Police v Mataio [2019] CKHC 36; CR 635 of 2018 (20 September 2019)

IN THE HIGH COURT OF THE COOK ISLANDS

HELD AT RAROTONGA
(CRIMINAL DIVISION) CR NO. 635/18

POLICE

v

EDWIN MATAIO

Date: 20 September 2019

Appearances: Snr Sgt. F Tararo for Prosecution

Mr M Short for Defendant

SENTENCING NOTES OF THE HONOURABLE JUSTICE PATRICK KEANE

[09:38:13]

[1] Edwin Mataio, you appear for sentence for a single offence on 1 November 2018 in Avatiu, possessing cannabis seeds, the seeds of a prohibited plant which you are not authorised to cultivate.
[2] On 1 November 2018 a search warrant was executed at your home in Avatiu. As a result, a brown envelope with a small plastic zip lock bag containing seven cannabis seeds was found hidden inside your clothes hanging on the wall inside your bedroom.
[3] You were picked up from work and interviewed by the police. You stated that you had found the small zip lock bag containing the seeds at the Palace Takeaway, Avatiu. You took it home and placed it in the small brown envelope to hide it.

Pre-sentence report

[4] You were then 24 years of age, your pre-sentence report says. It describes you as having suffered ill heath at an early age. You had heart problems as a child and many operations and mainly lived in a hospital in New Zealand.
[5] When you returned home you continued to live with your family, as you do now. You are self-employed. You cut grass and clean yards on business properties. Your pay varies depending on the work you have. You assist your family financially. You try to save but that is difficult. You are not in debt.
[6] You accepted at once when asked whether the statement of facts, as I have set it out, was accurate. You said that it was and did not want to comment further. You wished you had not taken the seeds home.
[7] Your parents have expressed great concern about your involvement in this offending. In sentencing you they ask me to take into account that they depend on you for support and they apologise on your behalf.
[8] You are assessed very favourably, ultimately, as very supportive to your family. Your offence may have resulted from the influence of friends. Supervision is recommended as an alternative to imprisonment.
[9] It is recommended that you be sentenced to 12 months’ probation supervision, with the first 6 months on community service, and with conditions that you abstain from prohibited drugs, attend counselling or a workshop and not leave the country without approval of this Court.

Submissions

[10] The police endorse that assessment but recommend instead, having regard to three decisions of this Court, that you be convicted and fined. The police suggest a fine up to $1000.
[11] Your counsel submits, essentially for the reasons advanced by your parents, that if the choice is between a fine of that order, $1000, and a sentence of supervision, the latter is preferable. You would find the former crushing and would not be able to support your parents.
[12] He has confirmed to me that since you first appeared for this offence in November 2018, you have not come to the attention of the police again. A fact which is consistent with your appearance on this occasion for the very first time for any offence.

Comparable cases

[13] As the Court of Appeal of the Cook Islands recently said in Hunt, despite the fact that deterrent sentences are called for to deter drug offending, offences of the least serious order may deserve a sentence that reintegrates and rehabilitates. That is illustrated in three cases to which the police have referred me.
[14] In Police v Tereora where in excess of 200 seeds were discovered on a search warrant, and also loose cannabis leaves suggesting active cultivation, Nicholson J imposed an $800 fine to reflect the fact that the offence had been admitted at the earliest opportunity and other circumstances personal to the offender.
[15] In 2012, five years later, in Crown v Taripo, where a first offender had been found in possession of a bong, which he admitted to using eight times, Williams J imposed 12 months probation with 6 months community service; the sentence recommended in your case.
[16] In his view, reflecting the trend of decisions, those charged with smoking cannabis or possessing it or a utensil had to be treated similarly. Those charged with more serious offences, such as growing or importation, could face lengthy prison terms. He imposed a rehabilitative sentence because the offender required active support and supervision.
[17] Five years later, on 8 December 2017, in Police v Ikimotu, Grice J imposed a fine of $500 for what proved to be 16 cannabis seeds, and a $250 fine for possession of a bong.
[18] She too said that drug offending must be treated seriously in the Cook Islands, but she treated as significant that Mr Ikimotu was a first offender, had pleaded and expressed remorse, and could pay a fine. That is why she took the exceptional course of fining him.

Conclusion

[19] In your case there is a combination of factors, which suggests to me that your offending is in the very least serious category.
[20] The first is the offence itself. You possessed seven seeds; the least quantity by far, compared with the cases I have referred to. The seeds were not in themselves evidence of any wider offending. Nor was there any independent evidence of it. Your explanation that you picked them up is to be accepted on its face. There is nothing to contradict it.
[21] The second is, as I have said, that this is your first appearance for any offence. And in the nine months since, you have not offended. Your brother’s letter, in which he describes you as unlikely ever to offend again, once more deserves acceptance. There is nothing to contradict it.
[22] The sentence of 12 months probation recommended is the minimum such sentence able to be imposed but seems to me disproportionate. Supervision is intended to assist as well as sanction. It would serve no obvious rehabilitative purpose and would be an excessive sanction.
[23] A fine of the order that has been imposed in the comparable cases would also be excessive. They involve significantly more seeds than you had. And so it is open to me to fine you a lesser sum, taking into account your circumstances.
[24] Possession of the seeds, as is emphasized often by this Court, is in itself a significant offence regardless of the number. Seeds are possessed in order to cultivate. And cultivation is a very serious offence. But in your case these possibilities do not begin to arise.
[25] You are able to be given the benefit of the doubt and I fine you $250 and Court costs $50. That will enable you to continue to support your family.

Patrick Keane, J