Police v Tekoronga [2010] CKHC 15; CR 565 of 2010 (3 December 2010)

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

CR NOS. 565, 575, 583 and 584/2010

POLICE

V

BOBBY TEKORONGA

Hearing: 3 December 2010

Counsel: Senior Sergeant T Howard for the Police
Mrs T Marsters appearing on behalf of Mr C Petero for Defendant

Sentence: 3 December 2010

SENTENCING NOTES OF GRICE J

Solicitors:
Senior Sergeant Teinaki Howard, Police Prosecutor, Avarua, Rarotonga
C Petero

[1] Mr Tekoronga, you are bsentencntenced on four charges altogether, two of receiving, which have a maximum term of imprisonment of one year; one of possession of cannabis, which has a mm term of imprisonment of two years and/or a $5,000.00 fine fine; and being party to an offence, which has a maximum term of imprisonment of two years. So they are all quite serious offences.

[2] I note that you were sentenced by Justice Williams on 10 September 2010 on onegchar cultivatinvating cannabis. On that occasion the Judge noted that you pleaded guilty at the first possible opportunity, which he took into account. He also noted that you were going to be leaving to go to Australia on an apprenticeship that your uncle had organised. The Judge gave you the benefit of the doubt and said if you offended again, particularly in that sort of way, you would almost certainly go to jail. On that occasion he discharged you without conviction. After he had passed sentence it was brought to his attention that you had the breath alcohol offences which he did not know about originally. But he decided to stick by his previous decision and discharge you.

[3] For this matter the difficulty is that the offences all predate Justice Williams' sentencing, but given the extra offences I have to pass sentence on you on those particular offences. I am just going to go over the factual background.

[4] The receiving charge relates to receiving a bottle of wine which you drank with friends. It does not sound as though you were part of the initial theft or obtaining the wine - you just shared with them in the drinking of it, but you thought it was probably stolen or similar. You have offered to pay the Sails Restaurant compensation for that.

[5] On the possession of cannabis offence, this occurred about the same time as the charge on which you were sentenced by Justice Williams. I note from Ms Marsters' submissions,ared ared by Mr Petero, that thes an attempttempt by you, assisted by your mother, to come clean about that cannabis offence. Mr Petero suggested to yat yon it over to the Police immediately. So counsel asel approached Senior Sergeant Manavaroa aroa and advised him that you and your mothre going to retrieve the cannabis and bring it to the Police Station that morning. Unfortunortunately, before that could happen the Police had executed a search warrant and found this cannabis. So I propose dealing with that as if it was part of the earlier charge of cannabis that Justice Williams dealt with, because it was all part of the same incident and you came forward about it – although as it happened it did not stop this charge being laid.

[6] Finally, you have been party to an offence of theft which relates to two motorcycles which you took parts off. One of them was a motorcycle which was the property of Mr Tekopua of Matavera. That motorcycle was valued at $1,000.00. Mr Dominique Taru was the primary offender and the allegation is that you assisted him in that offence. The other offence is the theft of a Yamaha Spark motorcycle valued at $2,000, which was thperty of Mr Tetava. In that case the allegation is that yout you aided and abetted Exham George in the theft of that motorcycle.

[7] So there is an array of offences which does not do you proud at all, and I can well understand why your mother is so upset. She has done everything she can to try and get you through this. She did the right thing trying to come clean with the cannabis offences, and I will certainly be taking that into account.

[8] However, when I am sentencing I have to take into account a number of things. I have to take into account making you accountable for what you have done, so you cannot keep on offending thinking nothing will happen. I have to try and promote a sense of responsibility - the community demands that crimes are punished; and that the community is kept safe. I have to take into account issues such as reparation, which we have talked about, and deterrence from other people, as well as you, committing more offences. I have to take into account the interests of the victims of the offences, which in this case included the restaurant. It included the two people who owned the motorcycles. More importantly, I have to take into account your rehabilitation in the hope that this is going to be the last time that you come before this Court.

[9] Some of the principles I need to look at, and these have been the subject of submissions by your counsel, are how serious was the offending. In this case the receiving seems at the minor end of the spectrum. The fact that there are two aiding and abetting offences in relation to motor vehicles makes them more serious, and the cannabis offences, as I have said, I propose grouping with the earlier cannabis issue that Justice Williams dealt with.

[10] The sentence that I impose has to be similar to other sentences that are imposed so that people know in general what will be expected from the Court. But every situation is different and every fact is different. I have to take into account the affect on your victims, and I have to impose the least restrictive sentence that is appropriate in the circumstances.

[11] I also take into account your family, whanau, community and background, and you clearly have got a very supportive mother who is here today, and other family members. You are only 18 years of age which I need to take into account. You have your whole life ahead of you, and the way you are going you are going to end up in jail which is not a good way to end up. You are living at home and clearly, as I have said, your mother is very supportive. The reports tell me that you have got good potential if you do not waste it, and that you are a quiet and humble man. You have been cooperative and very remorseful. You are employed part-time doing chores, and you hope to have the opportunity to travel overseas, although that has not happened yet. I note that you were a security officer during the recent Vaka Eiva competitions and you did very well. You were getting about $200-$240 a week. Your mother has been paying your bills. You are very lucky to have her. And your family has asked that you be given a chance.

[12] The Probation report confirms all of those things and suggests that you be placed on 12 months' supervision wie fire first eight months on community service with special conditions. The Police have submitted that they suggest probation and six months community service al. The prosecution also seeks return of the property and annd an Order to destroy the cannabis. Your counsel has submitted that there should be a discharge without conviction.

[13] Because of the number of offences and the fact that you have two previous breath alcohol offences and a variety of offences, I cannot discharge you without conviction on all of these offences. That would be contrary to the overriding requirement of the community in these types of sentencing. However, on the cannabis charge I am treating that as if it should have been before Justice Williams at the time.

[14] In those circumstances, and given that you and your mother tried to get this dealt with at the time, I'm going to discharge you without conviction on the cannabis charge.

[15] On the receiving charge and on the party charges I am going to convict you and order you to undertake six months probation. I am going to sentence you to 12 monthobation with six monthmonths community service, and on the conditions that are sought by the Probation Services as follows:

1. that yoat you are to abstain from the consumption and purchase of any liquor or any drugs;
   
2. that you are not to enter any licence premises including club houses; and
   

100. that you are to attend any training or workshop programme as directed by the Probation Officer.
     

[16] That sentence of probation is on each of the offences of receiving and being a party to the offences. That sentence is to be served concurrently.

[17] I make an Order for a return of the motorcycle parts that were confiscated as a result of the theft.

[18] I make an Order for the destruction of the cannabis.

[19] I make an Order for reparation in relation to the motorcycle referred to CRN 583/2010 of $2.

[2r> [20] I make an Order for reparation in relation to the motorcycle referred in CRN 584/2010 of $500.00.

[21] I note that the Defendant has paid the sum of $38.00. That has been confirmed by Ms Marster the Defendant's mots mother – so I make no Order in relation to that reparation as you have already paid it.

Grice J