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…

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 Nikua v The Queen

Details

AGLC: Nikua v The Queen [2016] NZHC 2202
Case: [2016] NZHC 2202
Decision Date: 16 September 2016

CaseChat Overview and Summary

Ms Petiola Nikua appeals against her sentence of imprisonment for kidnapping and being party to an assault. The appeal is on the basis that the sentence was manifestly excessive. The offending involved Ms Nikua and her three eldest daughters kidnapping and assaulting a 17-year-old victim who had previously worked as a prostitute for Ms Nikua. Ms Nikua had sent her daughters to bring the victim back to her house, where she was threatened, assaulted, held captive, and forced to work as a prostitute. The appeal focuses on whether the District Court judge erred by not providing any discount for remorse and rehabilitation or for Ms Nikua's personal circumstances. The High Court found that while a modest discount of five per cent for remorse and rehabilitation may have been warranted, the one-month difference between the end sentence imposed and what the High Court calculated was not enough to constitute a material error. Therefore, the appeal was dismissed and the original sentence upheld.

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