Police v Toleafoa [2011] CKHC 75; CR538.2011 (16 December 2011)

IN THE HIGH COURT OF THE COOK ISLANDS
HELD AT RAROTONGA
(CRIMINAL DIVISION)
CR 538/11

POLICE

V

ETHAN ANAND EKERONA TOLEAFOA

Hearing: 16 December 2011

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

Sentence: 16 December 2011

SENTENCING NOTES OF GRICE J

[1] Mr Toleafoa you have pleaded guilty to a charge of possession of a class C controlled drug namely a cannabis plant. That is an offence under the s 7(1)(a) and (2)(b) of the Narcotics and Misuse of Drugs Act and carries with it a maximum term of imprisonment of two years and a maximum fine of $5,000.

[2] The facts have been read out by the Crown. On the 12th August there was a search warrant at the dwelling that you live at, and as a result of that a cannabis plant was found in a shrubbery about 50 metres from your home. When you were questioned about it you admitted accepting it from a friend that morning and taking possession of it. You said your friend and another friend had come on a bike to your house and had told you to take the plant. You knew it was a cannabis plant, it was growing inside a grey bucket, and then his friends left and left you with it. So you took it into the shrubbery and hid it so no-one could see it. You did not give an explanation. I will comment on the circumstances in the submissions that Mr George made on your behalf in relation to those facts shortly.

[3] The Crown submitted that this was a case that it was appropriate to consider the comments of the Court recently in the Queen v Tina Upu. In that case Justice Hugh Williams commented that in general the possession of cannabis in the past resulted in relatively lenient sentences, probation, community service and small fines, but it is clear that from what has come before the Court that the Court must take a responsible position for reflecting increasing community concerns to an extent and impose a stiffer sentences than in the past. The Crown also submitted that the sentencing principles should apply of deterrence, accountability for harm done, protection for the community, and denunciation of the offending and that I should look at the mitigating and aggravating factors of the offence. The Crown submitted that this case called for a fine of $750 and 12 months supervision, first six months to be served on community service.

[4] On your behalf Mr George submitted that while you admitted having the cannabis it was your friend who put you in that position. He characterised it as a setup and handed up your friend Mr Tangatakino's statement of the 26th August 2011 to say that he had "dropped the plant off there and was going to pick it up afterwards and would like to apologise to your parents about this matter, it's my fault to get Ethan in this mess, and yeh that is all I just wanted to give". That backs up the agreed facts that you said a friend had dropped it off that morning.

[5] Mr George urged on me that you came from a very good background, your father is a pastor in the Church or a minister in the Church, that you are regarded well by the family, and that you are a good worker at home, you help with the housework and things, and you have been raised with good strong Christian values. But he hopes to get you into, or you being accepted into the Cook Islands Sports Academy in 2012 which your father feels is a good opportunity not only to satisfy your interest in sports but academically as well. The Probation Service back this up, indicate your good upbringing, and confirm the issues outlined by Mr George.

[6] Mr George also attempted to refer me to s 7(3)(a) of the Narcotics and Misuse of Drugs Act which is the defence based on the defendant having in his possession cannabis for the purpose of returning it to its lawful owner. I indicated that that was a defence to the matter rather than anything else and if you were to pursue that you would be looking at the withdrawal of the plea. Mr George conceded that he would not be seeking withdrawal of the guilty plea and proceeded on the basis that the plea was made and on the statement of facts.

[7] The general principles that I must apply to these were outlined by the Crown. I am required to pass a sentence that punishes you for this, deters others from similar offending, and reflects the gravity and seriousness of it. But at the same time I must take into account the circumstances of the offence which in this case is someone had dropped the plant off to you and also take into account the fact that you made an early guilty plea, it is your first offence, and in particular your youth as well as the circumstances relating to your family. And so I impose the least restrictive sentence that is available in the circumstances.

[8] I can see no aggravating factors in this offence and in mitigation I have outlined the factors including the fact you were cooperative, there was an early guilty plea, the circumstances the offence is your first offence, and your youth.

[9] However I must accept that you knew what the plant was, that you had in your possession, and that you pleaded guilty although someone left it with you. Because of the situation at the moment with cannabis, I have to reflect that that is the offence. In the circumstances I cannot ignore the fact that you did have a cannabis plant in your possession.

[10] However having listened to your counsel I am persuaded that it is not appropriate to impose a supervisory probation period which I well might have otherwise been looking at. In the circumstances I convict you and fine you $500.00 with Court costs of $30.00 and an Order for the destruction of the plant.

[11] Your sentence is a fine of $500.00, Court costs $30.00 and destruction of the plant.

Justice Grice

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