Crown v Robati [2011] CKHC 66; CR256, 327 & 383.2011 (29 July 2011)

IN THE HIGH COURT OF THE COOK ISLANDS
HELD AT RAROTONGA
(CRIMINAL DIVISION)
CRN 256, 327 & 383/11

BETWEEN

CROWN
Informant

AND

FAIMOU ROBATI
Defendant

Hearing: 29 July 2011

Counsel: Mr T Manavaroa for Informant
Mr C Petero for Defendant

Sentence: 29 July 2011

SENTENCE OF C NICHOLSON J

[1] Mr Robati, you have pleaded guilty to and been convicted of the offence that on the 5th day of May this year you had in your possession the Class C controlled drug cannabis. The maximum penalty for that is two years imprisonment or a $5,000 fine. You have also pleaded guilty to and been convicted of two offences of contempt of Court by disobeying bail conditions on 13 May this year and 31 May this year. The maximum penalty for those offences is six months imprisonment or a $100 fine.

[2] Facts are that there was a drug operation being carried out by the Police, code named Operation Eagle, and at just before noon on Thursday, 6 May you were riding your motor scooter past the Edgewater Resort, you stopped to speak to an associate who was being spoken to by the Police. You agreed to be searched and from your jeans pocket you handed the Detective Sergeant a small packet containing a small amount of cannabis. You said that the cannabis was yours and that you were either going to smoke it or give it away.

[3] The facts relating to the breaches of bail were that on 12 May when you were before the Court on the cannabis charge you were bailed with one of the conditions being that you are not to be abroad, that is, you were to be at home with a night curfew from 7 pm to 7 am, but the next day just after midnight the Police saw you walking out of the Rehab Club, you were not obeying your curfew, and when you were spoken to you said you went fishing and had gone to the rehab bar. You were arrested for breach of bail. You were later released on further bail with the condition of a night curfew, but on 31 May when the Police went to where you were supposed to be living they found you were not at home and the following morning they found you at a friend's home.

[4] The pre-sentence report describes your age as 41 years, that you have a history of previous offending, but none of it relates to drugs. The Probation Officer spoke to the person whose family you were living with and she described you as being a wanderer who helped with chores when asked you about was not forthcoming in helping. You have been employed as a part-time deck hand for a fishing charter business and your employer said that you were very good as a fisherman, very talented, you had the capability of relating well with tourists, and that you would be a big asset to the business if you were to be employed. The Probation Officer recommends a sentence of 12 months probation supervision, with the first eight months to be on community service.

[5] For the prosecution Mr Manavaroa points out the appropriate principles of sentencing and the concern of the community and the Courts about drug offending but accepts that, because of the small amount of cannabis involved, this was not a serious offence of its sort. He accepts that you have been about two months in custody as a result of your initial arrest for possession of cannabis and your later breaches of bail, and bearing that in mind submitted that a substantial fine would be appropriate of approximately $750 with a 12 month period of supervision and six months on community service. He submits that on the breaches of bail offences a fine of $40 on each would be appropriate.

[6] In his submissions on your behalf Mr Petero has provided a very clear and comprehensive statement of submissions, pointing out that this is your first appearance on drug related charge and that your last offending was nearly 10 years ago, and since then you have tried your best to turn your life around and until the drug incident recently you would be largely successful in doing that. He pointed out that you were cooperative with the Police and pleaded guilty even before the analysis result was obtained. He also pleaded guilty to two contempt of Court charges. You were remorseful and apologetic to your family for your actions and dragging your family name through the media. Mr Petero submitted that having regard to the small amount of cannabis found on you a term of imprisonment is not appropriate or justified. He submitted that a fine of $500 and a 12 month term of probation should be the starting point and relied to an extent upon a sentence given to a person for a similar offence. He submitted that the fact that you had spent just under two months in prison should absolve you from having to do any community service. He said, however, because of the mitigating factors of your cooperation with the Police, your plea of guilty, the small amount of cannabis, the fact that this was a first conviction for a drugs related charge, your remorse for your actions and the time you had spent in prison the mitigating factors amounted to a two-thirds reduction in respect of the term of probation, leaving a total of five months probation and a monetary fine. On the contempt of Court orders for breach of bail he submitted that the fact that you had spent time in prison after the breaches should be sufficient.

[7] So, in conclusion he submitted that an appropriate penalty was $500 with a term of five months probation. He asked that you be given five months to pay because you work only part-time.

[8] I agree with the very sensible and realistic submissions of Mr Petero and accordingly on the charge of possession of cannabis I convict you and fine you $500 and sentence you to probation supervision for the minimum period of 12 months.

[9] On the contempt of Court breach of bail charges you are convicted and discharged. I order that you have five months to pay the fine.

C Nicholson J