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 RespondentJudgment:
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…
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- Nikua v The Queen [2016] NZHC 2202
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- [2016] NZHC 2202
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CaseChat Overview and Summary
The key legal issues were whether the starting point adopted by the District Court judge was appropriate, and whether the judge erred by not providing any discount for remorse, rehabilitation or personal circumstances. The High Court found that the starting point was within the range for the offending and that a modest discount for remorse and rehabilitation may have been warranted but not enough to constitute a material error. The one-month difference between the end sentence imposed and what the High Court calculated meant any interference would amount to "mere tinkering with the sentence". Therefore, the appeal was dismissed and the original sentence of two years and nine months' imprisonment upheld.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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