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Nikora v Police

Nikora v Police

Case [2020] NZHC 2013 10 August 2020

Unconscionable Conduct

Criminal Law

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IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2020-404-205

[2020] NZHC 2013

BETWEEN
VANESSA PAMELA NIKORA

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 10 August 2020

Appearances:

G P Timms for the appellant D B Dow for the respondent

Judgment:

10 August 2020

ORAL JUDGMENT OF JAGOSE J

Counsel/Solicitors:
G P Timms, Barrister, Auckland
Meredith Connell, Crown Solicitor, Auckland

NIKORA v NEW ZEALAND POLICE [2020] NZHC 2013 [10 August 2020]

[1] Vanessa Pamela Nikora appeals against her 24 months’ imprisonment sentence on her guilty pleas to various theft and dishonesty-related charges, imposed by Judge PJB Winter in the District Court at Auckland on 26 May 2020.1 These include two charges of theft (under $500),2 one charge of theft ($500–$1,000),3 five charges of using a document for pecuniary advantage,4 and one charge of burglary (under $500).5 The last is the lead offending.

Background

[2] The charges on which Ms Nikora was convicted and sentenced arose from offending in March, July and September 2019, notably using victims’ bank and credit cards to obtain cash, goods, and services for herself, in sum exceeding $7,600. The cards were obtained from a stolen wallet, and from a residential mail box. Ms Nikora also stole from a hotel’s reception desk an envelope containing two Australian passports, and from a department store a handbag and wallet. Together with another person, she forced entry into an apartment building’s mail room and broke into several mail boxes to take items of indeterminate value from them before fleeing. The last is the burglary charge.

Judgment under appeal

[3] The Judge noted Ms Nikora had been in custody for some eight months, with an intermediate release on electronically-monitored bail to a drug rehabilitation facility, but from which she absconded, to be returned to custody. At the time of sentencing, she was subject to intensive supervision due to expire on 24 August 2020, with which her compliance had been poor.6

[4] With reference to the Court of Appeal’s observation a starting point of 18 to 30 months’ imprisonment was usual for residential burglaries,7 although Ms Nikora’s

1      Police v Nikora [2020] NZDC 9376 [Sentencing decision].
2      Crimes Act 1961, ss 219 and 223(d). Maximum penalty: three months’ imprisonment.
3      Sections 219 and 223(c). Maximum penalty: one year’s imprisonment.
4      Section 228. Maximum penalty: seven years’ imprisonment.
5      Section 231. Maximum penalty: 10 years’ imprisonment.
6      Sentencing decision, above n 1, at [10]–[11].
7      Arahanga v R [2012] NZCA 480, [2013] 1 NZLR 189.

offending was “not so serious as to place it in [that] usual range”,8 the Judge nonetheless took an 18-month starting point, uplifted it by six months for the “dishonesty charges”, and by a further nine months for “the other offending and for [Ms Nikora’s] extensive previous convictions”, bringing the initial sentence to 33 months’ imprisonment. While noting her single prior burglary conviction, the Judge also noted her 153 prior convictions, 90 for dishonesty offences, 67 for taking…

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 Nikora v Police

Details

AGLC: Nikora v Police [2020] NZHC 2013
Case: [2020] NZHC 2013
Decision Date: 10 August 2020

CaseChat Overview and Summary

The appeal in Nikora v Police involves the appellant, Vanessa Pamela Nikora, challenging the sentence imposed by the District Court at Auckland. Nikora was sentenced to 24 months' imprisonment on various theft and dishonesty-related charges. The respondent is the New Zealand Police. The appeal was heard in the High Court of New Zealand at Auckland on August 10, 2020. The primary legal issue was whether the starting point for sentencing was appropriately determined by the District Court and whether the mitigating factors, such as Nikora's drug addiction and genuine remorse, were adequately considered. The court needed to decide if the sentence was "manifestly excessive" and whether it could be justified by accepted sentencing principles.

The High Court found that the District Court's initial starting point, while at the higher end, was not outside the appropriate sentencing range for the circumstances of the burglary. The Court acknowledged that the offending involved premeditation, forceful entry, and damage to property, and was distinctly facilitative of Nikora's long-standing dishonesty. While the Court recognised the mitigating impact of Nikora's drug addiction and remorse, it also noted that these could have been offset by her aggravating factors, such as her offending while subject to a sentence of intensive supervision and her absconding while on electronically-monitored bail. The Court concluded that the Judge's actual discount exceeded 25 per cent, indicating an overall consideration of both aggravating and mitigating factors. The Court was not satisfied that the Judge's sentence was manifestly excessive and could be justified by orthodox sentencing principles.

The appeal was dismissed, and the original sentence of 24 months' imprisonment, later adjusted to eight months' home detention, was upheld.

Orders