Police v Hosking [2011] CKHC 64; CR234.2011 (28 July 2011)

IN THE HIGH COURT OF THE COOK ISLANDS
HELD AT RAROTONGA
(CRIMINAL DIVISION)
CRN 234/11

BETWEEN

POLICE
Informant

AND

ROBERT NITO KAIRAU HOSKING
Defendant

Hearing: 28 July 2011

Counsel: Mr T Manavaroa for Informant
Mr N George for Defendant

Sentence: 28 July 2011

SENTENCE OF C NICHOLSON J

[1] Mr Hosking, you have pl guiltyuilty to the offence that being the holder of a renter's licence you did offer or expose for sale or renting to the publiital video discs which did not have the approval of the censor. That offence occurred betwebetween 1 April 2010 and 23 December

[2] The The facts were that late in the afternoon of Thursday, 23rd of December last&year there ware was a jointation for DVD inspection involving the Police and the Chief Inspector of the Censorship Offp Office and they conducted that at the Moxtreme DVD store which you ran at Ruatonga. You were there here when the Police and the Censor Inspector arrived and you allowed them to go ahead and inspect. They found a total of 536 assorted uncensored DVDs which they confiscated. You admitted that you were the owner of the Movie Extreme DVD store, that you imported assorted DVD movies from New Ze, Australia and the UniteUnited States of America and rented them to the public. There was no suggestion that any of the DVDs were pornographic in nature, were standard films, but they had not received the formal amal approval of the Censor's Office.

[3] For the Police Mr Manavaccepted that this wass was the first prosecution under the legislation for this offending but pointed out the maximum fine of $5for the offence and submitted that in sentencing there should be a fine significantly highehigher than 50% of that maximum reduced by 5% to take account of mitigating factors.

[4] Your lawyer, Mr George, has emphasihat this this is the first time that anyone has been charged for breach of legislation, that you have since the confiscation of the DVDs closed your store and go New Zealand where you now livewand work. You have cove come back specially for this sentencing today. Mr George submitted thatr the the legislation was passed there was no consultation between the Chief Censor and people selling DVDs, no information emag from the Chief Censor to state what the situation was.

[5] Mr George submitubmitted the mthe maximum fine was out of all relationship to the realities of the economic situation of doing business in the Cook Islands of this nature, and he submitt the circumstances the option was a discharge without conviconviction or a fine which he submitted should be of the order of $300.

[6] In deciding appropriate sentence I have regard to the fact that this was an offence committed within the context of a commercial operation and, although the Chief Censor may not have given adequate notice and warning, nevertheless people who hired or rented DVDs for a reward should have been aware of the legislation and the requirement of censorship for the DVDs which they handled. However, on the other hand I accept that the nature of the DVDs was not pornographic and seems likely that, had they been submitted for censorship, they would have been approved. I bear in mind that this is the first time there has been a prosecution for such offence and there has been no, so far as I am aware, warning given of the likelihood of that if there is not compliance.

[7] I take into account that you have acted responsibly, that you have pleaded guilty, and that you have taken the step of coming to Rarotonga specially for the sentencing. I take it that you have lost the 500 odd DVDs that were confiscated.

[8] I consider that the Court must mark the matter with a conviction, but that in the circumstances the fine should be minimal, in proportion to the maximum fine, to reflect the situation of first time prosecution and warning as it were and now the message will be given clearly that DVDs hired or rented must be censored and if there is offending by other people in this circumstance they can expect to be dealt with by relatively high fines. That is not the case here and so accordingly I convict you of the offence and fine you $500 and order you to pay Court costs of $30. Thank you for coming to Court for the sentencing.

[9] I make a formal order confiscating the videos which were seized and are in the custody of the Police.

C Nicholson J

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