Police v Iotua [2015] CKHC 2; CR 350.2013 (13 March 2015)

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

CR NO'S: 350/13, 21/14, 109/14
146/14-147/14, 184/14 -195/14

POLICE

v

RIMAATI JUNIOR IOTUA

Date: 13 March 2015

Counsel: Ms C King for the Police
Mr B Mason for the Defendant

SENTENCING NOTES OF THE HONOURABLE JUSTICE HUGH WILLIAMS

[1] Rimaati Junior Iotua, at the age of 24 and with a most unfortunate history, to which reference will be made. You come before the Court today for sentence on no fewer than 17 charges, 15 of which are burglaries committed between 23 July 2013 and 2 April 2014.

[2] The earliest of those charges was possession of a utensil, namely a bong, for which the maximum sentence is 5 years imprisonment. There was then a string of 13 burglaries, on each of which the maximum sentence is 10 years imprisonment. They run from 21 September 2013 to 22 February 2014, a period of some 5 months. You were then arrested on 21 March 2014 on a bench warrant for failing to appear and escaped from the Police Station that day. Escaping from lawful custody has a maximum sentence of 5 years imprisonment. Then, once bailed after that offence, you committed two further burglaries on 2 April 2014, and again, the maximum sentence is 10 years imprisonment on each of those.

[3] The history of your prosecution shows that you pleaded not guilty to begin with, bench warrants were issued, and it was only after the sentencing of your co-offender Mr Taru that you, on 28 November 2014, pleaded guilty to all the offences.

[4] Grice J was unable to sentence you on that occasion and remanded you through to today in custody. It seems that you have been in custody for "give or take" a few days, about a year on remand and come for sentence today.

[5] There are so many charges that I do not intend to rehearse the facts of each one. Ms King for the Crown has read the summary of facts to the Court a copy of the Police summaries will be attached to your sentencing notes.

[6] But, in addition to what she said, I note a number of matters. The offence under the Misuse of Drugs Act 2004 was discovered on execution of a search warrant.

[7] When you were apprehended for the burglary of the Manea Beach Villas on 21 September 2013, the first of the burglaries for which you are being sentenced, your fingerprints were identified and but notwithstanding that, you denied being responsible for the burglaries. In that burglary, as in most of the others, cash and items valuable to the owners was taken.

[8] The other burglaries show much the same pattern of the theft of large sums of cash, usually from tourists, and other items. It was designed to cause them the maximum upset and inconvenience.

[9] Another common feature is that with each of the burglaries you refused to speak to the Police or to make a statement. You are entitled to do that but nonetheless it shows stubbornness and an unwillingness to accept that you were responsible for a large number of burglaries causing distress to the persons from whom you stole.

[10] The third factor which needs to be mentioned is that in the burglaries you stole a total of over $9,000 in cash. The Police seek reparation from you but it is all gone. You probably do not have 9,000 cents let alone $9,000 particularly when you have been in jail for about a year.

[11] It is unfortunately far from the first time you have been before the Court. Between 2006 and 2013, you have been convicted on eight occasions for offences such as breach of community service or breach of probation. You have a previous conviction for possession of utensils. You have been convicted on over 20 occasions for burglaries or attempted burglaries, a couple of occasions for escaping from lawful custody, eight occasions for general dishonesty, theft, receiving, unlawful taking, conversion, matters of that type and two occasions for contempt of Court.

[12] Though you are only 24, you have been to jail no fewer than eight times already, mostly for shorter periods but on two occasions, in 2008 and 2010, for 12 months. You were only out of jail a few days before you embarked on this crime spree involving the large number of burglaries to which I have referred.

[13] In consequence of all of that, the Crown submits that the starting point for sentencing you should be near the maximum of 10 years imprisonment because this is what they describe as a "sustained criminal spree". They suggested you were the ringleader, a point disputed by you and possibly validly disputed given there were only two of you involved in the offending, but it does seem that for the most part you were the one who actually committed the burglaries while your co-offender Mr Taru merely kept lookout.

[14] The Crown points, justifiably, to the fact that these were premeditated offences aimed at tourists. Stealing from tourists is a sneaky offence because the circumstances of that sort of offending are such that tourists are often reluctant to return to the Cook Islands to give evidence, so the chances of such as you getting away with it are increased.

[15] The Crown also points to the fact that burglary is an ongoing and a major problem in the Cook Islands, involving an impact on the security, not only of the whole of the Rarotonga community, but on tourism which is a major stream in the Cook Islands economy. They direct me to cases such as Police v Bailey HCCI CR 461/12 Grice J 9.11.12, Police v Maka HCCI CR 43, 134-5, 778/11, 45/12 Hugh Williams J 22.6.12 and Police v Kakino HCCI CR 385-6, 434, 436-7, 444-6/11, 14, 15, 154-5, 310-3/12 Grice J 8.11.12 where relatively short terms of imprisonment were imposed.

[16] In the Crown's submissions aggravating factors are the scale of your offending, the prevalence of burglaries, the fact that many occupants were in the premises you burgled at the time, the premeditation, the fact that you were on bail - you were offending on bail for many of the offences - and your list of previous convictions. So they suggest that I should start with a sentence of about 6 years imprisonment for the burglaries, and after giving some discount for the fact that you pleaded guilty, come to an end sentence on those offences for about 5 years.

[17] Mr Mason on your behalf - and Ms King acknowledged that argued that there is a comparison that needs to be undertaken between the three year sentence imposed on your co-offender Police v Taru HCCI CR 184,196-9, 211-9/14 Weston CJ 22.9.14 on 15 burglaries and the sentence to be imposed on you. Mr Taru's case was different in the sense that there were fewer burglaries, he had no extra offences like possession of utensils and escaping and he was prepared to co-operate with the Police to the point where he was, at least at that age, (since recanted) prepared to give evidence against you. The Crown suggests that the sentences for the escape and the utensils might well be cumulative on the sentence to be imposed for the burglaries.

[18] Mr Mason suggested that your offending was towards the lower end but realistically accepted that the starting point for the sentences on the burglaries should be at least 3 years imprisonment and the aggravating features might well lift the sentence by a year. He stressed Mr Taru's position including the fact that you were apparently released from jail in order to be present when Mr Taru was sentenced by the Chief Justice, and your pleas followed that sentencing. So there should be some comparison undertaken with the Taru sentence. He drew attention to the unfortunate personal background you have had and acknowledged that you, if not already, are fast becoming a" lost cause". He suggested that your presence at the birth of your second child towards the end of last year may do something to bring you to your senses and cease your re-offending.

[19] I am required to try and fashion a sentence which brings about accountability on your part for the harm your offending has done to the victims and to the community, to try and promote a sense of responsibility in you, provide for the victim's interest and denounce and deter your conduct. Denunciation is certainly a major feature with a background such as this and where you are being sentenced for as many crimes as you have committed.

[20] This is all serious offending and, with the number of burglaries set against the previous convictions and your drug and escaping offences set against the previous convictions for those offences, this is clearly a serious matter when it comes to working out the appropriate sentence. Under the New Zealand statute, the aggravating factors which are present and they operate in the Cook Islands as well are the possibility of violence, unlawful entry into a place where people were living, offending whilst on bail and the extent of the loss or harm, here the theft of over $9,000 in cash plus other items like ipods and mobile phones which would be valuable to the owners.

[21] As I mentioned on each of the burglaries you face a possible sentence of 10 years imprisonment. In Police v Maka I said that the time has come for the Court to take a short term of imprisonment as a starting point for offending such as this, and I also note that the cases to which the Crown referred me are all now of some age, two, three, four years old. Although periods of imprisonment were involved in all those cases, it seems to have done nothing to deter you from your crime spree. Perhaps more appropriate is Potter J's sentencing of Police v Tutakiao HCCI CR 612 & 918/12, 90, 103-105/13 Potter J 10.5.13 where on four burglaries plus other charges he was sentenced to 3 years, 9 months imprisonment. So burglars in the Cook Islands need to recognise the sentences are steadily increasing and will continue to increase until burglary no longer becomes such a prevalent offence.

[22] Aggravating factors - those making the sentence to be imposed heavier in your case - are the sheer number of burglaries, 15 over 7 months, eight committed on one night, several committed when you were on bail. Those factors alone indicate the appropriate sentence would be a lengthy term of imprisonment on each of the burglaries.

[23] Secondly, there is a nature of the offending: each of the burglaries involves breaches of people's privacy, a breach of security to which they were entitled, in most cases entry into what was at the time a private dwelling in the sense of people living in a villa or a lodge. Nearly all of these offences targeted tourists. They were aimed deliberately at the tourist industry and that is a despicable aspect of your offending.

[24] There was premeditation on your part to target tourists because you knew it would minimise the chance of your conviction and maximise the likely return because tourists bring quite large sums of money when they come here on holiday. Tourism is a vital factor in the Cook Islands economy, so you were offending against the whole of the Cook Islands community. Were it to become known internationally that tourists are preyed on by sneaky thieves like you when they are here, that could do incalculable harm to the tourism industry of these islands.

[25] Although the cases I have mentioned as I said were about 3 years old, they have had no discernible effect in reducing the number of burglaries and certainly no effect on you.

[26] The next aggravating factor is that you have got something like 61 previous convictions. You have been to jail eight times, but it seems to have no effect on your criminal behaviour and reoffending.

[27] And the final factor which needs to be taken into account as aggravation, is the comparison with Taru, I will come back to that. The only mitigating factor Mr Mason can put forward on your behalf is your pleas of guilty and you are certainly entitled to a reduction in the sentence for that, and particularly because getting convictions against you for the reasons I have mentioned, may not have been certain. But the pleas were late, months after you were originally charged and to that point, you had steadfastly refused to acknowledge your responsibility.

[28] So in my view, the starting point for imprisonment on the burglaries, should be about twice the sentence imposed on Mr Taru of 3 years, ie about 6 years, possibly, given your record and given the number of burglaries a little higher. So the starting point in my view should be something over 5 years imprisonment for the burglaries and possibly as high as about 6 ½ years.

[29] As the Crown says, the utensil offence and the escaping from custody are offences which are completely different in nature to the dishonesty offences, and on their own, again given your background, warrant cumulative sentences of perhaps 3 months for the utensils and 6 months for the escape.

[30] All of that would suggest that the total sentence ought to be over 6 years, but, I am required to look at the totality of the offending and a sentence of over 6 years would be too long in the circumstances. I am also required to look at Mr Taru's sentence. Offenders who are prepared to co-operate with the Police can expect a significant reduction in their sentence - in some cases as much as half - and although the Chief Justice does not mention the co-operation and although Mr Taru has since failed to co-operate it was obviously a factor which influenced the length of the term of imprisonment to which he sentenced Mr Taru.

[31] In looking at the appropriate sentence also, I need to take into account that you have been in custody on remand for "give or take" a year, and that unusually and arguably unjustly, Cook Islands Law does not automatically deduct from a sentence imposed the time spent by an offender in custody on remand.

[32] All of that leaves me to conclude that the appropriate sentence to be imposed upon you for each of the burglaries is one of 5 years imprisonment. In the circumstances given your background and the different nature of the offending, you are sentenced to 3 months imprisonment for possession of the utensils and 6 months imprisonment for escaping, with those terms to be cumulative on the 5 year term.

[33] In the result, you will spend 5 years 9 months in prison.

Hugh Williams J