MAILO v POLICE [2020] NZHC 3164

MAILO v POLICE [2020] NZHC 3164 [2 December 2020]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECRI-2020-404-389[2020] NZHC 3164BETWEEN GERSHOM NAPOLEON MAILOAppellantAND NEW ZEALAND POLICERespondentHearing: 30 November 2020Appearances: W Mohammed for the AppellantT Mijatov for the RespondentJudgment: 2 December 2020JUDGMENT OF GORDON JThis judgment was delivered by meon 2 December 2020 at 2 pmRegistrar/Deputy RegistrarDate:Solicitors: Crown Solicitor, ManukauPublic Defence Service, ManukauIntroduction[1] The appellant, Gershom Napoleon Mailo, was sentenced to nine months'supervision1 after pleading guilty to one charge of unlawfully carrying an imitationfirearm,2 one charge of assault on a person in a family relationship3 and one charge ofbehaving threateningly.4 His application for discharge without conviction wasdeclined. He now appeals against that decision.Background[2] The first charge arose out of Mr Mailo's actions on the evening of 27 March2019. He was seen on a residential street in Mangere holding a plastic toy gun whichresembled a shotgun. Mr Mailo had the item in full view of the public, was pointingit in the air, and was shouting what were described as gang related chants. Hisexplanation for his actions was that he was acknowledging the death of a friend at thatlocation.[3] The other two charges relate to an incident between Mr Mailo and the victim,his then partner, at their home on 30 May 2019. An argument developed after he readsome text messages on her phone. He pushed her and she fell onto a bed. He pushedher again and tried to stop her from leaving the room. She attempted to leave via awindow but Mr Mailo took her by the hair and pulled her back into the room. Hethreatened her by saying "You don't want me to fuck shit up, I'll smash everything".The victim left the house after this and contacted Police. She returned insideafterwards to look after her children who remained in the house. After Police arrived,Mr Mailo told the victim to "Shut up, go back inside or I'll kick your head in". Thevictim did not suffer any visible injury.1 Police v Mailo [2020] NZDC 16541.2 Arms Act 1983, s 46(1). Maximum penalty: two years' imprisonment or a fine not exceeding$4,000. Note: the Arms Legislation Act 2020 reduced the penalty to one year imprisonment, whichcame into force on 25 June 2020.3 Crimes Act 1961, s 194A. Maximum penalty: two years' imprisonment.4 Summary Offences Act, s 21(1)(a). Maximum penalty: three months' imprisonment or a fine notexceeding $2,000.District Court decision[4] On 18 August 2020, Mr Mailo was sentenced in the District Court at Manukau.[5] The Judge assessed the gravity of the offending in May 2019 as low tomoderate. The Judge identified several aggravating features. The victim wasvulnerable – Mr Mailo's then partner – and there was threatened and actual physicalviolence (though no serious injury was inflicted). The actual physical violenceinvolved the head. These aggravating features were balanced against mitigatingfactors which included a guilty plea at the earliest opportunity, remorse andrehabilitation. The latter included completion of a violence prevention programme,which gave Mr Mailo insight into his offending and included development of a planto reduce the likelihood of future offending, and voluntary community work in hischurch (though the Judge considered that some of that work involved his existingresponsibilities in the church).[6] As to consequences, the Judge acknowledged three advanced on behalf ofMr Mailo. First, there was the issue of Mr Mailo's opportunities for employmentgenerally and, in particular, his intention to train as a social worker (formed whilecompleting the violence prevention course). Second, his wish to travel overseas toAustralia to visit family members. Finally, there was the effect on Mr Mailo's standingin the Samoan community. In assessing consequence, the Judge consideredinformation provided by Police from the relevant professional body that convictionswould not preclude registration as a social worker and that each application isconsidered individually. The Judge concluded conviction would not necessarilyprevent Mr Mailo from pursuing a career as a social worker.[7] Nor did the Judge accept Mr Mailo's future employment prospects would beunduly limited by these types of convictions. Mr Mailo's travel plans were expressedin general terms so assessment of consequence was challenging. In the circumstances,the Judge did not consider Mr Mailo should avoid the scrutiny of border authorities.Lastly, the Judge observed Mr Mailo's relative youth when it came to standing in theSamoan community. He noted greater weight is given to this consideration whereleaders have standing in a community which arises from many years of substantial andcontinuous service. For them, the effect of conviction on their standing may beconsiderable. The Judge observed that the consequences for Mr Mailo, given his age,was lower.[8] The Judge concluded that the consequence of conviction would not be out ofall proportion to the gravity of the offending in the circumstances.Approach on appeal[9] An appeal against a refusal to grant a discharge without conviction is by wayof rehearing. It requires the Court on appeal to make a fresh assessment in accordancewith its own opinion.5Legal test[10] Section 106 of the Sentencing Act 2002 (the Act) gives the Court a discretionto discharge an offender without conviction. This discretion is subject to the test ins 107 being satisfied. Section 107 provides:107 Guidance for discharge without convictionThe court must not discharge an offender without conviction unlessthe court is satisfied that the direct and indirect consequences of aconviction would be out of all proportion to the gravity of the offence.[11] In assessing the gravity of the offence, the Court is not restricted to anassessment of the conduct that gives rise to the charge. In R v Hughes, the Court ofAppeal approved the comments of Miller J in Delaney v Police where the Judge said:6[29] I consider that "the gravity of the offence" should be read asincluding not only the offence itself but also anything that may affect theCourt's subsequent assessment of overall culpability. That includes guiltypleas, expressions of remorse and the Court's assessment of how likely it isthat the offender will reoffend, the victim's perspective, and any consequencealready suffered by way of reparation, community work, or publicity.5 R v Hughes [2008] NZCA 546, [2009] 3 NZLR 222 at [11].6 Delaney v Police HC Wellington CRI-2005-485-22, 22 April 2005, at [29] as cited in R v Hughes[2008] NZCA 546, [2009] 3 NZLR 222 at [27].[12] The law in relation to ss 106 and 107 is succinctly stated by the Court of Appealin Taulapapa v R:7[22] It is settled law that a court considering a discharge should: examinethe gravity of the particular offence, taking into account all aggravating andmitigating factors of the offending and the offender; identify the direct andindirect consequences of conviction; and consider whether thoseconsequences are "out of all proportion" to the gravity of the offence. Onlythen does it move to considering the residual discretion under s 106. Theremust be a "real and appreciable" risk that any given consequence will happen:this standard recognises that the court is assessing the likelihood of somethingthat may happen in the future.[23] The offender should ordinarily put information before the court toprovide a factual basis for a decision that the test has been satisfied. There isno legal onus on the offender to do so however, and the standard of proof ins 107 is simply that the judge be satisfied that the requirements of the sectionare met.(citations omitted)[13] A three-step approach is thus required by the Court which must:(a) determine the gravity of the offence, having regard to both theaggravating and mitigating factors of the offending and the offender;(b) determine the direct and indirect consequences of conviction; and(c) determine whether those consequences are out of all proportion to thegravity of the offence.[14] Only if the threshold in (c) above is met can the Court move to consider theresidual discretion under s 106.8 There must be a "real and appreciable" risk that anygiven consequence will happen.9 This standard recognises that the Court is assessingthe likelihood of something that may happen in the future.10 If the s 107 test issatisfied, a discharge will normally follow.7 Taulapapa v R [2018] NZCA 414.8 Z (CA 447/2012) v R [2012] NZCA 599, [2013] NZAR 142 at [27] and Taulapapa v R, above n 7,at [22].9 DC (CA47/2013) v R [2013] NZCA 255 at [43] and Taulapapa v R, above n 7, at [22].10 Taulapapa v R, above n 7, at [22].SubmissionsAppellant's submissions[15] Mr Mohammed, for Mr Mailo, submits that the gravity of the offending is low.He says the Judge's finding was incorrect because it did not take account of relevantmitigating factors, including the victim's views (which were not available to thesentencing judge). An affidavit from the victim is tendered as fresh evidence.[16] He further says that the consequences of conviction, particularly on Mr Mailo'sability to travel and the shame and stigma he will face in his Samoan community, areout of all proportion to the gravity of the offending. Employment is not advanced asa consequence on appeal.[17] There was an affidavit from Mr Mailo before the District Court Judge on theabove issues. On appeal, Mr Mohammed seeks to tender further affidavit evidencefrom Mr Mailo as to the consequences for international travel and, in particular, theimportance of his sons having a link with family members in Australia and the effecton his standing in the Samoan community.Respondent's submissions[18] Mr Mijatov, for the respondent, submits there was no error in characterisingthe offending as low to moderate in seriousness or in the assessment of theconsequences of conviction. The admission of the proposed new evidence is notopposed but it adds nothing more than some detail to the consequences for Mr Mailowhich were before the District Court Judge. The evidence from the victim does notalter the correctness of the Judge's assessment that a discharge was not justified.New evidence[19] While it cannot be said that the new evidence qualifies as fresh evidence, Iadmit the two affidavits in the interests of justice.GravityDomestic violence offences[20] In considering Mr Mailo's offending in May 2019, there are three aggravatingfactors. First, the victim of the offending was vulnerable. She was Mr Mailo's partner.Second, violence was both threatened and used. Third, the violence involved thevictim's head, either by directly applying force or in taking her by the hair. The victimdid not suffer "visible injury", and it is accepted no serious injury.[21] The relevant mitigating factors are that the appellant pleaded guilty at theearliest opportunity; demonstrated remorse; and, undertook rehabilitation activitieswhich directly addressed his offending and voluntary work in his church and foranother community organisation.[22] Mr Mohammed points to three specific mitigating factors which he says theJudge did not properly account for. They are undertaking not just one but two violenceprevention programmes, volunteer work with a community organisation (as well aswith his church) and that Mr Mailo obtained stable employment. However Mr Mailoaddressed these points in his affidavit which was before the Judge. Mr Mijatov, forthe respondent, says therefore these were all matters taken into account by the Judgein reaching a conclusion on gravity.[23] I do not consider the lack of a specific reference to these three matters affectsthe gravity assessment. In relation to the one violence prevention programme theJudge mentioned, he commented that through the programme Mr Mailo had gainedgreater insight into the reasons for his offending and that the formulation of a safetyplan reduced the likelihood of Mr Mailo offending again in the future. Mention of thesecond programme (which Mr Mailo had not completed at that time) would haveadded little, if anything, to the gravity assessment.[24] Similarly I do not consider that the lack of a specific reference to volunteeringwith another community organisation as well as with his church, alters the assessment.The Judge acknowledged that the hours involved in Mr Mailo's community workthrough his church were likely to have been "significant". And finally, that Mr Mailowas in employment that was stable, rather than changing jobs frequently, is a matterthat might have been added into the assessment. It would however have added limitedweight.[25] Mr Mohammed further points to the victim's evidence which was not beforethe Judge. Her evidence sets out the background to the end of her relationship withMr Mailo and her assessment of his conduct since. She says that they were goingthrough a "really rough patch" at the time. She says she had not been a good partner.She describes a change in Mr Mailo's temperament and outlook after resuming contactwith him since he was sentenced (contact prior was precluded by bail conditions). Shehas forgiven Mr Mailo for his offending against her and she speaks highly of hischaracter. Mr Mohammed notes her support for the application and submits herevidence goes to Mr Mailo's good character, remorse and success in engaging inrehabilitation. Mr Mohammed says it is appropriate for the Court to take her viewsinto account.11[26] As noted, Mr Mijatov does not object to the admission of the victim's affidavitand accepts her views are relevant. However, so far as good character, remorse andrehabilitation goes, he submits these were matters considered by the Judge in any eventand properly taken into account in reaching his assessment.[27] Although the victim's views were not before the Judge, the only real additionalinformation is that she supports the application. As Mr Mijatov submits, all the othermatters she mentions were before the Judge. The addition only of her support forMr Mailo does not alter the assessment of gravity.[28] The use of actual violence and threats were moderate in seriousness.Mr Mailo's efforts since his offending against the victim have been consistent andongoing. He has done much to demonstrate the genuineness of his remorse and toaddress the causes of his offending by way of rehabilitation. He is to be commendedfor his very considerable efforts. All of this was acknowledged by the Judge.11 Sentencing Act, s 10(1)(c); Bailey v Police [2015] NZHC 3051 at [33].[29] I consider the Judge's assessment was correct and properly took account of allthe matters put to him. The gravity of the offending was low to moderate. The victim'sevidence supports but does not add to this assessment. She may wish to takeresponsibility for the end of their relationship but that cannot ever explain or justifyviolence and serious threats against a domestic partner.Arms Act offence[30] The Judge did not separately consider the gravity of the Arms Act offending.It is not clear why he did not do so. However, Mr Mohammed submits the totality ofMr Mailo's offending, both the violence offences and the Arms Act offence, is relevantin considering the consequences of conviction so far as travel to Australia isconcerned. He submits the combined effect of this offending will prevent Mr Mailofrom entering Australia in the future.[31] The agreed summary of facts discloses three relevant points which go to thegravity of Mr Mailo's offending under the Arms Act charge. The presence of the toygun goes to the essence of the charge and is not an aggravating feature. However, thelocation is an aggravating feature of this offending. It was a public place where aperson had recently died. The summary of facts does not give any details of this death,and I will return to that shortly, but Mr Mailo told Police that his friend had died there.The action was undertaken in full view of the public. Finally, the words used byMr Mailo were of concern.[32] In his affidavit for sentencing in the District Court, Mr Mailo provides furthercontext to this offending. His evidence indicates the offending was more serious thanconveyed in the summary of facts. I acknowledge, before reviewing his evidence, thatthe candid nature of his explanation reflects well on his expressions of remorse andhis acceptance that his actions on this occasion were wrong.[33] Mr Mailo's evidence is that he and his brother, with others, visited the site ofthe offending in Mangere because a common friend of theirs had been recently shotand killed there in a gang shooting. Mr Mailo says he had been drinking. He initiallyremained in the car, his brother's car, when they arrived. As he left the car, he noticedone of his son's plastic toy guns and picked it up. He says a red bandana was hangingout of one of his pockets. This is an item associated with a particular South Aucklandgang. He raised the toy gun and called out a word associated with that gang.[34] I note Mr Mailo's statement that he is not a member of a gang but there is thefollowing: he went to the site of a gang shooting where a man was killed; he wascarrying a coloured item of clothing which was associated with a gang; and, he calledout a word used by members of that gang while holding the toy gun aloft. While thereis no evidence to contradict Mr Mailo's evidence that he is not a member of a gang thethree aspects of his conduct I have referred to are all aggravating features of theoffending. To residents surrounding the site, where a gang related shooting causingdeath had recently occurred, Mr Mailo's outward appearance and actions, togetherwith his possession of a firearm (albeit an imitation), would have been deeplydistressing and troubling, signalling a significant escalation in tensions and thepossibility of another imminent shooting in their community. As against that, no onecould in fact have been shot, because the firearm was an imitation one.[35] I have already acknowledged Mr Mailo's forthright and comprehensiveexplanation of this offending in his evidence. I consider this a mitigating factor in thathe takes full responsibility for his actions and that goes to the genuineness of hisremorse. He also pleaded guilty at the earliest possible opportunity. Taking accountof the nature of the offending and these mitigating features, I consider the gravity ofthe offending on this occasion was moderate.Direct and indirect consequences of conviction[36] As noted, Mr Mailo advances two direct and indirect consequences ofconviction. First, there is his ability to travel overseas, particularly to Australia.Second, there is his standing in his Samoan community.[37] Mr Mohammed submits that while Mr Mailo presently has no definite plans totravel overseas, he has travelled to Australia in the past to visit family and anticipatesdoing so in the future. In particular, he expects to take his young sons to Australia forthis reason. Limits on Mr Mailo's capacity to travel will, Mr Mohammed says, affectthem too.[38] The principal issue to address is whether convictions for these offences willfurther restrict Mr Mailo's travel to Australia. Mr Mijatov observes that Mr Mailoalready has convictions for driving related offences from 2014 and 2015. These wouldhave to be declared by Mr Mailo before travelling to Australia. He has in fact travelledto Australia since those convictions. Mr Mijatov submits that, given these existingconvictions, difficulties travelling to Australia may be only a matter of degree. Thissubmission, however, appears predicated on an assumption that Australian bordercontrol authorities would give similar weight to somewhat minor driving offences asthey would to domestic violence and firearms offences. That seems unlikely.[39] Mr Mohammed's submissions contain several extracts from relevantinstruments which govern travellers to Australia. A ministerial statement outlining thepurpose of one of these instruments says that it is to " stop the entry to Australia ofpeople convicted of violence crimes against women and children". However, theterms of the provisions, as provided by Mr Mohammed specify "criminal offending orother serious conduct" and a character test has regard to "the person's past and presentcriminal conduct" and "the person's past and present general conduct". This wouldsuggest that Mr Mailo's conduct would have to be disclosed by him whether or not hehad been convicted.[40] Mr Mohammed's further submission regarding the statutory provisioncontaining the exception to the character test for "Pardons etc" does not establish thatdischarges without conviction would come within the scope of "quashed or otherwisenullified". The Court is not in a position to interpret foreign law without the assistanceof expert evidence. In the absence of evidence on this point, Mr Mohammed'ssubmissions provide little assistance. The most helpful point which can be taken fromthese submissions is that Mr Mailo's capacity to travel to Australia would not beprevented by conviction but would likely be more difficult.[41] Which brings me to the submissions on the shame and stigma of conviction forMr Mailo and the consequences for his standing in his Samoan community.Mr Mohammed accepts that shame and stigma are a consequence of any criminalconviction. It reflects the public function of the criminal justice system. But, he says,the stigma and shame may be out of all proportion to the gravity of the offending. Andit is so in this case.[42] Mr Mijatov observes that, on Mr Mailo's own evidence, stigma attaches to theoffending (violence and threats against women) rather than to conviction. Moreover,Mr Mijatov, again relying on Mr Mailo's evidence, submits that becoming a matai(which is a new matter raised in this court) is not precluded by convictions. He submitsthat the consequences are not out of all proportion to the gravity of the offending.However, Mr Mailo's evidence goes further on the issue. Mr Mailo states that theconsequences will be on his status as a matai, and the position of his family in hiscommunity, not whether he can become a matai, which Mr Mailo says is still possiblewith these convictions.[43] I return to Mr Mijatov's first submission which is that Mr Mailo's evidencedescribes consequences which flow from the offending not conviction. Convictionsrecord the fact of offending; as I read Mr Mailo's evidence, the stigma he carries comesnot from conviction but from his offending. To adapt his language, if he does not haveclean hands, if he is not pure, if he cannot move on, it is, I apprehend, in consequenceof his offending rather than any convictions. Mr Mailo records his efforts to addresshis offending in terms of his Samoan traditions and his place in his community. Icommend those efforts, directed as they are to restoring balance in his relationshipswith the victim, his family and his community. I want to be absolutely clear thatMr Mailo has done the right thing in pursuing fa'amagalo. However, a dischargewithout conviction does not change the past; Mr Mailo carries the consequences of hisactions whether or not he is convicted.[44] I am satisfied that there will be some impact on Mr Mailo's standing in hisSamoan community if he is convicted. For him, he will not have completed the finalstep in achieving fa'amagalo, which he says would be a discharge. However, thematters identified in his evidence arise from his offending rather than conviction. Herefers to the fact that in Samoan culture women are loved and respected. People donot put their hands on women. People who do this are wrong and they are notpractising Samoan culture. He poses a question – how would he like it if somebodyelse was violent to his mother or his sister or his female friend? He says it is never"ok" to show violence towards women or anyone else for that matter. He refers totautua which he says is about service and which stems from love, responsibility, caringand dignity. Taking into account those matters, consequences for his standing, and hisfamily's standing in their Samoan community flow, in my view, largely as aconsequence of his offending.Proportionality[45] Having considered the gravity of the offending and the consequences ofconvictions for the offending, I must now consider the question of proportionality.The consequences must be out of all proportion to the gravity of the offence.[46] I have concluded that the domestic violence offending was low to moderate inseriousness and that the Arms Act offence was moderate. Travel to Australia may bemore difficult with convictions but it does not appear Mr Mailo will be unable to travelto Australia. Mr Mohammed's submission that the combination of domestic violenceand firearms convictions will raise serious difficulties is acknowledged but thefirearms offence is by definition one involving an imitation firearm rather than anactual firearm. For this reason, Thompson v Police, involving the discharge of apaintball gun resulting in a charge under s 48 of the Arms Act, can be distinguished.12The circumstances of this offending are a matter which can be explained to bordercontrol authorities.[47] The other authorities referred to by Mr Mohammed can also be distinguished.These are cases which turn on very particular facts. In Shi v Police, the family violenceoffending was similar to this case and the gravity was assessed as low to moderate.13The appellant needed to travel to Australia and the United States to obtain stock forhis businesses. Evidence from a solicitor and registered migration agent was that hewould likely be refused a character waiver in the absence of any "domesticconnections" to Australia.14 Woolford J observed that "the need for a character waiveris not an absolute bar" to the appellant's ability to travel to Australia on business buthe had evidence from the solicitor to establish that travel to Australia would be12 Thompson v Police [2013] NZHC 1369 at [15].13 Shi v Police [2020] NZHC 59 at [21].14 At [23].refused.15 Conviction was out of all proportion to the gravity of the offending. Suchevidence was not adduced in the instant case. I adopt Woolford J's observation that"the courts generally leave issues relating to a person's immigration status to bedetermined by the relevant authorities".16[48] In ED v R, the particular circumstances of the appellant's employment, and theexpectation that she could travel to Australia at short notice to undertake heremployment duties, in the context of offending which was lower in gravity thanMr Mailo's offending, led to the conclusion that conviction was out of all proportionto the gravity of the offending.17 As in Shi, above, there was evidence regarding theprocess the appellant would need to go through to obtain approval, making the process"significantly more onerous and time consuming".18 The Judge found that this wouldmake regular trans-Tasman travel as part of the appellant's employment difficult if notimpossible.19[49] While I acknowledge that travel to maintain family connections is importantand also that family matters can in some instances require urgent travel, Mr Mailosimply advances a generalised wish to travel to see family members and without anysupporting evidence of what the restrictions might be.[50] Finally, there is Northover v Police. In that case, Brewer J assessed theoffending to be at a low level of seriousness.20 And it was established theconsequences of conviction were serious for the appellant. His employer requiredannual Police checks for criminal convictions; several organisations he undertookvoluntary work for were "sensitive to criminal convictions". There was also anidentified risk to future employment as a result of the particular conviction for theparticular violence offences he had committed. There is no evidence before me thatthese factors apply to Mr Mailo and, as I have noted, consequences for his employmentare not pursued on appeal.15 At [24].16 At [22].17 ED v R [2019] NZHC 2857 at [22].18 Shi v Police, above n 13 at [22].19 At [22].20 Northover v Police [2020] NZHC 167 at [37].[51] Brewer J also addressed the appellant's Māori heritage and the impact ofconviction on his mana. Mr Mohammed places some emphasis on those findings but,as I have said, these are cases which turn on very particular facts. The appellant inNorthover was able to establish that conviction was detrimental to his mana. Thisaffected his standing in his community (earned over decades of effort), his voluntarywork and his relationship with his whānau. Brewer J accepted, on the evidence beforehim, that these consequences arose not from the offending but from conviction. But,as I have said above, the consequences for Mr Mailo's standing in his community flowfrom the offending rather than conviction. Any consequences arising from convictionare limited and are not out of all proportion to the gravity of the offending as assessedabove.[52] For all these reasons, the Judge correctly declined the application for dischargewithout conviction.Result[53] The appeal is dismissed.___________________________________Gordon J