[3] On 30 March 2016 Ms Nikau, along with a Ms Gerard and a Ms Walker, uplifted approximately 53 pairs of tights from a table outside a Glassons clothing store. The tights were valued at $2,119.47. All subsequent offending has occurred while on bail for this matter.

[4] On 22 May 2016 police visited Ms Nikau’s house. They found at that address property taken from a private address four days previously, including two televisions, jewellery and other items, valued at $6,940. Ms Nikau, along with a
Ms Pene, was charged with receiving.

1      Crimes Act 1961, ss 246 and 247, which carries a maximum penalty of seven years imprisonment.
2      Crimes Act s 1961, s 231, which carries a maximum penalty of ten years imprisonment.
3      Crimes Act 1961, ss 219 and 223(d), which carries a maximum penalty of three months imprisonment.
4      Crimes Act 1961, ss 219 and 223(b), which carries a maximum penalty of seven years imprisonment.
5      Sentencing Act 202, s 71(1)(a), which carries a maximum penalty of three months imprisonment.
6      R v Nikau [2017] NZDC 7798.

[5] On 16 May 2016 Ms Nikau, along with Ms Gerard, took three sets of sheets from Bed, Bath & Beyond worth $359.70.

[6] On 26 December 2016, Ms Nikau entered Farmers at The Base Shopping Centre with her baby. She had been served a trespass notice on behalf of The Base Shopping Centre on 6 May 2015. Ms Nikau removed several items of baby clothing from the display racks, worth $182.94, and concealed them in her bag. She was then approached by a security guard. As a result of the trespass notice, this offending was charged as a burglary.

[7] Finally, on 4 March 2015 Ms Nikau was sentenced to community work. She failed to report as required in early 2017.

District Court judgment

[8] Judge Collin in the District Court imposed an end sentence of 18 months imprisonment.

[9] The Judge noted Ms Nikau’s significant history of offending. Further, she…

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 Nikau v R

Details

AGLC: Nikau v R [2017] NZHC 1366
Case: [2017] NZHC 1366
Decision Date: 20 June 2017

CaseChat Overview and Summary

Wikitahi Josephine Nikau appeals against her sentence, imposed by Judge Collin in the District Court, for receiving property, burglary, theft, and breach of community work. Ms Nikau was sentenced to 18 months imprisonment, which she contends was excessive. The appeal court was required to determine whether the District Court erred in imposing the sentence of imprisonment, and whether a different sentence should be imposed. The appeal court found that the District Court erred in its approach to parity. The principle of parity requires that the court should not impose two sentences which would cause a reasonably minded independent observer, aware of all the relevant circumstances, to think that something had gone wrong with the administration of justice. The principle of parity is largely relevant to the assessment of the appropriate starting point rather than a comparison of end sentences. The District Court was not required to impose the same sentence on Ms Nikau as her co-offender, Ms Pene, and should not have precluded the option of home detention. The appeal court considered the sentence imposed by the District Court and concluded that the purposes of sentencing could be satisfied by a sentence of home detention. The appeal court allowed the appeal against sentence and imposed a sentence of seven months home detention, with concurrent sentences of three months for the theft over $1000, one month for the theft under $500, three months for the burglary, and one month for the breach of community work. All sentences are to be concurrent.

Orders