Crown v Estall [2012] CKHC 55; CR247.2011 (2 March 2012)

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

CR NO'S 247/11, 298/11
299/11, 300/11
301/11, 302/11
303/11

CROWN

v

ALAIN ESTALL

Hearing: 2 March 2012
Counsel: Ms Henry for the Crown
Mr George for the Defendant

Sentence: 2 March 2012

SENTENCING NOTES OF ISAAC J

[1] Mr Estall you are appearing here for sentence on seven charges. Those charges were read out by Crown counsel this morning:

• (i) 3 charges of selling a class C controlled drug namely cannabis which carries a maximum penalty of ten years imprisonment.
  
• (ii) 3 charges of possession of a class C drug namely cannabis which also carries a maximum penalty of ten years imprisonment.
  
• (iii) 1 charge of possession of a utensil, namely a bong for smoking cannabis which carries a maximum penalty of five years and a fine not exceeding $5,000.
  

[2] The Summary of Facts has been read out by the Crown this morning and I see little point in repeating the facts this afternoon.

[3] In its submission the Crown has outlined to me the principles which underpin a decision of sentencing these include deterrence, accountability for harm done, protection of the community, and denunciation of the offending conduct.

[4] The Crown has also referred me to the case of the Police v Tina Upu from this Court where the Court said that stiffer sentencing was required in cannabis related cases to reflect concern of the community and it is suggested that a starting point for sentencing be imprisonment. The Crown also referred me to a New Zealand Court of Appeal decision in Crown v Terewi which considered sentencing in relation to the Misuse of Drugs Act 1975 and in that case the Court set out three categories of offending;

• (i) the first being small scale offending typically for personal use and in those cases invariably a fine or a non-custodial sentence.
  
• (ii) secondly small scale offending but for commercial purpose with the object of deriving profit, with the starting point being imprisonment.
  
• (iii) and third category being for most serious cases of offending with large scale commercial operation and a considerable degree of sophistication and organisation with sentencing for that category starting at a minimum 4 years imprisonment.
  

[5] The Crown in its submission to me this morning said that this case is serious in nature because the majority of your offending was commercial in nature. The Crown also referred me to the decision of Justice Grice which said that in such cases the weight of the cannabis was important and Justice Grice suggested that 100 grams of cannabis was equivalent to approximately one month in jail.

[6] Your counsel Mr George submitted that in this case you were only dealing with small amounts of cannabis describing how there was an insufficient to roll a normal size cigarette. He stated that for the Crown to suggest that this was a big commercial operation was in his words 'rubbish' and he said that the cannabis essentially was for your own use which you used to ward off depression and that it was only sold by you when pushed to do so by the Police undercover officers.

[7] Mr George also stated that since you have been arrested you have stopped using cannabis and he referred to the glowing references that have been obtained for you as to your character and in particular to the work with the Creative Centre assisting stroke victims and cerebal palsy sufferers. Furthermore he said that you had already served three weeks in prison and that you were better off in the community rather than in jail and he submitted that a non-custodial sentence was appropriate.

[8] You also received in my view a very helpful probation report which set out your background and the background of this offending and it also referred to the references that Mr George spoke about.

[9] The picture that is painted from the probation report and the references refer to a person who is extremely remorseful and a person who wants to improve not only his own life and that of his family but also other members of the society.

[10] My task in sentencing you today is to take into account all those factors and to impose a sentence which I consider will punish you in a way that reflects the community concerns and which will also reflect the seriousness of the offence and hopefully deter others from similar offending.

[11] Firstly I consider that this offence is essentially a category 2 type of offending as set out by the Crown, so the small scale offending but for commercial purpose. So my starting point in relation to your offending would be a short term of imprisonment of say 3 months, and that takes into account the number of charges which you have been charged with. I then, using the usual scale for sentencing, reduce the sentence for your early guilty plea by approximately a third, and this brings your sentence down from 90 days to 30 days. And having regard to the mitigating circumstances and as I say the glowing references, I would deduct another 20 days and taking into account that you have already spent 3 weeks in prison for this offending that for you in particular, there will be no custodial sentence handed down today.

[12] I am going to sentence you in this fashion in relation to all charges as follows:

• (i) 18 months probation, 12 months community service, and taking on board what Mr George has said I direct that community service be undertaken with the Creative Centre.
• (ii) I'm going to fine you $500, and Court costs of $30.
• (iii) And I'm also going to issue an order for the destruction of the material and the equipment ceased.
  

[13] In relation to the video camera and the air rifle, I'm going to ask that they be returned to the defendant by the Police.

_______________________
Justice Isaac

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