Nikua v The Queen

[2016] NZHC 2202

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2016-404-000134 [2016] NZHC 2202

IN THE MATTER OF	an appeal against sentence
BETWEEN	PETIOLA NIKUA Appellant
AND	THE QUEEN Respondent

Hearing:	12 September 2016
Counsel:	M B Mortimer for the Appellant Y V Yelavich for the Respondent
Judgment:	16 September 2016

JUDGMENT OF EDWARDS J

This judgment was delivered by Justice Edwards on 16 September 2016 at 3.00 pm, pursuant to

r 11.5 of the High Court Rules

Registrar/Deputy Registrar
Date:

Counsel:     M B Mortimer, Auckland

Solicitors:    Kayes Fletcher Walker Limited, Auckland

NIKUA v R [2016] NZHC 2202 [16 September 2016]

Introduction

[1]      Ms Nikua pleaded guilty to one charge of kidnapping1  and one charge of being party to an assault.2   She was sentenced on 8 April 2016 in the District Court to two years and nine months’ imprisonment.3   She appeals that sentence on the basis that it is manifestly excessive.

The offending

[2]      Ms Nikua is a 47 year old mother of eight children.   She also has four grandchildren.   Ms Nikua and her three eldest daughters were involved in the kidnapping and assault of the 17 year old victim.  The victim lived with Ms Nikua and her family while working as a prostitute in Manukau between June and August

2014.  She would pay her earnings from prostitution to Ms Nikua.

[3]      In August 2014, the victim decided to stop working as a prostitute.  She left Ms Nikua’s family and went to live with her own family.   Ms Nikua wanted the victim to return to prostituting and sent her three eldest daughters to bring the victim back to their house.

[4]      On arrival at the victim’s address, one of the daughters remained in  the vehicle, while the other two went to the house.  They threatened the victim telling her that if she did not open the door they would force their way in.  Once inside they told her she had to come with them.   The victim refused.   Ms Nikua sent a text message to one of her daughters so that she could show it to the victim.  The text message read:

JUMP N DA CR OR I WL HVE SUM PEEPZ KUM OWT NZ FUCK USE AL UHP.

[5]      Whilst at the victim’s house, one of the daughters stole a Playstation 3 and a hair straightener, and was instructed by Ms Nikua via text to bring those back to the house as well.  The victim, fearing for her safety, went to the car and was returned to

Ms Nikua’s home.  Once there, she was placed in a shed at the back of the house.

1      Crimes Act 1961, s 209.

2      Crimes Act 1961, s 196.

3      R v Nikua [2016] NZDC 5948.

Ms Nikua told the daughters to assault the victim, but not to punch her in the face as she needed to work that evening.  Two of the daughters subsequently punched the victim in her upper body and the back of her head multiple times.

[6]      The victim was kept in the shed until the evening.  At around 8.00 pm she was driven to Auckland city and made to prostitute herself.  The victim’s first client was someone she knew and she managed to escape with him and report the matter to the police.

Pre-sentence reports and references

[7]      Two pre-sentence reports were prepared for sentencing.

[8]      The  first  report  of  26  January  2016  notes  the  discrepancy  between Ms Nikua’s description of events and the victim’s version.   The report also notes Ms Nikua’s admission to an “unhinged” lifestyle plagued by regular drinking and cannabis use at the time of the offending.

[9]      The report records that there were four adults (Ms Nikua and her three adult daughters) and eight children living at the family home, and Ms Nikua was the cornerstone of the family.   Since the offending in 2014, Ms Nikua had become immersed with the church and her children.   Ms Nikua is recorded as taking full responsibility for her offending and expressing regret for the events of that day.  The report writer considered Ms Nikua’s likelihood of reoffending and risk of harm to others were low and recommended a sentence of community detention or intensive supervision.

[10]     The sentencing was originally scheduled for March 2016.   However, the Judge adjourned the sentencing to enable a further report to be prepared.  The second report dated 4 April 2016 notes that Ms Nikua’s risk of reoffending was low given her limited previous history, but that her risk of harm to others was assessed as medium to high given her role in the offending.

[11]     The writer of the second report regarded Ms Nikua’s stated remorse and changes to her lifestyle as “questionable” given her comments about the victim during the pre-sentence report interview.  The report writer concluded that a term of imprisonment was the only suitable recommendation given the seriousness of the charges and the impact on the victim.

[12]     Ms Nikua also indicated a desire to attend a restorative justice conference, but that was not convened because the victim declined to participate.

[13]     At sentencing, the Judge had before him a letter from Ms Nikua and a letter from  the Bishop  of the  Church  of  Latter Day Saints  in Penrose.    In  her letter Ms Nikua states that she takes full responsibility for her actions and sincerely regrets what she did.   She expresses fear for the well-being of her family if she is incarcerated, and the strain that this would put on her eldest daughter (and one of the co-defendants) in looking after the children whilst also being pregnant.  She asks for mercy given the impact of the sentence on her children and grandchildren and asserts that since the incident she had stopped consuming alcohol.

[14]     The letter from the Bishop states that Ms Nikua had been active in church activities over the past year and has shown a loving and caring interaction with her children during that time.

District Court sentencing

[15]     The  District  Court  sentencing  followed  a  sentence  indication  given  on

23 November 2015.   In the sentencing indication the Judge indicated his view that Ms Nikua was the most culpable in the offending, given the planning, premeditation, her position of authority and the breach of trust associated with her role as a mother.

[16]     The Judge indicated that he would adopt a starting point of three years, four months’ imprisonment for the offending and a 15 per cent discount for the guilty plea on the basis that this had been given at a very late stage.  The end sentence indicated was two years, nine months’ imprisonment, which Ms Nikua accepted.

[17]     Ms Nikua came up for sentencing on 8 April 2016.   The Judge made the following observations:

[2]       Petiola you are the most culpable.   I indicated that at the sentence indication hearing.   The letter that you have presented me with today that you wrote is of some interest but really cannot affect the sentence that needs to be imposed and the letter that is written by your Bishop in support of you does not seem to indicate at all any knowledge of the facts of the matter.  I am afraid those two matters cannot impact on my sentence for you.

[18]     He  sentenced  Ms  Nikua  to  33  months’  imprisonment  (two  years,  nine months) for the kidnapping and, in respect of the assault charge, to a three month term of imprisonment to be served concurrently.

Grounds of appeal

[19]     Ms Nikua appeals her sentence on the basis that it was manifestly excessive. [20]     The primary challenge is to the Judge’s failure to provide any discount for

remorse and rehabilitation, and Ms Nikua’s personal circumstances.

[21]     Although Ms Nikua accepts that the starting point was within range, and was the  same  starting  point  adopted  in  the  sentencing  indication,  she  nevertheless submits that it was at the upper end of the range available.  A high starting point, combined  with  the lack  of deductions,  led to  a sentence which  was  manifestly excessive.

Approach to appeal

[22]     Section 250(2) of the Criminal Procedure Act 2011 provides that the Court must allow an appeal against sentence if it is satisfied that:

(a)       for  any  reason,  there  is  an  error  in  the  sentence  imposed  on conviction; and

(b)      a different sentence should be imposed.

[23]     In any other case, the Court must dismiss the appeal.4   An appeal court will not intervene unless there is a material error, and if so, the appeal court will then go on to form its own view of an appropriate sentence.5

[24]     The Court of Appeal has also held that despite s 250 making no express reference to “manifestly excessive”, this principle is “well-engrained” in the Court’s approach to sentence appeals.6   Whether a sentence is manifestly excessive is to be examined in terms of the end sentence given, rather than the process by which the sentence is reached.7

Analysis

Starting point

[25]     I do not consider the starting point was at the higher end of the range for this type of offending.  As Ms Yelavich submitted, the offending involved a number of aggravating features including actual and threatened violence, taking the victim from her home, planning and  premeditation, and an  abuse of a position of authority. Furthermore, the offending was financially motivated as the victim was kidnapped and ordered to return to work as a prostitute so that her earnings could be taken by Ms Nikua. As the Judge observed, the nature of the offending was very serious.

[26]     In R v Piper, a father and son both faced kidnapping charges.8    The father was held to be the more culpable of the two, and a three year starting point was adopted for him.  I consider the offending in that case was less serious than in the present case because there was no actual violence and the victim was detained for two hours as opposed to the eight hours that the victim was held in this case.

[27]     A three year starting point was also adopted by Brewer J in Budd v R, and upheld on appeal.9   The appellant in that case, Ms Budd, was one of a number of co-

accused involved in a kidnapping.   The victim had been taken in Auckland and

4      Criminal Procedure Act 2011, s 250(3).

5      Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [30].

6      At [33] and [35].

7      Ripia v R [2011] NZCA 101 at [15].

8      R v Piper [2012] NZCA 104.

9      R v McGee [2014] NZHC 849; and Budd v R [2014] NZCA 333.

driven to a house in Hamilton.  She was taken to a shed at the rear of the property and her arms, legs and neck were tied up with a rope.  A demand was made for a ransom of $30,000 for her release.  She was detained for a period of over nine hours before she managed to escape, scale a fence and call the police from a nearby property.   She suffered bruising and abrasions to her neck, wrists and ankles as a result of being tied up.

[28]     Ms Budd was not involved in the planning process and was not involved in the kidnapping at the outset.   However, she was present on the property for approximately four and a half hours during which time she was involved in making demands for money from the victim, and at one point playing with a knife in the shed.   The Court of Appeal held that the starting point of three  years was not excessive in all the circumstances.

[29]     A starting point of two and a half years’ imprisonment was adopted for one of the co-defendants in that case (Mr Kaka).   His involvement did not include the original abduction, and appears to have been limited to checking periodically on the victim.  The Court of Appeal rejected the submission that the starting point adopted in respect of Mr Kaka was too high, and considered a higher starting point was clearly justified for Ms Budd, as Mr Kaka was only 19 years old at the relevant time and Ms Budd, who was aged 37, was more culpable.

[30]     Starting points of five and a half years’ imprisonment were adopted for the main offenders involved in the abduction.10    Aggravating features leading to that starting  point  included  the  vulnerability  of  the  victim;  detention  by  multiple offenders; the fact that she was blindfolded and bound; threats, including those made with a knife to her throat; the length of her detention (some nine hours); and the premeditation involved.11

[31]     Given  the  aggravating  features  discussed  above  and  the  starting  points adopted in these cases, I do not consider the starting point to be at the upper end of the range.  It was well within the range available to the Judge given the seriousness

of the offending.

10     R v Martin [2013] NZHC 2675; and R v McGee, above n 9.

11     R v Martin, above n 10, at [9].

Remorse and rehabilitation

[32]     Evidence of an offender’s remorse, or an endeavour to make amends to the victim, can be taken into account as a mitigating factor at sentence.12   However, the question is whether a proper and robust evaluation of all the circumstances demonstrates genuine remorse on the part of an offender.13   The Court will look for “hard evidence of genuine regret and remorse”.14

[33]     Similarly,  efforts  at  rehabilitation  can  warrant  further  discount  from  the starting point.15

[34]     The  Judge  was  clearly  unmoved  by  the  letters  offered  in  support  of Ms Nikua.  I consider he was entitled to regard the expressions of remorse and regret with some scepticism, as the first pre-sentencing report suggested that Ms Nikua still maintained a version of events which was substantially less serious than that set out in the summary of facts.

[35]     Nevertheless, there was evidence both in the pre-sentencing reports, and the letters offered in support of Ms Nikua, that she had made some effort to turn her life around, by giving up alcohol, and becoming involved with the Church.

[36]     I consider such efforts warranted a discount, albeit a modest one given her apparent reluctance at the outset to accept responsibility for her conduct.   In the circumstances a discount of five per cent (two months) would have been appropriate in my view.

Personal circumstances

[37]     The  personal  circumstances  of  the  offender,  and  the  hardship  caused  to family may also provide further grounds for a discount from sentence in particular

12     Sentencing Act 2002, s 9(2)(f).

13     Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607 at [64].

14     R v Brewster [1998] 1 Cr App R 220 (CA) as adopted in Senior v Police (2000) 18 CRNZ 340 (HC) at [21].

15     See for example Mallett v R [2014] NZCA 39 where a discount was given where there was

evidence of the appellant making “significant and positive changes”.

cases.16    The Judge could have taken into account the difficulties posed by such a large family living in overcrowded circumstances, and the burden placed on the children in particular as a result of Ms Nikua being imprisoned.

[38]     However, given the offending involved a breach of trust by the appellant in her role as a mother to her own daughters, and as a mother figure to the victim, it was entirely open to the Judge to decide not to grant any further discount for this factor.

Overall

[39]     Adopting the starting point of 40 months, allowing a five per cent discount for remorse and rehabilitation, and applying the 15 per cent discount for the guilty plea, results in a sentence of just over 32 months, or two years and eight months.

[40]     A one  month  difference  to  the  end  sentence  of  two  years,  nine  months imposed by the District Court Judge means that any interference would amount to mere tinkering with the sentence.

[41]     I am not persuaded that the end sentence was manifestly excessive or that there was any other material error in the end sentence imposed.

Result

[42]     Appeal dismissed.

Edwards J

16     See the discussion in Skelton v R [2011] NZCA 35 at [40]. Courts have recognised, however, that criminal offending will inevitably result in hardship to the defendant’s children and something outside of the usual range will be required to justify a discrete discount for this factor.