Police v Drollet [2003] CKHC 4; CR 299 of 2002 (21 November 2003)

IN THE HIGH COURT OF THE COOK ISLANDS
HELD AT RAROTONGA

CR: 299/02,376/02,377/02,
378/02,446/02,447/02
452/02,375/02

BETWEEN:

POLICE

AND

EDWARD VICTOR DROLLETT

Mr Elikana for Police
Mr George for Defendant
Date of Sentence: 21 November 2003

SENTENCING OF WILLIAMS J

Mr Drollett, you appear for sentence having been convicted of seven separate counts under Section 6 of the Secret Commissions Act and a single joint charge of forgery under Section 287 of the Crimes Act, the maximum penalty under the forgery charge is 10 years. As you know the penalty under the Secret Commissions Act is imprisonment not exceeding 10 years or a fine not exceeding $20,000 or both. The seriousness with which such offences are viewed by the Cook Islands legislature is apparent from a comparison of the comparative New Zealand provisions where the maximum penalty is only 2 years imprisonment. It is necessary so there is no misunderstanding to explain the elements of the offence under the Secret Commissions Act and I can do no better than refer to the summary given by the Judge in his decision. He said the elements of S. 6 are first that the Accused must be an agent of the Crown, someone in the service of the Crown holding any office. That person must corruptly accept a payment, corruptly is a word of straightforward meaning, accepting a payment, and that is equally straight forward. The important part is as an inducement or reward for having shown favour in relation to the business of the Crown.

The offence as defined is one which falls under the broad heading of governmental corruption or dishonesty. The legislature of this country has set its face against governmental corruption by imposing extremely heavy penalties against it. In that respect the government has aligned itself with almost all civilized countries of the world who in various ways are seeking to combat the insidious effects of corruption and I note for example that the General Assembly of the United Nations has recently adopted a UN Convention against corruption which is now open for signature by the member states. I am going to refer to what was said by the Secretary General when welcoming the adoption at that convention because as I’ll explain a little later, some people, especially those who provide references do not seem to understand the importance and seriousness of this kind of offence. The Secretary General in welcoming the adoption of the convention said that corruption was an insidious plague that had wide ranging and corrosive effects on societies, it undermined democracy and the rule of law, it distorted markets and could erode the quality of life for citizens. He said that this evil phenomenon was found all countries big and small, rich and poor but that in the smaller developing countries its effects were most destructive. It is doubtless because of that kind of thinking that the Government of the Cook Islands has taken a very strong approach to Secret Commissions and this Court has an obligation to apply the law always fairly and appropriately but it must take note of the signals given by the government, strong signals under the Secret Commissions Act.

Reported cases of corruption such as this are fortunately fairly rare but when they do occur deterrence becomes an important consideration. When we have cases such as this others who may be thinking of or tempted to engage in this kind of activity must know and understand that the law will deal firmly with such socially destructive behaviour.

This is a particularly sad case, it seems that you are as all have confirmed in your testimonials a highly regarded intelligent, motivated individual with a hitherto blameless record, you had made a significant contribution to Cook Islands society. If I could avoid a sentence of imprisonment on any proper basis I would willingly do so but when all the circumstances of your offending are taken into account, along with the public interest factors, and the strong message that is given to Judges by the Secret Commissions Act, it is impossible for me not to sentence you to imprisonment in spite of your many admirable qualities and in spite of the extraordinary support you received in the testimonials.

My duty therefore is to carefully assess the situation and try to find an appropriate term of imprisonment which fairly balances the interest of society as represented in the Secret Commissions Act along with those of yourself and your family and I understand very clearly that your family will undoubtedly suffer and has suffered your wrongdoing.

To assist me in determining an appropriate penalty in this case, I took the precaution of arranging to have produced to me the following, all of which I have studied very carefully. First of all the Judgment of Justice Smith of 7 November 2003. Secondly the detailed Summary of Facts which has been read out and which subject to the alterations I made is accepted by the Defence. Written submissions by the Crown which was read and also detailed Defence submissions and a pre-sentence report. I have carefully considered all of this material. I want to deal with the pre-sentence report because it’s important both as providing me a detailed personal history and an indication of your achievements, also the period about your character. You are described as a very hard worker whose management qualities often exceed expectations through good organization, professionalism, commitment, consistency, discipline and diplomacy and there is no doubt from this report and from your testimonials that you have performed exceedingly well in your official capacities. The other factors which I take into account are that your family will suffer because of your imprisonment and there will be financial difficulties because of your inability to run your business. I was troubled when I read the statement as follows:

"when spoken to Mr Drollett acknowledged his part in the offence, further stating that it was an error of judgment and did not intend for this look as it is."

Now, your counsel has expressed to me this morning that you have genuine remorse. I hope that is the case because I can tell that this was not something to be placed in the category of an error of judgment, it was a deliberate knowing breach of the Secret Commissions Act.

The assessment of the Probation Service is that notwithstanding your undoubted talents, you were placed in a position of authority, power, respect and trust and that you have undoubtedly broken the trust of your employer. I think that is undoubtedly the case, sad though it may be. I will be taking into account what the Probation Service describes as a very substantial contribution to the Cook Islands community. I do note the concluding observations of the Probation Service, that there is no excuse for what Mr Drollett has done, that being aware of his position in the public office and I note there is a recommendation for a custodial sentence.

Now, coming to the question of what the sentence should be, the Crown has referred to some New Zealand cases, we do not have an precedence here although the Benns case might possibly provide some guidance although the offending was over a much longer period and the amount much more significant and the maximum penalty available was 5 years for each charge and the Court would have looked at overall capability, the sentence was 3 years. The Crown have referred to other cases from New Zealand and there I refer to the Watson case and the Child case where in the case of Watson the sentence was 1 and ½ years imprisonment bearing in mind there’s a maximum of 2 years. I take into account Mr George’s observation that the offender there made it worse by trying to resist reparation but nevertheless there was 1 and ½ years imprisonment. The Child and Courtney case, the sentence was 18 months and 2 years. Perhaps the most helpful analogies are those of Cook Islands cases relating to forgery and theft as a servant and in particular the case referred to by the Probation Officer. The name of the accused is not given but it was a case in which the charges were forgery and theft as a servant and the Defendant was the sole supervisor on the island of Mauke. The sentence there was 2 and ½ years imprisonment to be served concurrently. There was another forgery case on a guilty plea where on 15.12.99 the JPs sentenced t 3 years imprisonment. My study of the cases available to me in the submissions, it led me to conclude in a tentative way before I came to Court that the starting point for offences under the Secret Commissions Act should be around 3 years and the submissions I’ve heard this morning from the Crown have confirmed me in that view, so that is the starting point. The question is, what effect on that starting point should be given to the aggravating and mitigating factors. The aggravating factors have been read out and I shall reproduce them in my sentencing notes, they have been read out and they are paragraph 14 of the Crown submissions. I won’t go over them again but the crucial elements are the position of high responsibility you had in government and the abuse of a position of trust in that position. There is also the fact that you influenced a younger and more impressionable person to offend and there is the lying when approached by the Commissioner afterwards. The amount of money I accept is not great although in this economy it is by no means insignificant, it is a significant sum of money but cannot compare with such cases as the Benns case.

I am prepared to accept that you realize the seriousness of your offending and I will disregard the statement in the Probation Report attributed to you that this was a merely an error of judgment. What are the factors for which you should be given credit. The Crown says there are not mitigating factors, that may be true in the strict legal sense but there are certainly factors which entitle you to credit and these are your prior unblemished record, your hitherto excellent character and the very great contribution you have made over the years in the Cook Islands Public Service. I also take note of your achievements as a parent and the excellent family which you have produced and also the fact that the penalty will impose considerable stress.

I have read each and every of the testimonials and apart from one thing that I will mention, they strongly support views that the Probation Service have expressed about your achievements. There is one troubling aspect of these, especially from high government officials. The troubling aspect was reflected in the submissions made by Mr George on your behalf that, to quote his paragraph 5, "local perception is that while there is revulsion to corrupt practices by officials, theft, breaking and entry in crimes involving violence are treated as far greater and more serious levels. The idea that these present charges are not as serious as theft and dishonesty is something which this Court rejects firmly. The Deputy Prime Minister for example, says "I do not treat what Edward did as of the most serious crime in our community, I treat theft and dishonesty as worse." The simple fact is that the maximum penalty for theft is 5 years and most of the dishonesty offences also carry similar penalties and I must say firmly as I can that I am not impressed with assessments by people in high places which tend to downgrade what Parliament has done by saying that these offences are not as serious as theft, others have said that, not just the Deputy Prime Minister, I find that Mr Piri’s testimonial and that of Mr Dan Kamana and it is a thing which I reject.

I now have to deal with the question of the penalty and in my judgment the appropriate penalty is 2 years imprisonment.

I must deal with the forgery charge. I accept the Crown’s submission that it cannot be taken as simply an immaterial element in your offending as the Crown submitted in relation to forgery charges, it was a deliberate attempt to impede the investigation in a sense that it was produced in the hope that it would deflect the investigation and I agree that it was a serious matter. I therefore not disposed to make the penalty on forgery a concurrent penalty deserves a separate penalty because it is a completely distinct matter, separated by years from the iron fending. In all the circumstances a term of imprisonment of 3 moths will be adequate to express the Court’s abhorrence of the way you acted in creating the false letter.

I have taken into account in fixing these penalties as I stressed that the level of offending is at a fairly high level. It is true that the amount is not great and it is true as Mr George has said that the offending only occurred over a 5 month period. I have to say that the suggestion of a discharge without conviction was totally unrealistic and bearing in mind the seriousness of the offending it is only your past Court record which has brought down the level of sentence from the starting point of 3 years. So on all of the Secret Commissions charges the sentence will be 2 years imprisonment to be served concurrently, on the joint forgery charge, the sentence will be 3 months imprisonment which will be served separately and cumulatively.

JUDGE