Police v Tutakimoa [2009] CKHC 24; CR629.2008 (10 July 2009)

IN THE HIGH COURT OF THE COOK ISLANDS
HELD AT RAROTONGA
(CRIMINAL DIVISION)
CR NO: 629/08, 480/09

POLICE

V

ALBERTA ORDAIN TUTAKIMOA

Hearing: 10 July 2009

Counsel: Mr Manavaroa for the Police
Mr George for the Defendant

Sentence: 10 July 2009

SENTENCING NOTES OF JUDGE GRICE

[1] Mr Tutakimoa, you are before the Court for sentencing on two charges. You have pleaded guilty to both of those charges. The first is a charge of burglary, which carries a maximum term of imprisonment of 10 years. The second charge is less serious, but nevertheless serious enough, and is a charge of cultivating cannabis. That is an offence pursuant to the Narcotics and Misuse of Drugs Act and carries a maximum penalty of 20 years' imprisonment.

[2] The cannabis offence seems to have arisen when the police searched your home looking for stolen property. During the search they found a small cannabis pot plant in the garden. Apparently this was only small and it is in the least serious category of cannabis cultivation offending that the Court's have set out.

[3] The Crown, however, says that these offences will not be tolerated in the Cook Islands and there needs to be a deterrent signal given to people who cultivate cannabis. However, a point in your favour is that you were sentenced to probation on the previous burglary in related offences in December 2008. Mr George originally sought on your behalf a discharge without conviction. He has now abandoned that in view of the burglary charge. He also submits that the offence should have been dealt with at that time, and it was only because the JP's did not have jurisdiction to deal with the matter, that it was not dealt with then.

[4] You were sentenced to two years' probation on those charges of burglary last year, with the first 12 months on community service; you were given a chance to turn things around. This offence of burglary is serious because it is the second one, not least. You took advantage of open windows and an open door, and it seems you were looking for money. You were at Manava Villas and on two occasions, took property. Although you expressed remorse afterwards and blamed yourself for your stupidity, it is clear that you knew what you were doing. You were simply subject, as the probation report says, to temptation and peer pressure, and it seems from what Mr George has just submitted, the need to get some money.

[5] You are now aged 21 years old, and your parents describe you as a bright young boy, but at some stage you found alcohol and got involved with sniffing glue and things like that. Your grandfather had hoped you would grow into a good person and a leader in the community. It seems that you are regarded as an intelligent person and you would have a good future before you if you could get out of this offending. Mr George tells me that he has tried to help you.

[6] In coming to the sentence on the cannabis charge, the Crown referred me to the case of Terewai which provides for three categories of cannabis cultivation offences. This is the least serious where the cannabis is grown in small quantities for your own personal use. Normally, this is dealt with by a fine or a non-custodial sentence. However, it seems, and the Crown advise me, that you are unable to pay a fine. You are already on probation, and there are no alternatives to a custodial sentence. Mr George initially suggested a discharge without conviction, but as I have said earlier, he has abandoned that submission.

[7] I will come to the imposition of a sentence on that charge shortly, but first turning to the burglary charge. As I have said, this is more serious; it is the second time you have appeared on this type of charge. The last was only six months earlier, or less than that, and you carry out another burglary.

[8] The Crown has submitted that a strong deterrent is needed, particularly in the Cook Islands where tourism may well be seriously affected by the number of burglaries on the island. There is great concern being expressed about what that will do to the economy.

[9] You are already serving a term of probation, so that in itself, has not proved an effective deterrent. The Crown say the statutory starting point for a sentence is two years' imprisonment. Mr George submits that one to two years may be appropriate as a warning and a deterrent.

[10] At the same time, I have got to take into account the fact that this was an opportunity taken. There does not appear to have been any premeditation, although that may well be doubtful about whether you were looking for money. There was no violence or threats. You pleaded guilty to the charge, which Mr George has submitted should be taken into account. The guilty plea is certainly a mitigating factor, as is your age. I must take into account all of these factors when I look at mitigation. Of course, I must also take into account the normal sentencing factors of denunciation, punishment and deterrence.

[11] The problem that arises with sentencing here is that you are currently serving a period of probation which does not appear to have proved a deterrent. It limits the options available to me now, and imprisonment is inevitable.

[12] I take as a starting point in relation to this charge, imprisonment for a period of 12 months. Taking into account the mitigating factors, you are sentenced to a term of imprisonment of six months on the charge of burglary.

[13] Turning to the charge of cultivation of cannabis. You are sentenced to a term of imprisonment of one month, to be served concurrently with the previous sentence of imprisonment.

[14] You are now standing at the crossroads and you have a chance to serve your term of imprisonment and then make sure you do something better.

Editorial Note: Derived from the Court’s electronic records and believed to be correct and final.