Maraki v Police
[2022] NZHC 1562
•1 July 2022
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 Mr Maraki, submits that the starting point used by the Judge was too high because he erred in identifying the bottom end of the sentence in the case of Bell v R which he considered was four years’ imprisonment but was in fact three years and six months’ imprisonment..7 She submits the Judge erred in comparing
2 At [25] and [32].
3 At [37].
4 At [39].
5 At [40].
6 At [48].
7 Bell v R [2014] NZHC 3105 at [18] and fn 16.
Mr Maraki’s offending to that in Sullivan v R where the offending was significantly more serious.8 Ms Wright submits that the Judge ought to have given more weight to the decision in Solomon v Police.9 She submits the unsophisticated burglary of business premises during the day here did not carry the aggravating factors in the other cases. She submits a starting point of two years and six months’ imprisonment would have been sufficient. Mrs Wright also submits additional discounts are justified for Mr Maraki’s background and cultural factors in the s 27 report, reflecting his disconnection with his culture and normalisation of gang life which substituted for his cultural heritage, to which he has now reconnected. She notes that discounts of up to 30 per cent have been allowed to account for these kinds of factors.10
[6] Ms Mitchell, for the Police, submits that the starting point was in the acceptable range and the Judge was entitled to take the view he took of the comparator cases, including Bell where the value of the stolen property was five times less than the value of that here. She submits the uplift was generous and an uplift of 12 to 15 months could have been justified. 11 Ms Mitchell also submits that the Judge gave appropriate discounts to reflect Mr Maraki’s personal circumstances as reported in the pre-sentence report, which contained much of the information in the s 27 report. She submits the s 27 report describes a reasonably stable family background with no particularly material deprivation and does not support a connection between Mr Maraki’s background and his offending.
Should the sentence appeal be allowed?
[7] Under s 250 of the Criminal Procedure Act 2011, I must allow the appeal if satisfied there is a material error in the sentence and a different sentence should be imposed. The focus is on whether the end sentence is within the available range.12\
[8] In Arahanga v R, the Court of Appeal stated that it had deliberately not set a tariff for burglary sentences because the range of circumstances in which the offence
8 Sullivan v R [2016] NZCA 100.
9 Solomon v Police [2020] NZHC 1674.
10 Solicitor-General v Heta [2018] NZHC 2453.
11 Citing Murphy v Police [2018] NZHC 251; Andrews v Police [2015] NZHC 2496; and Ali v Police
[2017] NZHC 2869.
12 Ripia v R [2011] NZCA 101 at [15].
can be committed is so varied.13 It identified that burglary of a domestic residence is a significant aggravating factor, due to the heightened risk of confrontation with occupants, and would attract a starting point in the range of 18 months’ to two and a half years’ imprisonment at the relatively minor end of the scale.14 Actual violence is a highly significant aggravating feature.15 Other aggravating factors are: more than one burglary; burglary in the early hours of the morning; offending while victims are asleep; multiple burglars, which heightens the risk of violence; unlawful taking of a motor vehicle; and taking of high value items.16 In Gorgus v R, the Court of Appeal confirmed that, to the extent High Court decisions might differ from the approach approved in Arahanga, they should not be followed.17 Prior to both decisions, in R v Nguyen, the Court of Appeal said relevant factors include:18
… the degree of planning and sophistication in the offending, the nature of the premises entered, the kind and value of property stolen, damage done, the impact and potential impact upon occupants or owners of property, and the extent of the offending where multiple burglaries are involved.
[9] None of the factors identified in Arahanga as aggravating are present here. Mr Maraki burgled commercial premises, by himself, during the day as far as I can tell, and backed off when challenged. He did take a motor vehicle and targeted one of the premises three times. And the Judge fairly considered the small degree of planning and $23,360 of stolen goods as significant.
[10]The Judge and counsel relied on Bell and Sullivan. I consider:
(a)The offending here is comparable with, but perhaps marginally less serious than Mr Bell’s 10 burglary offences, including a motor car, which attracted a starting point of three and half years. Mrs Wright is correct that the Judge erred in thinking it was four years. The value of the goods stolen, $4,461, was significantly less than that here. But those burglaries involved two burglars, targeting industrial and rural properties at night and Mr Bell violently resisted arrest. Solomon v
13 Arahanga v R [2012] NZCA 480, [2013] 1 NZLR 189 at [78].
14 At [78].
15 At [81].
16 At [79].
17 Gorgus v R [2016] NZCA 508 at [11].
18 R v Nguyen CA110/01, 2 July 2001 at [17].
Police also involved a starting point of three and a half years, for 15 burglaries.
(b)The offending here is appreciably less serious than that in Sullivan. Mr Sullivan committed seven burglaries of commercial premises, including stealing a vehicle and firearms and stealing certain goods to order. He inflicted wanton damage during the Christchurch rebuild and the value of the goods stolen was $240,000. The starting point was six years.
[11] I accept Mrs Wright’s submission that the Judge’s error in identifying the starting point for burglary in Bell meant the starting point here was too high. I consider a starting point of three years and six months would have been justified.
[12] I also accept Mrs Wright’s submission that the additional information about Mr Maraki’s background suggests he bears reduced culpability for his offending. While the impact of his cultural alienation on joining a gang was canvassed to some degree in the pre-sentence report, the s 27 report justifies a somewhat greater discount of an additional ten per cent. The five months granted by the Judge would have been justified by genuine remorse alone. I consider the uplifts for previous convictions were justified.
[13] I also enquired of counsel whether the impact of Mr Maraki’s sentencing on his three teenage children is relevant. The interests of children are a mandatory relevant consideration under s 8(1) of the Act.19 But there is no evidence of that impact here.
[14] So that yields: a starting point for the burglaries of three years and six months’ imprisonment, with an uplift of 10 months for the remaining offending, resulting in a global starting point of four years and four months’ imprisonment. I uplift that by the two months for previous convictions and apply the discounts of 25 per cent for the
19 See United Nations Convention on the Rights of the Child 1577 UNTS 3 (opened for signature 20 November 1989, entered into force 2 September 1990) arts 2 and 3(1).
guilty plea, 10 per cent for personal circumstances; and the five months for remorse. The net result is an end sentence of two years and seven months’ imprisonment.
Result
[15] I uphold the appeal, quash the sentence of imprisonment imposed by the District Court and substitute a sentence of two years and seven months’ imprisonment. I maintain the cancellation of fines.
Palmer J
0
10
0