Maraki v Police - [2022] NZHC 1562

IN THE HIGH COURT OF NEW ZEALAND GISBORNE REGISTRY

I TE KŌTI MATUA O AOTEAROA TŪRANGANUI-A-KIWA ROHE

CRI-2021-416-12

[2022] NZHC 1562

BETWEEN
MATENE MARAKI

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 30 June 2022

Appearances:

N H Wright for the Appellant

M J M Mitchell for the Respondent

Judgment:

1 July 2022

JUDGMENT OF PALMER J

Solicitors
N Wright, Barrister, Gisborne
Copeland Ashcroft Law, Hastings

MARAKI v NEW ZEALAND POLICE [2022] NZHC 1562 [1 July 2022]

What happened?

[1] Between mid-December 2020 and mid-February 2021, Mr Matene Maraki committed several offences:

(a)receiving a stolen motorcycle, a stolen wood elevator and a stolen compressor;

(b)stealing a jersey and three cash boxes valued at $360;

(c)stealing several sheets of corrugated iron on three occasions;

(d)attempting to steal a generator until he was asked by a complainant to put it back, which he did;

(e)stealing a coffee cart and then items from inside the cart;

(f)stealing a truck worth $3,000 and a mobile diesel fuel trailer until he was challenged and left the truck and trailer (and his dog) behind.

[2] Police found some of the stolen property and other stolen property as well as live ammunition and 18 growing cannabis plants at Mr Maraki’s home address and in his vehicles. In May 2021, Mr Maraki failed to answer bail.

[3] On 2 September 2021, Mr Maraki accepted a sentence indication of “imprisonment” by Judge W P Cathcart in the District Court at Gisborne. On 23 November 2021, the Judge sentenced Mr Maraki to three years and six months’ imprisonment for: eight charges of burglary; three charges of receiving; one charge of cultivation of cannabis; two charges of unlawful possession of ammunition; and failure to answer bail.1 The Judge constructed the sentence by:

1 R v Maraki [2021] NZDC 23113.

(a)setting a starting point of four years and two months’ imprisonment for the burglary of commercial premises to a total value of $23,360, with a small degree of targeting and planning over a three-month period;2

(b)indicating the remaining offending warranted an uplifted of 19 months but he adjusted that to 10 months to ensure the global starting point of five years’ imprisonment was not excessive;3

(c)uplifting the sentence by two months for Mr Maraki’s previous convictions for similar offences;4

(d)discounting the sentence by 15 months, or 25 per cent, for the early guilty plea;5 and

(e)discounting the sentence by five months for a genuine expression of remorse and personal circumstances and because the Judge was looking for principled ways to reduce the length of the sentence.6

[4] Mr Maraki is currently serving his sentence and is eligible for parole. If his end sentence is reduced to two years’ imprisonment or less, he would be subject to immediate release. Mr Maraki appeals the sentence as manifestly excessive. On 22 February 2022, Cooke J granted leave to adduce fresh evidence on appeal in the form of a report produced for the purposes of s 27 of the Sentencing Act 2002.

Submissions

[5] Mrs Wright, for…

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 Maraki v Police

Details

AGLC: Maraki v Police [2022] NZHC 1562
Case: [2022] NZHC 1562
Decision Date: 1 July 2022

CaseChat Overview and Summary

The appeal in Maraki v Police involves a challenge by the appellant, Matene Maraki, against his sentence of three years and six months’ imprisonment imposed by the District Court. The sentence was for multiple charges including burglary, receiving stolen property, cultivation of cannabis, unlawful possession of ammunition, and failure to answer bail. The appellant argued that the sentence was manifestly excessive, and the High Court was required to determine whether the sentence imposed was within the available range and whether a material error had been made in the sentencing process.

The court considered several legal issues, including whether the starting point for the sentence was appropriately determined, whether the aggravating factors were correctly identified and weighed, and whether adequate discounts were applied for personal circumstances and the appellant's early guilty plea. The appellant's counsel argued that the starting point for the burglary charges was too high, and that the judge had erred in comparing the offending to cases with more serious aggravating factors. The respondent, represented by counsel, maintained that the starting point and the overall sentence were within the acceptable range and appropriately reflected the seriousness of the offending.

In its judgment, the High Court found that the starting point for the burglary charges was indeed too high due to an error in referencing a previous case. The court also found that additional discounts were warranted based on the appellant's personal circumstances and cultural background as detailed in a report produced under section 27 of the Sentencing Act 2002. The court substituted the original sentence with a sentence of two years and seven months' imprisonment, taking into account the appropriate starting point, uplifts, and discounts. The interests of the appellant's children, while a mandatory consideration, were not sufficiently evidenced to warrant further adjustment to the sentence.

Ultimately, the appeal was upheld, the original sentence was quashed, and a new sentence of two years and seven months' imprisonment was imposed. The cancellation of fines was maintained.

Orders