Mafile'o v Police

[2018] NZHC 428

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE

CRI 2017-419-0000

[2018] NZHC 428

BETWEEN

ATOMI MAFILE’O

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:

12 December 2017

Counsel:

T Sutcliffe for Appellant

D J McWilliam for Respondent

Result:

12 December 2017

Reasons:

14 March 2018

REASONS JUDGMENT OF DUFFY J

Solicitors:

Crown Solicitor, Hamilton Gavin Boot Law, Hamilton

MAFILE’O v NEW ZEALAND POLICE [2018] NZHC 428 [12 December 2017]

[1]    The appellant, Atomi Mafile’o, pleaded guilty and was convicted in the District Court on one charge of making an intimate visual recording.1 He was sentenced to three months’ imprisonment.2

[2]    On 12 December 2017 I heard and allowed Mr Mafile’o’s appeal. In place of the sentence of three months’ imprisonment I imposed a sentence of nine months’ supervision, with the special condition that Mr Mafile’o attend such programmes as the Probation Officer directs and 250 hours’ community work. My reasons for doing so now follow.

Facts of the offending

[3]    The offending occurred on 25 May 2017. The victim was a teenage female international  student  from  Japan,  who  was  staying  at  the  home  of  Mr  and  Mrs Mafile’o. Mr Mafile’o deliberately set up his cellphone to record the victim while she was getting ready in the bathroom for a shower. She noticed and recognised the implications of the arrangement which caused her to inform Mr Mafile’o’s partner. When challenged Mr Mafile’o immediately admitted what he had done. There was restorative justice between him and the school, and he offered to pay reparation. The victim returned to Japan and her family.

Sentencing

[4]    The sentencing Judge recognised the victim’s vulnerability. She was a stranger to New Zealand and she was staying at the Mafile’o home on the basis it offered a safe place for her to stay. Accordingly, the sentencing Judge considered there had been an extreme breach of trust.

[5]    At the time of sentencing an assessment was done for a sentence of home detention but Mr Mafile’o’s home was not suitable as it could not be electronically monitored.

1      Crimes Act 1961, s 216H; the maximum penalty for which is three years’ imprisonment.

2      Police v Mafile’o [2017] NZDC 27090.

[6]    The recommendation in the pre-sentence report was for intensive supervision and community work. Mr Mafile’o offered to pay $1,800 in reparation which was the loss the school incurred as a result of having to pay the exchange student’s fees. He also offered $500 as emotional harm reparation. The Judge found that insufficient. Whilst she gave him credit for the $1,800 she considered emotional harm reparation was better represented by $1,000 which she ordered him to pay. This reparation totalled $2,800.

[7]    The Judge reached the view that a short term of imprisonment needed to be imposed, not only as a deterrent to Mr Mafile’o should he be tempted in the future to conduct himself in a similar way, but also as a reminder to him of the consequences of his offending and a general message to people in his position. She adopted a starting point of four months’ imprisonment, which she reduced to three months to recognise his guilty plea and in recognition of the restorative justice participation and reparation ordered.

[8]    I considered the sentence to be manifestly excessive. Further, this outcome was the result of the Judge failing to give proper recognition to relevant sentencing factors that she was obliged to consider.

[9]    The Judge paid no regard to Mr Mafile’o’s previous good character.3 He was 64 years of age and had no previous convictions. He was entitled to credit for that. He had immediately admitted the offending and pleaded guilty at the earliest opportunity.4 Recognition of his participation in restorative justice and the reparation he had offered to pay in my view demonstrated genuine remorse over and above that represented by a guilty plea, which  warranted separate recognition.5  In  my view  Mr Mafile’o was entitled to: (a) a full 25 percent discount for the guilty plea; (b) a ten percent discount for previous good character and his offer to make amends by participating in restorative justice and making reparation; and (c) a five percent discount for genuine remorse. Such discounts would effectively reduce the sentence from a starting point of four months’ imprisonment to around two months’

3      Sentencing Act 2002, s 9(2)(g).

4      Sentencing Act 2002, s 9(2)(b).

5      Section (9)(2)(f) and s 10(1)(a) of the Sentencing Act 2002, ss 9(2)(f) and 10(1)(a); Hessell v R

[2010] NZSC 135; [2011] 1 NZLR 607.

imprisonment.  Given  the  requirements  in  the  Parole  Act  for  short  sentences  Mr Mafile’o would necessarily only serve half of that sentence.6

[10]   It is a general principle of sentencing policy that a Court should give consideration to non-custodial sentences in preference to a very short sentence of imprisonment. Mr Mafile’o was employed. He had never been involved in the criminal justice system before. It seemed to me it would be incongruous to impose a sentence of two months’ imprisonment on someone in his circumstances. A non- custodial sentence which involved community work and supervision was not a soft option. Such a sentence was sufficient to denounce and deter his conduct and it satisfied the requirement of being the least restrictive sentence to be imposed.

6      Parole Act 2002, s 86.