiety that offences for drugs are beginning to appear. It is obvious from his remarks that the deterrent aspect of what had occurred was to be particularly emphasised in this case, in an attempt to take early steps, which doubtless will be well publicised, to warn others that a strict view will be taken. In short it was to be clearly understood by the public that the cultivation of cannabis will carry a prison sentence.

[13] Mr McAnally, on behalf of the appellant, stressed the appellant's youthfulness at the age of 18, and that previous convictions had not been in the field of drugs but for burglary and breach of probation. He also made some references to family matters which it was suggested might entitle some indulgence to be given but we think balanced against the seriousness of the threatened increase in drug cultivation in this area, that must be disregarded. Counsel submitted that if the Court wished to send out a signal pertaining to this type of offence it could still do so through a lesser sentence.

[14] Against these submissions must be weighed the following:

[a] the fact that the offence was committed while the appellant was still under supervision following his previous conviction;

[b] That while the number of plants cultivated (11) was relatively small it was more than one would expect from someone who was simply curious and experimenting with the drug;

[c]that it could not be said that the drug was solely for the appellant's own use as he had made it available to others.

[15] The learned Chief Justice has had very great experience in the Cook Islands jurisdiction and must be taken as being extremely familiar with social conditions prevailing. After considering the nature of and circumstances surrounding this offence we agree that this was a case that called for condign punishment as a warning to others who might be tempted to indulge in this evil practice which, so it appears, may at the present be in its very early stages.

[16] For these reasons the Court accepts the submissions made that the sentence was appropriate, and the appeal is dismissed.