In Re Nicholls [2004] CKHC 1; JP Appeal 06 of 2004 (7 May 2004)

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

JP APPEAL NO. 6/2004

IN THE MATTER of Section 76 of the
Judicature Act 1980-81

AND

IN THE MATTER of an appeal by LOUISA
NICHOLLS
Appellant

Mrs Browne for Appellant
Mr Elikana for Respondent

Date of decision: 7 May 2004

DECISION OF GREIG, CHIEF JUSTICE

The Appellant appeals against her sentence of two months imprisonment imposed upon her on a charge of breach of the probation terms imposed on her release on parole on 10 September 2003. The Act provides the maximum penalty of 3 months imprisonment or a fine of $40.00. There is clearly a wide disparity in that and the 3 months imprisonment or any imprisonment of course is for the more serious charges.

The Appellant was convicted on a charge of theft and sentenced to a term in effect of 18 months imprisonment on the 29th of August 2002. That term expired on the 28th of February this year. As she was entitled she applied for early release on parole, that was granted on the 10th of September 2003. The Parole Board in releasing her imposed conditions as to residence, work, abstaining from alcohol and not entering licensed premises and attending training workshops.

Under the Act that probationary license and the terms apply and extend to 9 September this year which is of course in excess of the period for which she could have been kept in prison as her original punishment. I have seen the Probation File on this appellant and have reminded myself and looked at the other files which relate to the original proceeding and of course the proceedings of her breach. There seems to have been some confusion as to the delivery to the Appellant at an early stage of the terms of the probationary license. She may well have been told them orally at the Parole Board hearing. What is clear however is that on the 5th of March this year, she received a copy of the terms and conditions and they make quite plain as to abstention from alcohol and not going to licensed premises. The events of the breach for which she was charged and sentenced occurred on the 3rd of April, only four weeks after she had been told what her situation was.

The summary of the events show that she was found in the licensed premises at about half past twelve in the morning, she was spoken to and displayed what is described as a no care attitude, refusing to leave. After twice more being asked to leave, she did leave. Shortly after she returned to the premises and was escorted out. The recommendation that was then made before the Justice on the breach charge was that she should serve the remainder of her supervision or parole term on community service. I have not seen any reasons for the Justices decision to sentence the Appellant to two months imprisonment. The question is whether that is an excessive sentence and included in that is whether it was appropriate in any event to sentence her to prison. I have already noted the peculiarity that these terms continued on beyond the term of her original sentence, but that is the law. The fact is that she knew and was quite recently reminded if that is correct, reminded or told the terms. This is a flagrant breach, a breach which was made all the more flagrant by its repetition and the reluctance to accept the advice of those who were asking her to leave.

Mr Elikana has reminded me of some of the principles of sentencing which are among role how to punish the offender to deter others who might be in the same situation and commits similar offences and to make public the view that breaches of the law are not to be ignored.

Having considered this matter with some care before I came into Court and since hearing Mrs Browne who I may say has said everything she can on behalf of the Appellant, I have come to the conclusion that it cannot be said that the sentence imposed is excessive. Whether or not I or another Judge or a Justice would have imposed the same sentence is beside the point. The question is whether it is too much and wrong, I believe that a sentence of imprisonment was appropriate and I cannot say and do not say that a term of two months is excessive. The appeal is dismissed.

CHIEF JUSTICE