Police v Marsters [2012] CKHC 24; CR 313-314 of 2011 (20 July 2012)

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

CR no's 313-314/11, 306-307/11, 310/11, 316/11
243/11, 71-72/12, 75-76/12, 78/12;
252-253/11, 320/11;
251/11, 62/12, 261/12, 270/12

POLICE

v

GIOVANNI MARSTERS
INANO MATAPO
SAMUEL TANGAROA

Hearing: 9,10 & 11 July 2012
Counsel: Messrs McKenzie & Evans for the Crown
Mr George for the Defendants

Sentence: 20 July 2012

SENTENCING NOTES OF DOHERTY J

[1] Giovanni Marsters, Inano Matapo, Samuel Tangaroa, you are each here now for sentence in relation to a number of matters which come from what has colloquially become known as "Operation Eagle". You each face charges pursuant to the Narcotics and Misuse of Drugs Act 2004.

[2] You Marsters, three charges of importation of a class C drug namely cannabis, conspiring to import cannabis, selling cannabis, offering cannabis and having possession of cannabis for supply. Those are all matters which transgress the Narcotics and Misuse of Drugs Act pursuant to s 6. You are also charged and pleaded guilty to cultivation of cannabis pursuant to s 9 of that Act.

[3] You Tangaroa, one charge of importation, one for conspiring to import, one for selling and one of offering or supply.

[4] Matapo, you, one charge of selling cannabis. You are also charged with corruptly using official information pursuant to s 116A of the Crimes Act 1969.

[5] Your sentencing follows your pleading guilty part way through what was to be a two week trial of these and other matters. Some matters were amended, some were withdrawn by the Crown. You pleaded guilty to those that I have just referred to.

[6] This was all as a result of an undercover operation by the Cook Islands Police. It was clear that drug dealing was becoming an issue in the islands and it was clear that there was implication of one or more police officers. As a result of that the Cook Islands Police force enlisted the assistance of the New Zealand Police. Over the period of this operation which lasted from September 2010 to May 2011, there were some thirty officers involved, eighteen of them from New Zealand.

[7] Other people have been arrested and face charges, some have already been dealt with.

[8] But whilst this was an operation which commenced in September 2010 it is very clear that there was drug dealing by you, Tangaroa and Marsters, prior to this. Both importation and selling of cannabis. And that is indeed why this operation was set up, firstly, as I say, concerns as to dealing in cannabis in this community and, secondly, the possibility of police involvement.

[9] The Crown has attempted to put a range of values on the drug dealing activities that it has uncovered. It has used expert evidence as to pricing both in New Zealand where drugs were sourced and in the Cook Islands when they were sold both in what might be loosely termed the "wholesale" and "retail" spheres by you.

[10] It has attempted also to put numbers around what might have happened to the extent that there was as part of your importation a number of cannabis seeds, and I will come back to that. I do not intend to go through the 26 pages of facts and information that the Crown has provided to me and upon which you have pleaded guilty. If any members of the press want those then they can apply to the Crown for them, and they will be given.

[11] But really what happened here was that the three of you were involved differently.

[12] You, Marsters, were at least the primary offender if not the ringleader. You arranged and financed imports of cannabis, you engaged in retail selling of it, you cultivated cannabis for yourself, small crops admittedly but using paraphernalia of some sophistication. You imported cannabis from New Zealand because it was of a better quality and therefore commanded a better price in the Cook Islands and therefore meant you got greater profit.

[13] You imported seeds as I have said to enable you to set up your own growing operation; both of a better strain of cannabis than the local variety and therefore to maximise profits. You would also of course have been cutting out the middle man, namely your supplier, and you would have had a "go-to-whoa" operation in growing it to selling it.

[14] Tangaroa, you were an important player because you were employed by the Post Office. And as a result of this employment it enabled you to intercept imported contraband before it got to Customs. You were paid in cannabis. You chose that, probably because you used it yourself, but in my view you sold the balance for profit and therefore you were dealing on your own account.

[15] Matapo, you were a police officer of high rank. You had knowledge of what the police were doing in relation to the local scene and in my view your actions (which I will come to in some detail later) were designed to protect your partner, Marsters. You were also involved in a one-off sale.

[16] I have not been able to find any other cases, but I am told this is the first time in the Cook Islands that there has been a sentencing for major drug dealing. As a result there are no tariff judgments in the Cook Islands about cannabis or indeed any other drugs.

[17] There have however been recent pronouncements by this Court as to the scourge of cannabis in an island society and it was suggested in several cases – Police v Miriau, Police v Upu, Police v Wichman, all cases dealt with last year in June and December – that for simple possession of cannabis "where the amount and possession is clearly more than needed for own use" then sentences of imprisonment should be the starting point.

[18] This Court has therefore viewed seriously the potential impacts of drugs in this society. Since those cases there have been people dealt with in this Court where a number of possession and cultivation cases have meant that sentences less than imprisonment have been imposed.

[19] The scourge of drugs in any society and its impacts are well-known. Not just the impacts on users, the wasted lives of addicts and the impact on their immediate families, but also on the wider society as, with dealing in drugs and the money it involves, generally comes other crime. Crime to finance the habit and crime to enforce drug debts or even between drug factions. Things such as those are likely to have significant impacts on an island society.

[20] In the context of this case it is useful to draw on comparable jurisdictions and in particular New Zealand, but there are some distinctions. The first thing to recognise is that the Cook Islands and New Zealand Parliaments have treated class C controlled drugs differently when it comes to maximum sentences.

[21] For example, for cultivation in New Zealand the maximum sentence of imprisonment is 7 years. In the Cook Islands it is 20 years. That is a 300 percent difference or increase.

[22] For selling or supply in New Zealand it is 8 years, in the Cook Islands it is 10 years. So a 25 percent increase. Similarly for importation and conspiring to import.

[23] For possession, possession of even a small amount of cannabis in New Zealand the maximum is 3 months imprisonment, in the Cook Islands it is 2 years. That is an 800 percent difference.

[24] So the Cook Islands Parliament has given an indication to its society and to the Court that cannabis crime is more serious than has the New Zealand Parliament.

[25] There also needs to be kept in mind the difference in relative worth of profits between the two countries. Wages and incomes are lot higher in New Zealand, therefore profits from easy drug dealing may well incentivise people to significantly supplement Cook Islands salaries and wages.

[26] There was a comment by defence counsel in his careful submission to me earlier today. He submitted that I or this Court should base its sentencing process and the outcome of sentencing on Cook Islands standards, not New Zealand ones. If he was meaning the New Zealand Sentencing Act then it does no more than codify the common law approach for sentencing and modern sentencing practice. But if he is suggesting that there should be a lighter approach to sentencing between the countries, then that is not what the Cook Islands Parliament intends when one looks at those significant differences in maximum sentences or penalties for class C drug dealing in these islands.

[27] I want to turn firstly to the importation issues and those are the lead offences in relation to Marsters and Tangaroa. In New Zealand the importation of class C drugs, at least as far as sentencing is concerned, have largely been confined to drugs other than cannabis. That means it is probable that plenty of cannabis is grown in New Zealand there is no need to import it. But drugs such as party pills or BZPs and pseudoephedrine which is a precursor to the manufacture of methamphetamine have occupied the sentencing Courts of New Zealand.

[28] Recently the New Zealand Court of Appeal in two cases - Cai v R [2012] NZCA 293 and R v Qiu NZCA 202/206 - approved a judgment of the High Court, which is the equivalent of this Court, in R v Ho HC AKL CRI 2005-092-567. Ho set out tariff levels for importation of class C controlled drugs, in that case it was pseudoephedrine.

[29] The High Court in Ho categorised different roles in importing class C drugs. The first category was what was termed the mastermind, the people in charge, the ones who are at the top of the tree. They should expect a starting point of around 6 to 7 years imprisonment.

[30] The second category were the key helpers, those people should expect a starting point of around 3 to 5 years.

[31] The Ho case and its analysis is helpful but it varies from this case. The prime concern in Ho was the importation of pseudoephedrine for the purpose of manufacturing amphetamine or 'P'. It might be argued that the harms of importing cannabis, again a class C drug, are less likely than the harms from the importation of a key 'P' ingredient. Also in Ho, the drugs involved were worth $NZ1 Million or thereabouts.

[32] So that is one argument but against that there is the higher maximum penalty imposed in the Cook Islands legislation, and I have referred to those.

[33] I happen to agree with the Ho analysis. I think there should be some adjustments however to take into account the Cook Islands circumstances. I think the category 1 or the primary offending or the mastermind should be in the range of 5 to 9 years imprisonment. Category 2, key players, 3 to 6 years imprisonment.

[34] And of course within those ranges and the categories, the scale of importation will determine a starting point. Not just how much or how much it was worth, but things such as intensity and the frequency of importation.

[35] Turning to selling or supply, in 1998 the New Zealand Court of Appeal set tariffs for cultivation of cannabis in New Zealand in a case called the R v Terewi. Again, the Court of Appeal set a number of categories or ranges within which most offending might fall. Category 1 consisted of growing of a small number of cannabis plants for personal use by an offender without any sale to any other party occurring or being intended. In that case most penalties were a fine or a non-custodial sentences although the Court said that in persistent offending even though there was no commerciality a short term of imprisonment may be merited.

[36] Category 2 in Terewi encompasses small scale cultivation of cannabis plants for a commercial purpose, that is, with the object of deriving profit. And the starting point in that category was generally between 2 and 4 years imprisonment. But the Court did say where sales are infrequent or of a very limited extent, a lower starting might be justified.

[37] Category 3 is the most serious class of such offending and that involves large scale commercial growing, usually with a considerable degree of sophistication and organisation. In that category the starting point is 4 years imprisonment.

[38] The Cook Islands Court of Appeal in Mata v R [2000] CKCA page 1, referred to Terewi with approval. And it did that in upholding an appeal against an end 2 year sentence for cultivation of eleven small cannabis plants.

[39] The New Zealand Court of Appeal in R v Gray [2008] NZCA 224, accepted that there was a close analogy between growing and dealing for profit when it came to cannabis. And it also said that for sentencing purposes no distinction should be made between selling and cultivating cannabis, therefore Terewi applied to dealing in cannabis just as it did, or does, to cultivation.

[40] The Terewi position rather like the Ho position, might need to be tempered in the Cook Islands context. Again, when one compares the maximum sentences available. That is, in the Cook Islands cultivation might well attract a higher range of sentence. In each particular category when compared to dealing for profit, that is because cultivation is a much higher maximum penalty here in the Cooks as it is in New Zealand, but there is not such a large uplift for dealing category.

[41] When one looks at those categories, one has to be careful about direct comparisons. In 1998 in New Zealand a large scale commercial operation was viewed as one worth more than $NZ100,000. Even with an inflation adjustment that is likely to be a higher threshold in the present day New Zealand dollar terms. In my view the value threshold for the Cooks is likely lower, both from an economic point of view and from the point of view of the size of this community. For example the Crown says that in your case Tangaroa, an ounce of cannabis would utilize a profit equivalent to somewhere between 2 weeks to 1 months salary depending upon what range one takes.

[42] There is no evidence (because this is the first case in what might be termed major drug dealing) of what the extent of commerciality is in the Cook Islands. But I have been provided by the Probation Service with a list of recent convictions in this Court for all matters relating to cannabis. That list tells me that for the last 12 months there have been 27 sentencings in this Court for cannabis related matters. There were 8 sentencings in the previous 12 months. That means either that cannabis is becoming far more prevalent in this society or policing has improved and more people are being caught.

[43] I think that the categories in Terewi ought to be slightly adjusted to reflect the Cook Islands situation and again the adjustment should be upwards, not downwards.

[44] Category 1, for a small non profit, a fine through to a short term of imprisonment. Category 2, a range between 2 and 6 years imprisonment. Category 3, 5 to 10 years. You will see there is some overlap that is taken into account particular circumstances. Where one fits of course in any category depends upon the scale or intensity of the offending such as amounts, value and frequency of dealing.

[45] As I said earlier the Crown have attempted to put values on where this is to help the Court come to its assessment of where in those categories the Court should start. And the Crown has a range for you Marsters of profit from dealing between $46,500 and $107,275. For you Tangaroa, a range of $26,414 to $53,700. Now those are ranges depending upon numbers of sales, depending upon whether they were sold at wholesale or ounce lots, bulk deals, or whether they were broken down into tinnies, which is individual portions of cannabis.

[46] There are also assumptions made in relation to things such as the seeds that were imported and how many might have grown and how many might have yielded, whatever they did. It is based on some evidence coming from yourselves. You in particular, Marsters, where you had said to the undercover police officer, who I will come to later, that your previous grows were yielding you two ounces per plant. And while those are ranges they are very much only an indication that in my view that this was cannabis dealing at at least a moderate rate.

[47] Mr George is perfectly correct when making his submission that some of the Crown's assumptions may be on the wild side. It is always difficult for the Crown to do what the Court's asked it to do in this respect. I take it merely as an indication that we might be at something along a moderate level. Certainly it appears to be something significant within this society.

[48] I intend, in relation to each of you, to apply certain purposes and principles of sentencing. First of all the aim object of this sentencing exercise is to make you accountable, and to denounce your conduct. It is to promote responsibility within you, but primarily, because it is drug dealing it is designed to deter, not just you but anyone else who might want to get into this business in these islands.

[49] In applying those purposes I have to take into account principals such as the gravity of your offending. I have been talking about that just now. Its seriousness; that is how serious this society views it when compared to other things. And as I have said the Cook Islands Parliament seems to view this seriously indeed. I also have to apply consistency.

[50] So in sentencing the three of you on the drug matters, I intend to use the principals and the guidelines as set out in those tariff judgments that I have just referred to as I think appropriate.

[51] The Crown has submitted that I should come to finite sentences in relation to each charge and then consider aggregating or adding them altogether before finally stepping back and considering the total position. That is, a principled way of approaching the task. However, I intend to approach it slightly differently but in a similar principled way.

[52] For each of you Marsters and Tangaroa, I intend to take the importation charges as the lead charge and then when I have come to a starting point for that offending decide whether the additional offending aggravates that position so as to justify an uplift of the starting point. On that basis any sentence of imprisonment for the charges other than the lead charge will be concurrent.

[53] Before I come to dealing with each of you individually I must make comment on things that counsel has raised on your behalf. I have already dealt with his view of Cook Islands sentencing standards. He also made comment relating to the nature of the operation by the Police. It involved, as I have said, eighteen police from New Zealand. Of significance, at least one of those was what is termed 'undercover', and Mr George on your behalf has complained about these tactics – "they are new, they are strange, and they are socially repugnant" were his words.

[54] Those who are apprehended by these operations might not appreciate them. That is understandable because they get caught. But there is nothing inherently, in my view at least, strange or socially repugnant about someone being embedded into an operation such as this.

[55] The law allows it. The Court is the arbiter of it. And in this case I spent some days here a few weeks ago hearing argument on this very issue. There is a recent judgment that I gave in relation to it. But what that process does is have the Court as the arbiter over whether evidence should be admissible, whether it is fair, whether admitting it overcomes any prejudice that may be in it. That is the task of the Court. In this case I ruled that the evidence gained that was to be adduced in this trial against each of you people individually, was admissible. That is what the jury would have been making its mind up on, had this case gone on; only admissible evidence. So the Court decides what is fair in these circumstances, and it would seem strange to me, that a society such as the Cook Islands would think that its Police force should not use these techniques to catch criminals within it, if, what is done is fair according to law.

[56] Mr George also on behalf of the three of you said that all of this was pretty much the fault of the undercover agent if he had not been there, it would not have happened. Well maybe if he had not been there you might not have been caught, but it is very clear from the evidence that the Crown have produced in a preliminary way which was to be adduced to the jury, that you were doing this long before the undercover agent arrived in this country, and long before what is known as Operation Eagle started. So I do not take that into account at all.

[57] I want also to say something about personal circumstances. I have had the benefit of detailed comprehensive and full reports from the local Probation Service. Much of those reports for each of you refers to your personal circumstances. Much of what is said by the Probation officers is underpinned by what is known as character references. I have read them all. I have read them all two or three times. Other Courts, when sentencing for drug related matters have said that personal circumstances count for nothing or for very little. That is because the major purpose of sentencing in drug dealing cases is deterrence; to deter others from becoming involved. But I have been impressed by what I have read in those reports and what I have read that other people have said about you; in that you seem to be hardworking, family oriented, well brought up, God-fearing, contributing members of this society. Apart from you, Marsters, with an historic assault, none of you have been before the Court. And if there is one thing I think that I can take from Mr George's submission about sentencing in the Cook Islands, is that I do intend to take into account personal circumstances more than I would anywhere else; that is because this is a close community. It is impressive that 209 people have signed a petition to say what they did about you. I happen to think, bearing in mind you have now pleaded guilty to drug dealing in other things, that they are misguided. How can drug dealers be role models for children? If they are, in my view they ought not to be. But I do take into account that until you have come here you have been good citizens. And I am going to give each of you a credit for that.

[58] I am now going to deal with each of you one by one, and Marsters I want you to go into the dock first.

Marsters

[59] As I have said I intend to take the importation charges as the leading offence. Before I do that I want also to deal with one or two aspects that have come from the pre-sentence report. It has told me of your upbringing, your Christian home, your strong church values, and what your situation has brought to your family, and I ought to take that into account. They have also spent some time obviously talking to your family and both you and them have given the impression to the report writer that the undercover agent was to blame for all of this. But if they do not know, you do, that is not the truth. You were involved in this drug operation long before that person came along. And a cynic might even say that all of your good works in the community actually helped you by selling cannabis to those in that community. I do not know and I do not intend to take that approach, but I think that some of what is said in this report as to the reasons for the support that you have is not true.

[60] He also went on to give your view that it was all the undercover agent's doing, but that is not the evidence. The evidence that it referred to in that admissibility judgment that I gave some weeks ago sets out the reasonable inferences I drew that at your very first meeting you were telling an undercover agent all about your operation, and that what you saw was an opportunity to add to your own greed in drug dealing and take advantage of his connections, rather than the other way around.

[61] I think the starting point for the importation is at the lower end of the main player or mastermind category which was referred to in the Ho case. As I have adjusted it for the Cook Islands. And I think the starting point for such serious offending is 5 years imprisonment.

[62] I referred earlier to my approach in dealing with what goes from there, should it be uplifted, should that amount be added to because of your other dealing. You tried pretty much every method to try and introduce drugs into this country and to circulate it. You imported, you cultivated, you imported for the purpose of cultivating further and better drugs, you offered them for supply, and you sold them. You also conspired to bring in more when you could. And as I say, it appears in this country it is a relatively large amount of cannabis. You would have been benefitting greatly at others expense. You, through your counsel, say you did not make a cent out of it. That is not what you said to the undercover police officer. I have seen the evidence of transcripts of recorded conversations where he was bugged and you did not know that, you were talking about how your drug dealing had financed the two cars that your family was driving. There is that broader social harm to a small community as well. It was a commercial enterprise, you put some efforts into circulating cannabis, and there was the ongoing nature of the importation, you cultivated it, and again I remind you that this Parliament says 20 years is the maximum for cultivation.

[63] I think when I take all of those things into account, and particularly that the conspiracy charges are an indication, that if you had not been apprehended you would have continued to deal in cannabis, so I think the starting point of 5 years should be uplifted by a further 2 years to reflect those other matters.

[64] In mitigation, I have already said I am going to take into account your previous character. But it appears to me when you continue to blame everyone else for this, even though you pleaded guilty, there is very little remorse on your part.

[65] In a case of the New Zealand Supreme Court called R v Hessell that Court set out what are known as the principles relating to guilty pleas and they work like this. The earlier you admit to your guilt, the greater the remorse shown and therefore the bigger the discount there should be from a starting point. And Hessell says that the moment people could be reasonably expected to plead guilty and they do, they get a 25 percent discount. So, for example, if you were sentenced to 8 years you have pleaded guilty right at the start, you would have 2 years deduction from that. And Hessell has a sliding scale right up until when people change their plea just before a Jury gives a verdict. In your case, you had lots of opportunities to plead and you didn't until the trial had started, and your plea was on the morning of the third day of trial. Ordinarily, Hessell says you should get very, very little for that.

[66] However, when I assessed what that meant for the local Police force and the New Zealand Police force and the cost of continuing with the trial for the full two week period, I think I ought to give some sort of discount. And the Crown agrees that in the circumstances and the Crown counsel knowing more about the cost etcetera than I do, they agree that a discount somewhere around 10 percent might be appropriate.

[67] The starting point therefore is 7 years imprisonment for this total offending for you.

[68] I am going to give you a deduction of 6 months for your personal circumstances, and I have already referred why I am doing that, and the ultimate plea of guilty is a further reduction of 6 months.

[69] You are therefore sentenced to a total sentence of 6 years imprisonment which will apply to the importation and conspiring to import charges and a concurrent term of 2 years imprisonment for the selling, offering and cultivating of cannabis.

[70] As I have passed a sentence of imprisonment upon you because of s 6(5) of the Narcotics and Misuse of Drugs Act, I must consider whether I also impose a fine in view of this deterrence sentence, I do not intend to impose any fine and I do not.

[71] I make an Order for destruction of the cannabis and growing paraphernalia.

Tangaroa

[72] You too have impressed the Probation Service. You seem to be a hard working, God-fearing etcetera individual. You are an extreme disappointment I am sure to your family, both parents and your wife and children. You are a good provider and a family man, and the sentence of imprisonment I am going to impose upon you is going to have a significant effect on them. It is one of the things that happens.

[73] Again you have attempted to downplay your actions in the sense of your being involved and you, through your counsel and through the Probation Service, have pretty much pointed the finger at the undercover officer. But again it is clear from the evidence, some of which was accentuated by the Crown in reply, that you were already in this drug dealing operation.

[74] I think it is clear that you were introduced to the undercover officer by Marsters but any justification that you have for helping out a mate is not really borne out by the evidence of Marsters who was telling the undercover officer that you were involved in this little scheme long before he came along.

[75] You are in that second offender category in the importation in accordance with the Ho principles. Although you are secondary, you were a significant player because without someone running interference with the Cook Islands Customs, the importations were likely to be doomed to fail, or at least have a far higher expectation of being intercepted. So you cannot be characterized as only a minor player.

[76] I think on the Ho analysis that I have referred to in the context of the Cook Islands a starting point of imprisonment of 4 years as the appropriate one.

[77] You were also engaged in your own little dealing operation to maximize the profit because what you were doing is being paid for your interception work, not in cash but in kind. You were taking cannabis and you were advising people of what it was going to take for you to be involved. You took your cut. Sure, you used a bit of it yourself because you had admitted to the Probation Service that you do use it, but you were maximizing profit by selling on a retail market.

[78] Should there be an uplift from that 4 year period? The aggravating features are the range of offences you were engaged in, there was a breach of trust with your employer, you too introduced this new stock into the Cook Islands. There is no evidence of you using the seeds to grow yourself, and as I say deterrence has to be the major factor.

[79] Like Marsters, I think the starting point should be uplifted and uplifted not by the same amount because his involvement was higher than yours but uplifted by one year to reflect your additional offending.

[80] You, too, get a 6 month credit for your previous good character and a 6 month credit for your late plea of guilty. You are therefore sentenced to a maximum term of 4 years imprisonment. Four years imprisonment will attach to the importation and conspiracy to import charge. On the selling and offering charges, 12 months imprisonment on each, the terms to be concurrent. That means a maximum of 4 years imprisonment.

[81] Again, as with Marsters, pursuant to s 6(5) of the Narcotics and Misuse of Drugs Act, I have to consider a fine, there will be none. If there needs to be, there is also an Order for destruction of any cannabis.

Matapo

[82] You would not need me to tell you, you have had a significant fall from grace. You were a senior officer, a Senior Sergeant of the Cook Islands Police force. You have attained that rank through your shear hard work and application to the job.

[83] You have pleaded guilty to two charges of corruptly using official information under the Crimes Act, that is, you used information which was within your knowledge as a Police officer and you used that, first of all, to tip off a suspect who was an undercover agent, that his room was to be searched for drugs; you told him to clean it out.

[84] Secondly, you gave that person information as to what the local Police knew about him, and in particular whether they were investigating him for drug offending. To your credit you refused direct payment of $50 for the latter, the information, but you did later accept a $45 drink card. He was as I said an undercover officer.

[85] You also sold, together with Tangaroa, a quantity of cannabis, eight tinnies worth about $400 on a one-off transaction. It too had its quirks because it was related to provision of cannabis to a person who was going to provide you with funds for your sporting team.

[86] It seems to me that in the circumstances you were always in a compromised position. Part of what I have read from your partner, Marsters is that the two of you are a very close unit, you do not have any secrets from each other. If that was the case you would have known what he was doing and what he was dealing with. You knew cannabis was in the house, there were cannabis instruments although there have not been any charges survive in relation to those and you knew, I am sure, of the growing. So, that is a compromising position and again shows unfortunately your lack of judgment.

[87] You through your counsel have attempted to persuade the Court that your motive for all of this was to gain intelligence to pass on to your superiors. That you were suspicious of the undercover officer and your actions were to build up his trust. You were wanting to deliver something to your superiors to help with your promotion. Counsel said that there was no financial gain or any personal gain for you in disclosing this information but of course there was, because if he was caught and apprehended by the Police and you were wrong about him, then he would have tipped the Police into your partner's operation and you would have been implicated.

[88] I do not believe for a moment that you were attempting to mould this person for some sort of informer or perhaps seek for something else, because you have not been able to provide any evidence of it. If that was the case, a Senior Sergeant in a Police force would have had a trail. You have produced no dossier of notes, no diary notes of dates and times, and there is nothing that has been produced to this Court showing any actual communication with your superiors.

[89] I also think that given the closeness of you and Marsters that it would have been improbable because you have implicated your own lover, partner and father of your child or children.

[90] You go further, in the report that I have from the Probation Service, you think that you have been set up by the current Commissioner of Police. You come across as being resentful for being overlooked for promotion. All of that leads me to the view that although you have pleaded guilty, you have very little remorse, or as it seems to me, that it is still someone else's fault.

[91] I intend to take the s 116(a) offence, that is the one relating to corruptly using official information as the lead charge because your drug dealing, although it was drug dealing, it was a one-off sale and I think not as significant as this complete breach of trust.

[92] How then do I come to a starting point for an offence which carries 7 years imprisonment as a maximum? This section does not seem to have been considered by any sentence in Court in the Cook Islands to date. The only comparable case is a case called Police v Drollett [ 2003] CKHC 4. That case related to charges under the Secret and Commissions Act and Forgery Against the Crimes Act, both of which have 10 year maximum penalties. And the case is similar only because the Judge described it as "falling under the broad heading of governmental corruption and dishonesty" and the Court then reinforced the primary purpose of sentencing in those circumstances as deterrence.

[93] You will not be in the Police force again so it is unlikely to deter you but it might be a general deterrent to those who want to enter the Police force or are currently in it. It is not clear to me from that case what amounts were involved but a 3 year starting point was the starting position.

[94] Again I have looked at comparable cases from New Zealand. There are two parallel provisions in New Zealand, s 105A and s 104 of the Crimes Act 1962, they both carry the same maximum penalty of 7 years imprisonment.

[95] One of the leading cases under s 105A is the R v Palmer CA 332/03 a case dealt with on the 31 March 2004, and that involved a Government Stock Trader who was using government knowledge of the security's market to feather his own nest, and he did so to the tune of about $250,000. And I refer to it only again because of the observations made by the Court of Appeal in that case. Court of Appeal said this "the Section is a recognition that persons employed in Government and other forms of public service are to be held responsible for a high level of integrity in persons in the private sector. The reason is quite simple, namely to preserve confidence in the Administration of Public Affairs. What is material is that corruption in Public Office whether by the corrupt of use of official information or otherwise will inevitably bear on the extent to which confidence in the Administration of Public Affairs can be maintained." That is the mischief that these sections are aimed against. And the Court of Appeal in that case considered aggravating features of premeditation, ongoing offending, benefits of the offender, etc and took a starting point of 3 to 4 years.

[96] Of more applicability to your case is a case called Connelly v R [2010] NZCA 129. The Appellant in that case who was appealing a 2 year sentence was a Police officer. That case was under the comparable s 104. He had been using his position as a Police officer to coerce a woman into having sex with him. As part of doing this, he apprehended her in a situation where he should have or could have laid charges which would have resulted in fines. Instead of doing that, he took sex for no payment over a period of time. The sentencing Judge, Justice French in the New Zealand High Court, was approved by the Court of Appeal on several of the relevant points and I want to quote those because it is in similar vain to the earlier case. She said this:

"I also consider that because on abusive powers and inherit feature of this offence, is also, is important to avoid double counting by sighting breach of authority. The fact however that you committed this offence as a Police Officer is nevertheless an aggravating feature because of the harm done to the Police force and the result in loss of public confidence in the Police. That is something that strikes at the very heart of our legal system. It is imperative that we have faith in the integrity of our own Sworn Police Officers who are entrusted by the community with the task of enforcing the law."

[97] The Court of Appeal in its judgment added this:

"a firm response is required where a member of the Police abuses his power and authority for private purposes. We agree entirely with the Judge that the sentencing purposes of denunciation and general deterrence called for nothing less than a sentence of imprisonment on the circumstance of this case."

[98] The Court of Appeal upheld a starting point of 5 years imprisonment.

[99] In your case, your offending was not just for personal gain. It was also for the benefit of an activity that is illegal in its own right, and in my view that is a further aggravating feature. What you did was tip-off an undercover agent to get rid of whatever stocks of drugs that he had, number one, so he would not be able to apprehend or that would not be found on an execution for search warrant and, two, he would continue to have it for future dealings.

[100] Is there any basis of not comparing that case or those cases in a similar way to you? I suppose there is an intensity of feeling here in the Cook Islands because one of its Senior Police Officers has fallen from grace will be a strong disincentive and probably a stronger punishment than it might be in New Zealand. It might also be that the harm to the public perception of the Police may be felt more sharply in a smaller nation such as the Cook Islands than in New Zealand.

[101] However, they remains as aggravating features that you were a Police officer, your behaviour was a breach of power and a breach of trust, not just to your employer but to the local community, that there will be an impact on public perception, and there was a personal gain to you in my view.

[102] The focus in cases such as Connelly were less on the actions themselves but more on the effect of the name of the Police force. I think that applies here but I think that the action in your case is less serious than Connelly but I do consider that your offending will have a similar tarring on the public perception of the Police force.

[103] The Crown asks for a starting point of 3 to 4 years imprisonment for this offending to take into account those things.

[104] In my view, comparing cases such as Connelly even the lower of that range will be too high, so less than 3 years should be the starting point. I say that primarily because whilst your offending was reprehensible it was confined to two separate occasions. Connelly was someone taking advantage, time and time again, of his particular situation. And I suppose any starting point of imprisonment for a former Senior Sergeant is significant.

[105] As best I can I have assessed the starting point as 2½ half years imprisonment.

[106] As I come to the drug charges you were involved with your partner Marsters and Tangaroa, but the charge that you have pleaded guilty to are much less serious than theirs, it was a one-off transaction where, even if you were in profit, you might have resulted in getting one half of it, approximately a couple of hundred dollars. But you did know what was going on. There was an involvement, in my view, with a more serious pattern of your offending and I think that there should be an uplift to reflect that you are probably in the lower end of Category two of Terewi, that had a 2 to 4 year range, but as I said in that case the High Courts have said that for one-off dealing perhaps one can start lower than that, and I intend to do so. A one-off transaction of low value but bearing in mind the deterrent nature of sentencing, for that charge you are sentenced to 9 months imprisonment.

[107] I agree with the Crown that because that one-off thing was dramatically different from your other offending, which was all about abuse of your power, then there should be a cumulative sentence. So the total starting point is 3 years and 3 months imprisonment.

[108] I suspect that your fall from grace and being a former Senior Sergeant will mean that your time in the prison will be harder for you than for an ordinary citizen and it is for that reason, although it is proportionally greater, I am going to give you a credit of 3 months for your guilty plea and 6 months for your personal situation, for personal characteristics, just as I have for your friends.

[109] So I must deduct from 3 years, 3 months a total of 9 months imprisonment. That means you will serve a maximum sentence of 2 ½ years imprisonment, that will be made up this way, for each of the corruption charges you are sentenced to 2 years imprisonment, that term to be concurrent between themselves and an additional 6 months for the sale of cannabis. So a total maximum sentence of 2 years and 6 months imprisonment.

[110] Again, as with the others, I do not intend to impose any fine pursuant to s 6(5) of the Narcotics and Misuse of Drugs Act.

[111] At the conclusion of my sentencing remarks the Crown has pointed out a couple of errors, the first is in relation to you Marsters, the possession for supply charge was withdrawn late by the Police. I have referred to it in the sentence, that was indeed an error however it makes no difference at all to the outcome.

[112] I also made reference to the transcript of a recording of a bugged conversation relating to your saying to the undercover officer that you had purchased two vehicles from your drug dealing profits, you did say that to him because he has reported that in statement made but I was in error when I said it was recorded on a tape recorder.

[113] For the general public and for the press in particular, earlier in the week I made final orders suppressing the name and details of anything in this case that might lead to the identification of the undercover officer. I made a formal order and it was recorded as a formal order in a Minute that I have issued. That is a permanent order and all those who want to know exactly what it says should see the Registrar and obtain a copy of it, however its effect is to prevent any publication of image or name or details which might give rise to his or her identification.

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Colin Doherty J