Mailo v Police
[2020] NZHC 3164
•2 December 2020
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2020-404-389
[2020] NZHC 3164
BETWEEN GERSHOM NAPOLEON MAILO
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 30 November 2020 Appearances:
W Mohammed for the Appellant T Mijatov for the Respondent
Judgment:
2 December 2020
JUDGMENT OF GORDON J
This judgment was delivered by me on 2 December 2020 at 2 pm
Registrar/Deputy Registrar Date:
Solicitors: Crown Solicitor, Manukau
Public Defence Service, Manukau
MAILO v POLICE [2020] NZHC 3164 [2 December 2020]
Introduction
[1] The appellant, Gershom Napoleon Mailo, was sentenced to nine months’ supervision1 after pleading guilty to one charge of unlawfully carrying an imitation firearm,2 one charge of assault on a person in a family relationship3 and one charge of behaving threateningly.4 His application for discharge without conviction was declined. He now appeals against that decision.
Background
[2] The first charge arose out of Mr Mailo’s actions on the evening of 27 March 2019. He was seen on a residential street in Mangere holding a plastic toy gun which resembled a shotgun. Mr Mailo had the item in full view of the public, was pointing it in the air, and was shouting what were described as gang related chants. His explanation for his actions was that he was acknowledging the death of a friend at that location.
[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 read some text messages on her phone. He pushed her and she fell onto a bed. He pushed her again and tried to stop her from leaving the room. She attempted to leave via a window but Mr Mailo took her by the hair and pulled her back into the room. He threatened 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 inside afterwards 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”. The victim 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, which came 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 not exceeding $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 to moderate. The Judge identified several aggravating features. The victim was vulnerable – Mr Mailo’s then partner – and there was threatened and actual physical violence (though no serious injury was inflicted). The actual physical violence involved the head. These aggravating features were balanced against mitigating factors which included a guilty plea at the earliest opportunity, remorse and rehabilitation. The latter included completion of a violence prevention programme, which gave Mr Mailo insight into his offending and included development of a plan to reduce the likelihood of future offending, and voluntary community work in his church (though the Judge considered that some of that work involved his existing responsibilities in the church).
[6] As to consequences, the Judge acknowledged three advanced on behalf of Mr Mailo. First, there was the issue of Mr Mailo’s opportunities for employment generally and, in particular, his intention to train as a social worker (formed while completing the violence prevention course). Second, his wish to travel overseas to Australia to visit family members. Finally, there was the effect on Mr Mailo’s standing in the Samoan community. In assessing consequence, the Judge considered information provided by Police from the relevant professional body that convictions would not preclude registration as a social worker and that each application is considered individually. The Judge concluded conviction would not necessarily prevent Mr Mailo from pursuing a career as a social worker.
[7] Nor did the Judge accept Mr Mailo’s future employment prospects would be unduly limited by these types of convictions. Mr Mailo’s travel plans were expressed in 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 the Samoan community. He noted greater weight is given to this consideration where leaders have standing in a community which arises from many years of substantial and
continuous service. For them, the effect of conviction on their standing may be considerable. 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 of all 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 way of rehearing. It requires the Court on appeal to make a fresh assessment in accordance with its own opinion.5
Legal test
[10] Section 106 of the Sentencing Act 2002 (the Act) gives the Court a discretion to discharge an offender without conviction. This discretion is subject to the test in s 107 being satisfied. Section 107 provides:
107 Guidance for discharge without conviction
The court must not discharge an offender without conviction unless the court is satisfied that the direct and indirect consequences of a conviction 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 an assessment of the conduct that gives rise to the charge. In R v Hughes, the Court of Appeal 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 as including not only the offence itself but also anything that may affect the Court’s subsequent assessment of overall culpability. That includes guilty pleas, expressions of remorse and the Court’s assessment of how likely it is that the offender will reoffend, the victim’s perspective, and any consequence already 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 Appeal in Taulapapa v R:7
[22] It is settled law that a court considering a discharge should: examine the gravity of the particular offence, taking into account all aggravating and mitigating factors of the offending and the offender; identify the direct and indirect consequences of conviction; and consider whether those consequences are “out of all proportion” to the gravity of the offence. Only then does it move to considering the residual discretion under s 106. There must be a “real and appreciable” risk that any given consequence will happen: this standard recognises that the court is assessing the likelihood of something that may happen in the future.
[23] The offender should ordinarily put information before the court to provide a factual basis for a decision that the test has been satisfied. There is no legal onus on the offender to do so however, and the standard of proof in s 107 is simply that the judge be satisfied that the requirements of the section are 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 the aggravating 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 the gravity of the offence.
[14] Only if the threshold in (c) above is met can the Court move to consider the residual discretion under s 106.8 There must be a “real and appreciable” risk that any given consequence will happen.9 This standard recognises that the Court is assessing the likelihood of something that may happen in the future.10 If the s 107 test is satisfied, 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].
Submissions
Appellant’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 relevant mitigating factors, including the victim’s views (which were not available to the sentencing judge). An affidavit from the victim is tendered as fresh evidence.
[16] He further says that the consequences of conviction, particularly on Mr Mailo’s ability to travel and the shame and stigma he will face in his Samoan community, are out of all proportion to the gravity of the offending. Employment is not advanced as a consequence on appeal.
[17] There was an affidavit from Mr Mailo before the District Court Judge on the above issues. On appeal, Mr Mohammed seeks to tender further affidavit evidence from Mr Mailo as to the consequences for international travel and, in particular, the importance of his sons having a link with family members in Australia and the effect on his standing in the Samoan community.
Respondent’s submissions
[18] Mr Mijatov, for the respondent, submits there was no error in characterising the offending as low to moderate in seriousness or in the assessment of the consequences of conviction. The admission of the proposed new evidence is not opposed but it adds nothing more than some detail to the consequences for Mr Mailo which were before the District Court Judge. The evidence from the victim does not alter 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, I admit the two affidavits in the interests of justice.
Gravity
Domestic violence offences
[20] In considering Mr Mailo’s offending in May 2019, there are three aggravating factors. 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 the victim’s head, either by directly applying force or in taking her by the hair. The victim did not suffer “visible injury”, and it is accepted no serious injury.
[21] The relevant mitigating factors are that the appellant pleaded guilty at the earliest opportunity; demonstrated remorse; and, undertook rehabilitation activities which directly addressed his offending and voluntary work in his church and for another community organisation.
[22] Mr Mohammed points to three specific mitigating factors which he says the Judge did not properly account for. They are undertaking not just one but two violence prevention programmes, volunteer work with a community organisation (as well as with his church) and that Mr Mailo obtained stable employment. However Mr Mailo addressed these points in his affidavit which was before the Judge. Mr Mijatov, for the respondent, says therefore these were all matters taken into account by the Judge in reaching a conclusion on gravity.
[23] I do not consider the lack of a specific reference to these three matters affects the gravity assessment. In relation to the one violence prevention programme the Judge mentioned, he commented that through the programme Mr Mailo had gained greater insight into the reasons for his offending and that the formulation of a safety plan reduced the likelihood of Mr Mailo offending again in the future. Mention of the second programme (which Mr Mailo had not completed at that time) would have added little, if anything, to the gravity assessment.
[24] Similarly I do not consider that the lack of a specific reference to volunteering with another community organisation as well as with his church, alters the assessment. The Judge acknowledged that the hours involved in Mr Mailo’s community work through his church were likely to have been “significant”. And finally, that Mr Mailo
was in employment that was stable, rather than changing jobs frequently, is a matter that might have been added into the assessment. It would however have added limited weight.
[25] Mr Mohammed further points to the victim’s evidence which was not before the Judge. Her evidence sets out the background to the end of her relationship with Mr Mailo and her assessment of his conduct since. She says that they were going through 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 contact with him since he was sentenced (contact prior was precluded by bail conditions). She has forgiven Mr Mailo for his offending against her and she speaks highly of his character. Mr Mohammed notes her support for the application and submits her evidence goes to Mr Mailo’s good character, remorse and success in engaging in rehabilitation. Mr Mohammed says it is appropriate for the Court to take her views into account.11
[26] As noted, Mr Mijatov does not object to the admission of the victim’s affidavit and accepts her views are relevant. However, so far as good character, remorse and rehabilitation goes, he submits these were matters considered by the Judge in any event and properly taken into account in reaching his assessment.
[27] Although the victim’s views were not before the Judge, the only real additional information is that she supports the application. As Mr Mijatov submits, all the other matters she mentions were before the Judge. The addition only of her support for Mr 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 and ongoing. He has done much to demonstrate the genuineness of his remorse and to address the causes of his offending by way of rehabilitation. He is to be commended for 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 all the matters put to him. The gravity of the offending was low to moderate. The victim’s evidence supports but does not add to this assessment. She may wish to take responsibility for the end of their relationship but that cannot ever explain or justify violence 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 of Mr Mailo’s offending, both the violence offences and the Arms Act offence, is relevant in considering the consequences of conviction so far as travel to Australia is concerned. He submits the combined effect of this offending will prevent Mr Mailo from entering Australia in the future.
[31] The agreed summary of facts discloses three relevant points which go to the gravity of Mr Mailo’s offending under the Arms Act charge. The presence of the toy gun goes to the essence of the charge and is not an aggravating feature. However, the location is an aggravating feature of this offending. It was a public place where a person 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 by Mr Mailo were of concern.
[32] In his affidavit for sentencing in the District Court, Mr Mailo provides further context to this offending. His evidence indicates the offending was more serious than conveyed in the summary of facts. I acknowledge, before reviewing his evidence, that the candid nature of his explanation reflects well on his expressions of remorse and his 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 of the offending in Mangere because a common friend of theirs had been recently shot and killed there in a gang shooting. Mr Mailo says he had been drinking. He initially remained in the car, his brother’s car, when they arrived. As he left the car, he noticed one of his son’s plastic toy guns and picked it up. He says a red bandana was hanging
out of one of his pockets. This is an item associated with a particular South Auckland gang. 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 the following: he went to the site of a gang shooting where a man was killed; he was carrying a coloured item of clothing which was associated with a gang; and, he called out a word used by members of that gang while holding the toy gun aloft. While there is no evidence to contradict Mr Mailo’s evidence that he is not a member of a gang the three aspects of his conduct I have referred to are all aggravating features of the offending. To residents surrounding the site, where a gang related shooting causing death had recently occurred, Mr Mailo’s outward appearance and actions, together with his possession of a firearm (albeit an imitation), would have been deeply distressing and troubling, signalling a significant escalation in tensions and the possibility of another imminent shooting in their community. As against that, no one could in fact have been shot, because the firearm was an imitation one.
[35] I have already acknowledged Mr Mailo’s forthright and comprehensive explanation of this offending in his evidence. I consider this a mitigating factor in that he takes full responsibility for his actions and that goes to the genuineness of his remorse. He also pleaded guilty at the earliest possible opportunity. Taking account of the nature of the offending and these mitigating features, I consider the gravity of the offending on this occasion was moderate.
Direct and indirect consequences of conviction
[36] As noted, Mr Mailo advances two direct and indirect consequences of conviction. 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 to travel overseas, he has travelled to Australia in the past to visit family and anticipates doing so in the future. In particular, he expects to take his young sons to Australia for this reason. Limits on Mr Mailo’s capacity to travel will, Mr Mohammed says, affect them too.
[38] The principal issue to address is whether convictions for these offences will further restrict Mr Mailo’s travel to Australia. Mr Mijatov observes that Mr Mailo already has convictions for driving related offences from 2014 and 2015. These would have to be declared by Mr Mailo before travelling to Australia. He has in fact travelled to Australia since those convictions. Mr Mijatov submits that, given these existing convictions, difficulties travelling to Australia may be only a matter of degree. This submission, however, appears predicated on an assumption that Australian border control authorities would give similar weight to somewhat minor driving offences as they would to domestic violence and firearms offences. That seems unlikely.
[39] Mr Mohammed’s submissions contain several extracts from relevant instruments which govern travellers to Australia. A ministerial statement outlining the purpose of one of these instruments says that it is to “… stop the entry to Australia of people convicted of violence crimes against women and children”. However, the terms of the provisions, as provided by Mr Mohammed specify “criminal offending or other serious conduct” and a character test has regard to “the person’s past and present criminal conduct” and “the person’s past and present general conduct”. This would suggest that Mr Mailo’s conduct would have to be disclosed by him whether or not he had been convicted.
[40] Mr Mohammed’s further submission regarding the statutory provision containing the exception to the character test for “Pardons etc” does not establish that discharges without conviction would come within the scope of “quashed or otherwise nullified”. The Court is not in a position to interpret foreign law without the assistance of expert evidence. In the absence of evidence on this point, Mr Mohammed’s submissions provide little assistance. The most helpful point which can be taken from these submissions is that Mr Mailo’s capacity to travel to Australia would not be prevented by conviction but would likely be more difficult.
[41] Which brings me to the submissions on the shame and stigma of conviction for Mr Mailo and the consequences for his standing in his Samoan community. Mr Mohammed accepts that shame and stigma are a consequence of any criminal conviction. 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. And it is so in this case.
[42] Mr Mijatov observes that, on Mr Mailo’s own evidence, stigma attaches to the offending (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 submits that 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 the consequences will be on his status as a matai, and the position of his family in his community, not whether he can become a matai, which Mr Mailo says is still possible with these convictions.
[43] I return to Mr Mijatov’s first submission which is that Mr Mailo’s evidence describes consequences which flow from the offending not conviction. Convictions record the fact of offending; as I read Mr Mailo’s evidence, the stigma he carries comes not from conviction but from his offending. To adapt his language, if he does not have clean hands, if he is not pure, if he cannot move on, it is, I apprehend, in consequence of his offending rather than any convictions. Mr Mailo records his efforts to address his offending in terms of his Samoan traditions and his place in his community. I commend those efforts, directed as they are to restoring balance in his relationships with the victim, his family and his community. I want to be absolutely clear that Mr Mailo has done the right thing in pursuing fa’amagalo. However, a discharge without conviction does not change the past; Mr Mailo carries the consequences of his actions whether or not he is convicted.
[44] I am satisfied that there will be some impact on Mr Mailo’s standing in his Samoan community if he is convicted. For him, he will not have completed the final step in achieving fa’amagalo, which he says would be a discharge. However, the matters identified in his evidence arise from his offending rather than conviction. He refers to the fact that in Samoan culture women are loved and respected. People do not put their hands on women. People who do this are wrong and they are not practising Samoan culture. He poses a question – how would he like it if somebody else 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 to tautua which he says is about service and which stems from love, responsibility, caring and dignity. Taking into account those matters, consequences for his standing, and his family’s standing in their Samoan community flow, in my view, largely as a consequence of his offending.
Proportionality
[45] Having considered the gravity of the offending and the consequences of convictions 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 in seriousness and that the Arms Act offence was moderate. Travel to Australia may be more difficult with convictions but it does not appear Mr Mailo will be unable to travel to Australia. Mr Mohammed’s submission that the combination of domestic violence and firearms convictions will raise serious difficulties is acknowledged but the firearms offence is by definition one involving an imitation firearm rather than an actual firearm. For this reason, Thompson v Police, involving the discharge of a paintball gun resulting in a charge under s 48 of the Arms Act, can be distinguished.12 The circumstances of this offending are a matter which can be explained to border control 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 violence offending was similar to this case and the gravity was assessed as low to moderate.13 The appellant needed to travel to Australia and the United States to obtain stock for his businesses. Evidence from a solicitor and registered migration agent was that he would likely be refused a character waiver in the absence of any “domestic connections” to Australia.14 Woolford J observed that “the need for a character waiver is not an absolute bar” to the appellant’s ability to travel to Australia on business but he had evidence from the solicitor to establish that travel to Australia would be
12 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. Such evidence 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 be determined by the relevant authorities”.16
[48] In ED v R, the particular circumstances of the appellant’s employment, and the expectation that she could travel to Australia at short notice to undertake her employment duties, in the context of offending which was lower in gravity than Mr Mailo’s offending, led to the conclusion that conviction was out of all proportion to the gravity of the offending.17 As in Shi, above, there was evidence regarding the process 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 would make regular trans-Tasman travel as part of the appellant’s employment difficult if not impossible.19
[49] While I acknowledge that travel to maintain family connections is important and also that family matters can in some instances require urgent travel, Mr Mailo simply advances a generalised wish to travel to see family members and without any supporting evidence of what the restrictions might be.
[50] Finally, there is Northover v Police. In that case, Brewer J assessed the offending to be at a low level of seriousness.20 And it was established the consequences of conviction were serious for the appellant. His employer required annual Police checks for criminal convictions; several organisations he undertook voluntary work for were “sensitive to criminal convictions”. There was also an identified risk to future employment as a result of the particular conviction for the particular violence offences he had committed. There is no evidence before me that these factors apply to Mr Mailo and, as I have noted, consequences for his employment are 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 of conviction 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 in Northover was able to establish that conviction was detrimental to his mana. This affected his standing in his community (earned over decades of effort), his voluntary work and his relationship with his whānau. Brewer J accepted, on the evidence before him, 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 flow from the offending rather than conviction. Any consequences arising from conviction are limited and are not out of all proportion to the gravity of the offending as assessed above.
[52] For all these reasons, the Judge correctly declined the application for discharge without conviction.
Result
[53]The appeal is dismissed.
Gordon J
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