Police v Kamana [2010] CKHC 22; CR 591 of 2010 (10 December 2010)

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

CR NO. 591/2010

POLICE

V

MARCUS KAMANA

Hearing: 10 December 2010

Counsel: Senior Sergeant T Howard for the Police
Mr N George for Defendant

Sentence: 10 December 2010

SENTENCING NOTES OF GRICE J

Senior Sergeant Teinaki Howard, Police Prosecutorrua, Rarotonga
N George, Norman George & Associates,ates, Avarua, Rarotonga

[1] Mr Kamana you are 36 years of age and today you appear on a number of charges relating to the possession and use of cannabis. The earlier charge relates to an offence in 2009 when you were charged with possession of cannabis. That occurred on 9 Ja 2009. You initiallyially pleaded not guilty to that and today, as a result of your talking to the Police about wanting a clean slate, you have pleaded guilty to that charge and it is befe thining. You have alve also pleaded guilty and are up for sent sentencing on another possession of cannabis charge, which relates to far more recent offending in October of this year. In addition, you are charged with some older offences under the Arms Act. First, a charge of unlawful possession of a firearm which occurred some time ago; and, secondly, a charge of possession of an unregistered firearm.

[2] You have said to the Police that you want to make a clean slate and that is why you want all the charges dealt with today. The Police have been receptive to that approach and have indicated in their submissions that it is an appropriate case for you to be given a chance.

[3] Mr Kamana, the most recent charge relating to cannabis happened while you were on holiday in Atiu in October 2010. It sounds as thyou weou were just having a party and enjoying yourself. Ho, all of those charges are relatively serious, particularlylarly in the Cook Islands. On the charges of possession of cannabis, for ef them you could go to jail jail for five years. On the firearms charges I am told that you found this firearm in 2008, so there is no question of any action that would attract a more serious charge than that which you are being charged with today. But the incident that drew the Police's attention to your possession of these firearms sounds to me as though it may have been serious and you are just lucky something worse did not happen.

[4] What happened was that you went to get a firearm when you were at a party. You said it was to protect you. It sounds as though you were drunk. You went back to the party and you took the firearm with you. It is just really lucky that nothing worse happened at that party. You said that when you had found the firearm you had used it since to shoot pigs and chickens, and I understand that that is quite a common use of 12 gauge firearms in the IslanIslands. You should have handed it in, and your counsel has acknowledged that. You found the property and took advantage o The penalty involved under the Arms Ordinance Act for those charges are fines of $100 maxi maximum.

[5] Mr Kamana, I listened with inth interest to the submissions from the Police and from Mr George. It seems to mt you you are very lucky t that you have all the support that you do have, and that the prosecution has been receptiveptive to your approach.

[6] I ho take into account a number of things in sentencing. I havI have to take into account the fact that people just cannot go around and commit offences and not be accountable for them. I have to promote a sense of responsibility, and also make sure that the community knows that people are being held responsible for their actions. I have got to take into account the interests of any victims in an offence. In this case luckily it does not look as though there were any victims, other than society at large. I take into account reparation, which is not particularly relevant in this case except for the forfeiting of the firearm. I have to take into account denunciation and deterrence, as well as the protection of the community – especially in drug offences.

[7] The seriousness of the offence is important, and because there are two offences it puts this into a different category than what I was looking at earlier, but I understand that it is a clean up operation. And I also take into account your personal circumstances and the need to promote rehabilitation and, if you really want to have a fresh start, on this occasion to give you a chance.

[8] I particularly take into account that you made an early guilty plea on two of the charges and then made an arrangement with the others. You are remorseful. You have a loving and supportive family who have spoken through the Probation report. The fact that your Uncle George is your lawyer and supports you as well. The family rely on you for support, I see, particularly for financial support.

[9] I note that you are guaranteed a job according to your counsel's submissions, and that you are a very good builder. I particularly take into account the testimonials that I have been handed up and are accepted by the Police. The testimonial from Mr Maggie the MP, who gyou a gu a glowing reference as a builder and supports you. From Pastor Tangi, who tells me about your sports background and that you are academically gifted and received a scholarship to go ti. That you are pleasant, rnt, reliable, and that you come from a respectable family. From Dave Ruther for whom you have worked several times as a builder, who thinks you are a good worker and a good person and would employ you again. And from Gordon Murray, a carpenter for whom you have worked before, who says you are a good worker. So you have plenty of support.

[10] The submissions that I have heard have suggested that the most appropriate manner of dealing with all of these offences is to impose a term of 12 months' probation some spec special conditions. The first six months to be on community service and the special conditions to apply are:

1. to abstain from the purchase and consumption of alcoholic liquor;
   
2. not to enter into any licensed liquor premises without the approval of the Chief Probation officer;
   

100. to attend AA meetings every Tuesday with Mr Charles Little; and
     

4. to attend any training or workshops directed by the Probation Service. I understand in particular some training to get you away from cannabis would be helpful and might save you from something worse.
   

[11] So I sentence you to probation on those special conditions for a period of 12 months, with six m on commucommunity service on each of the cannabis offences concurrently on all offences – that is CR No. 591/10 and CR No 44/09.

[12] On the firearms charges I convict you and an Order forfeiting the fire firearm to the Police.

Grice J