Hewitt v Cook Islands Police [2007] CKHC 2; HC JP App 2.2007 (29 June 2007)

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

JP APPEAL NO. 2/07

IN THE MATTER of Section 76(2)
of the Judicature Act 1980-81

BETWEEN

DANIEL HEWITT
of Rarotonga, Unemployed
Applicant

AND

COOK ISLANDS POLICE
Respondent

Mrs L Vakalalabure for Applicant
Senior Sergeant Howard for Respondent

Date: 29 June 2007

DECISION OF FISHER J

1. The appellant appeals against a sentence of 3 months imprisonment following his plea of guilty to a charge of common assault.

2. The relevant facts were, that at the age of 16 years the appellant was out drinking in the early hours of 17 March 2007. He was outside a bar in Rarotonga. The complainant was inside the bar. Both parties had been drinking heavily.

3. As the complainant emerged from the bar, the appellant punched him. The complainant fell to the ground where he remained in an unconscious state.

4. The appellant claims that the reason he punched the complainant was his concern that the complainant was threatening to hit the appellant's friend. However, self defence or the defence of another has not been advanced as a defence to the charge. It could not be suggested that the blow to the complainant was justified in law.

5. When the matter came before the Justice of the Peace for sentence, she had before her the fact that although young, the appellant had already acquired four serious prior convictions. In April 2005, he had been sentenced to 12 months supervision for burglary. Three months later he was sentenced on another charge of burglary for which he was sentenced to 8 months probation to be served concurrently with the existing probation.

6. Then a year later on 20 October 2006 the appellant was sentenced to 6 months community service followed by 12 months probation for receiving stolen property.

7. Four months later, he was sentenced to an additional period of 3 months community service on a further charge of burglary.

8. Finally there was an adverse probation report. The appellant was reported to be uncooperative with his parents and with those attempting to assist him in the community-based sentence.

9. No doubt the Justice of the Peace had those matters in mind when she indicated that the sentence of 3 months imprisonment would be "for his own good."

10. In this Court, Mrs Vakalalabure has advanced careful and thorough submissions in support of the appeal. I have been greatly assisted by them. She has traversed the aims and objectives of sentencing, in a particularly helpful way by reference to authority.

11. One of the most significant planks of her argument is the need for consistency in sentencing. In support she produced a lengthy list of sentences for common assault on other occasions. In none of those cases was a custodial sentence imposed. I take that into account. However for entirely understandable reasons, it was not possible to see the prior history of these other offenders, nor to view the circumstances of their assaults. One does not know, for example, whether in those cases the assault resulted in the complainant's unconsciousness nor whether those offenders committed the offence after a succession of other offences and a proven lack of co-operation in alternative forms of sentence.

12. Another of the points which Mrs Vakalalabure rightly emphasized, was the appellant's age. This is a matter which has given me great concern. Where the offender is as young as this, the emphasis should normally be placed upon rehabilitation rather than deterrence for the community at large. The hope is that for someone of this age, it is still not too late. The emphasis should be placed upon modification of the appellant's future conduct rather than making him an example to others.

13. The significant factor in the case however, is that every effort has already been made to modify the appellant's conduct through probation and community service. Sadly, that form of assistance to the appellant has been unsuccessful.

14. I acknowledge Mrs Vakalalabure's point that the appellant's prior offences were of a non-violent nature. On the other hand, they do seem to demonstrate someone intent upon a path of rejecting all societal requirements. Instead he has persistently preferred alcohol and irresponsible conduct.

15. In the end, it is not for me to sentence the appellant afresh. The question is whether the sentence imposed by the Justice of the Peace was manifestly excessive.

16. The Justice of the Peace clearly considered that everything else having already been tried with this appellant, a short sharp shock was the next logical step. I cannot say that in the circumstances of this case, that approach was wrong.

17. The appeal is therefore dismissed. The sentence will commence immediately. The appellant will therefore be taken into custody at this point.

Justice Robert Fisher