In re Metuavaine Miri [1995] CKHC 7 (9 May 1995)

IN THE HIGH COURT OF THE COOK ISLANDS
HELD AT RAROTONGA
(CRIMINAL DIVISION)

IN THE MATTER of METUAVAINE MIRI

AND

IN THE MATTER
of the Crimes Act 1969 and Criminal Justice Act 1967

Counsel: Mr Mason for Mr Miri
Mr MacFadzien for Crown

Date: 9 May 1995

REASONS FOR SENTENCE

The Defendant appears for sentence on 19 charges, ranging from dishonestly getting into a motor vehicle to armed robbery. This is a case with some most unusual features and, as I have decided to follow a course which may be difficult for some members of the public to understand, I think it appropriate that I should record my reasons in writing and at some length.

I have been greatly assisted by a joint memorandum prepared by both counsel which set out the history of the Defendant’s offending and the nature of the punishment he has received. For present purposes I draw heavily on that memorandum.

The Defendant is now 25 years of age. He was first imprisoned on 5 March 1988 on a charge of unlawful sexual intercourse. He was sentenced to 18 months imprisonment to be followed by 18 months probation. On 22 March 1988 he escaped from custody and, when apprehended, was sentenced to a further term of imprisonment of one year with three months maximum security confinement. I should mention that there does not appear to have been any statutory authority for the order for confinement.

On 22 October 1988 the Defendant escaped again. He was apprehended about a month later and was then for a period of 10 months held in maximum security in conditions described in counsel’s memorandum as follows:

"(i) The Defendant was held in a cell for 23 and a ½ hours per day and released to the exercise yard for one half hour each day in order to do exercises.

(ii) During the day the mattress was removed from the Defendant’s bed so that he had only the metal base of the bed or the concrete floor to sit on.

(iii) The Defendant had no books to read and nothing else whatsoever that he could do with his time.

(iv) The Defendant was not given work to do while he was detained in the cell.

(v) The Defendant was held in a separate part of the prison from other inmates.

(vi) There was next to the Defendant’s cell one other cell in which an inmate was sometimes held but which cell was at times vacant for periods of up to three months while the Defendant was being held in the other cell.

(vii) The cell the Defendant was held in is in length and width approximately 8ft x 7ft.

(viii) There was a plastic bucket in the cell for the defendant to urinate and defect in.

(ix) Apart from a small opening on the cell door which looks into a small exercise yard surrounded by concrete walls and with a large metal grate covering it, no other natural light was able to penetrate the cell."

Following his release from the solitary confinement the Defendant escaped again and while at large committed 25 burglaries and was charged also with presenting a firearm. For these offences he was sentenced to 4 and ½ years imprisonment cumulative on sentences already being served. On a charge of assault within the prison he was sentenced to a further cumulative term of 12 months imprisonment. Between 20 December 1989 and 3 April 1990 (that is for nearly 5 months) the Defendant was held in the maximum security cell in the conditions set out above.

Not surprisingly, on the day of his release from maximum security he escaped again. He was apprehended about 4 weeks later but in the meantime had committed about 25 further offences for which he was sentenced to another 2 and a ½ years imprisonment. He was then held in the punishment cells for a continuous period of 14 months upon conditions described by counsel in this way:

"(i) The Defendant was held in a cell approximately 23 and a ½ hours each day;

(ii) During this period the Defendant was held in either one or other of two identical punishment cells;

(iii) Each cell was approximately 6 feet by 8 feet;

(iv) Each cell had no artificial light and the only natural light and the only natural light penetrating the cell was through a hole in one wall approximately 1 foot square;

(v) The Defendant during his period of confinement had only a bare concrete floor to sleep on;

(vi) Each cell was made up of damp, unpainted and dirty concrete walls;

(vii) The Defendant had during his incarceration only a bucket to urinate and defecate in and there was, apart from the clothes he wore, nothing else in the cell;

(viii) There was nothing the Defendant could do during his period of incarceration;

(ix) At all times the cell was either in darkness or in virtual darkness."

At the end of that period of 14 months the Defendant was transferred to maximum security and held under the conditions previously described.

On 6 June 1992 the Defendant escaped again but surrendered on 17 June. He was sentenced to 6 months imprisonment concurrent with existing sentences.

On three further occasions he escaped, namely 13 February 1993, 20 July 1993 and 25 September 1993 and it is for the various offences committed during those periods at large for which he has appeared for sentence. Between 5 October 1993 and 19 July 1994, a period of just over 9 months, he was held in maximum security on the conditions already described.

In April 1994 counsel for the defendant applied for an order of mandamus to compel the prison authorities to comply with the provisions of the Prisons Act 1967 and the Prisons Regulations 1968. The result was that on 19 July 1994 an order of mandamus was made by consent for compliance with the Act and Regulations, and the Defendant was released from maximum security. It is significant that he has made no further attempt to escape. Having regard to his existing sentences he is due for release on 2 September 1998 and so has about 3 years 4 months still to serve. The question now before the Court is as to the sentence which should be imposed for the 19 offences for which he is before the Court and to each of which he has pleaded guilty.

Counsel for the defendant has gone to considerable lengths to put his situation fully before the court, and in this he has been assisted by the co-operation of the Solicitor General. It should be noted that while most of the present offences are of a relatively minor degree, one is serious. That concerned an armed robbery. However, I am informed by counsel that the victim of that offence supports the submission for leniency in the treatment of the Defendant. It should be made clear that the total sentence for the present offences would normally be of the order of 10 years imprisonment, but the exceptional circumstances of the case make any such sentence out of the question.

It is necessary to refer to the statutory provisions under which a prisoner may be held in maximum security or in punishment cells. In the case of the Defendant the offences for which he was sent to maximum security or punishment cells were those of escaping and attention is therefore confined to that.

S.26 of the Prison Act 1967 prescribes offences against discipline which may be committed by prisoners and among these is escaping.

s. 27 gives the power to a Visiting Justice to hear and deal with offences against discipline. The Visiting Justice may decline to deal with the matter and direct that an information be laid in the High Court, in which case the sentence, under S.131 of the Crimes Act 1969 is a term of imprisonment not exceeding 5 years. If the Visiting Justice deals with the matter himself he may impose a penalty of confinement in a cell for any period not exceeding 15 days (S.27 (3)(c)).

S .28 gives the Superintendent of a prison the power also to deal with offences against discipline. In the case of escaping he may impose a penalty of confinement to a cell for a period not exceeding 7 days. It should be noted that Regulation 79 of the Prisons Regulation 1968 provides that every inmate sentenced to confinement in a cell "shall be given one hour’s exercise a day".

Regulations 80 authorizes the Secretary for Justice or a Visiting Justice to direct the transfer to the penal grade of any inmate who has on three or more occasions been found guilty of offences against discipline under S.26(1) or (2). Although the expression "penal grade" is not defined it appears from the context that this refers to the punishment cells.

Regulation 82 provides that any inmate transferred to the penal grade may be released by direction of the Secretary or a Visiting Justice, "and shall be so released at the end of three months if no direction has been given."

As set out earlier the Defendant has been held in the maximum security for three periods of 10 months, 5 months and 9 months respectively, notwithstanding that the maximum term permitted under the Prisons Act is 15 days if sentenced by a Visiting Justice and 7 days if sentenced by the Superintendent.

He has also been held in the punishment cells (penal grade) for a continuous period of 14 month, notwithstanding that the maximum period permitted by the Regulations is 3 months.

Moreover, during these periods he has been allowed half an hour’s exercise each day, notwithstanding that the Regulations prescribe one hour. In several other respects the provisions of the Regulations have not been observed.

I have inspected both the maximum security and punishment cells at the Arorangi Prison and confirmed that they are correctly described in the details set out above.

I have no hesitation in saying that the punishment inflicted on the Defendant has been seriously in breach of the human rights provision of the Constitution, and in particular of Article 65 which provides that no enactment shall be construed or applied so as to-

"(b) impose or authorise the imposition on any person of any cruel and unusual treatment or punishment."

The treatment of the Defendant has been, quite simply, a disgrace. His confinement for 14 months in a cell with no bedding or equipment of any kind (other than a bucket) and in almost total darkness for all but half an hour a day must be considered, at the end of the twentieth century, as a refinement of cruelty. It defies understanding how the Defendant was able to emerge from such an ordeal with his sanity. In a very long and close acquaintance with the criminal law I have never previously encountered such harsh and callous treatment. I have set out the circumstances in some detail in the hope that never again in this country should such treatment be given to any prisoner. I express the hope that the provisions of the Prisons Act and Regulations and the way in which they are applied will be carefully reviewed in order to ensure that this never happens.

The application of these remarks to the defendant is that allowance must now be made for grossly excessive punishment he has received in the past. It is little wonder that he showed a desperation in his determination to escape. Once he had done so that burglaries and other offences followed as of course.

I am informed that, since his release from maximum security, the Defendant’s conduct has shown a marked improvement. He has at last realized that he may have a normal future and considerable efforts have been made on his behalf, both by his own counsel and by the Solicitor General, to achieve a climate in which he can be absorbed back into the community.

The Defendant appeared before the Parole Board on 8 May 1995 when he was granted parole as from the time of his sentencing on the present charges.

On all of the charges the Defendant is sentenced to probation supervision for 2 years upon the conditions:

1. To live with his parents in Arorangi.

2. Not to leave the Cook Islands without the approval of the Probation Officer.

3. Not to associate with persons disapproved of by the Probation Officer.

4. Not to purchase or consume alcoholic liquor without the approval of Mr Brett Porter.

5. Not to enter licensed premises without the approval of the Probation Officer.

6. His wages to be under the control of Mr Brett Porter.

QUILLIAM C.J.