Mailo v Police - [2020] NZHC 3164

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Mailo v Police

Details

AGLC: Mailo v Police [2020] NZHC 3164
Case: [2020] NZHC 3164
Decision Date: 2 December 2020

CaseChat Overview and Summary

The appeal in Mailo v Police was brought by Gershom Napoleon Mailo who was sentenced to nine months’ supervision after pleading guilty to one charge of unlawfully carrying an imitation firearm, one charge of assault on a person in a family relationship and one charge of behaving threateningly. His application for discharge without conviction was declined and he now appeals against that decision. The appeal requires the Court on appeal to make a fresh assessment in accordance with its own opinion. The legal test requires the Court to: (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. The appellant submits that the gravity of the offending is low and 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. The Judge concluded that the consequences of conviction would not be out of all proportion to the gravity of the offending in the circumstances. The court agreed and dismissed the appeal.

Orders