Maile v Police

[2020] NZHC 1845

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2020-404-000189

[2020] NZHC 1845

BETWEEN

JUNIOR MAILE

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:

27 July 2020

Appearance:

Appellant in person

SBC O’Connor for Respondent

Judgment:

28 July 2020

JUDGMENT OF DOWNS J

This judgment was delivered by me on Tuesday, 28 July 2020 at 3.30 pm.

Registrar/Deputy Registrar

Solicitors:

Crown Solicitor, Auckland. Copy to: Appellant

MAILE v POLICE [2020] NZHC 1845 [28 July 2020]

The appeal

[1]        Junior Maile appeals an 18-month prison sentence. Mr Maile pleaded guilty to a charge of burglary following a sentence indication. He contends the sentence is much too long. Mr Maile is self-represented.

Background

[2]        On the afternoon of 14 February 2020, Mr Maile and two others forced their way into the victim’s home and stole electronic devices, including a TV. The victim initially hid under a bed, then fled. Mr Maile and his co-offenders removed two closed-circuit television cameras before going inside. They then searched the home, rummaging through it.

[3]        Mr Maile told the pre-sentence report writer he was under the influence of methamphetamine and went to the home to retrieve a PlayStation on loan to the victim. Mr Maile said he became angry when he could not contact the victim, and decided to take property to “hold” or “swap”.

[4]        The report assessed Mr Maile as high risk of re-offending, and “a high risk of causing physical harm to the community”. It said Mr Maile has “a history of non-compliance on community-based sentences/orders, including EM and system alerts for forensic mental health, risk to Police staff, gang associations and violence”.

[5]        Judge R J Collins adopted a starting point of two years and three months’ imprisonment. The Judge added three months for Mr Maile’s criminal history, deducted four months for “potential or possible mental health issues”,1 then gave full credit (25 percent) for the guilty plea.

1      Police v Maile [2020] NZDC 8521 at [23].

Mr Maile’s case

[6]        Mr Maile argues the starting point is too high. So too the uplift. Mr Maile says he is not “a recidivist burglar”. Mr Maile also argues the COVID-19 emergency prevented him from placing a cultural report before the Judge.2

Principle

[7]        A sentence appeal may be allowed only if the appeal Court concludes there has been an error in the sentence and a different one should be imposed.3

Analysis

[8]        In Arahanga v R, the Court of Appeal said the starting point for a burglary of a home is between 18 and 30 months’ imprisonment.4 In Macartney v R, the same Court upheld a starting point of two years and three months’ imprisonment for a single burglary in which two offenders were attempting to recover a debt.5 That offending occurred at night but no property was taken.

[9]        These cases reveal Judge Collins’ starting point as available given aggravating factors: premeditation;6 multiple offenders; forced entry; a search of the home; and a real risk of confrontation with the victim.

[10]      As observed, the Judge added three months for Mr Maile’s criminal record. Increases of this nature require care to ensure an offender is not punished again for earlier offending. Mr Maile has a very long criminal record, including a long list of dishonesty offences. Mr Maile has two convictions for burglary (in addition to the burglary in this case); 10 convictions for unlawfully taking or possessing property; eight convictions for theft or shoplifting; two convictions for fraud; and two for money laundering. It was  therefore  open  to  the  Judge  to  increase  the  sentence  by  three months.

2      Sentencing Act 2002, s 27.

3      Criminal Procedure Act 2011, s 250.

4      Arahanga v R [2013] 1 NZLR 189, [2012] NZCA 480 at [78].

5      Macartney v R [2017] NZCA 340.

6      Inferable given weight of numbers.

[11]      Mr Maile contends the COVID-19 emergency prevented him from obtaining a cultural report. Such a report can illuminate mitigating features. However, so too can other media; most obviously, the pre-sentence report. Mr Maile’s pre-sentence report referred to self-reported schizophrenia and associated treatment. Judge Collins deducted four months for this though it was based on self-reporting.

[12]      I gave Mr Maile an opportunity to obtain a cultural report before the appeal was heard. Mr Maile said he no longer wanted one.7 At the hearing, I asked Mr Maile about his background. Mr Maile said he was raised by his mother and got into trouble in the absence of a male role model. Mr Maile offered no detail.

[13]No error arises in relation to mitigating features.

[14]      In summary, the starting point and increase were open to the Judge, as was the Judge’s approach to mitigating features. The Judge made no error. The sentence is not too severe.

Result

[15]The appeal is dismissed.

……………………………..

Downs J

7 Minute of Downs J of 19 June 2020 at [4].