R v Te Kotia - [2024] NZHC 332

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2021-092-8669

[2024] NZHC 332

THE KING

V

NIKITALOVE TE KOTIA

Hearing: 27 Februray 2024

Counsel:

L P Radich and B T Vaili for Crown

E P Priest and P D Wilks for defendant

Sentence:

27 February 2024

SENTENCE OF JOHNSTONE J

Solicitors:
Kayes Fletcher Walker, Auckland

R v TE KOTIA [2024] NZHC 332 [27 February 2024]

[1] Nikitalove Te Kotia, I will now sentence you for the manslaughter of your daughter, Arapera Fia. You may sit down. It’s going to take me some time to let you and the other people here in Court know the reasons for the sentence I will impose.

Offending

[2] Arapera was born in September 2019, when you were 19 years old. You had been in a relationship with her father, Malcom Fia. And your relationship with Mr Fia continued for a while after Arapera’s birth. But around the early part of 2021, it went downhill. Mr Fia moved out to live with your parents, and after a short while you moved with Arapera into a home on Gibbons Road in Weymouth, South Auckland.

[3] Around mid-2021, you were in contact with Tyson Brown, whom you had met some years before. Mr Brown started spending nights with you and Arapera in the main house at Gibbons Road. In mid-August 2021, New Zealand moved into full lockdown under Level 4 of the COVID-19 Alert System. Auckland moved only to Alert Level 3 in early October 2021, and remained there for many weeks.

[4] There were tensions in the home. A neighbour heard Mr Brown screaming and swearing at Arapera, telling her to be quiet or else she would “get it”. And a young couple who were staying in the sleep-out behind the main house, Kiana Funaki and Jacob Hansen, would occasionally hear yelling and banging from within the house, Arapera crying, and Mr Brown yelling at her and telling her to “shut up”.

[5] By late October 2021, Arapera was being hurt, unnecessarily. On 26 October 2021, Ms Funaki entered the main house from the sleep-out, to find Arapera in the living area on her own. Ms Funaki noticed and took photographs of bruising to Arapera’s body in various places. Other photographs taken of Arapera during the period 25 October to 27 October 2021 appear to show other soft tissue injuries.

[6] A TikTok video taken on 30 October 2021 shows you energetically engaged with the camera recording the video, and Arapera standing passively in the background with visible facial bruising. Later on 30 October 2021, banging and yelling was heard

from inside the main house, with Mr Brown shouting “shut up, stop crying” and Arapera screaming and crying.

[7] There is a possibility that at least some of the injuries seen prior to 31 October 2021 were caused by Arapera falling from a small plastic slide on which it was her habit to play outside the house.…

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 R v Te Kotia

Details

AGLC: R v Te Kotia [2024] NZHC 332
Case: [2024] NZHC 332
Decision Date: 27 February 2024

CaseChat Overview and Summary

Nikitalove Te Kotia was sentenced for the manslaughter of her daughter, Arapera Fia. The sentencing hearing was presided over by Johnstone J. The key issue before the court was determining an appropriate sentence that reflected Te Kotia's culpability while also considering mitigating factors. The court found that Te Kotia's decision to leave Arapera alone with her partner, who had a history of violence, while she took a phone call constituted a major departure from the standard of care expected of a parent. However, the court found that her actions did not meet the threshold for cruelty, but rather amounted to gross negligence. The court selected a starting point of four years' imprisonment, but made deductions for Te Kotia's youth, guilty plea, and her experience giving evidence against her former partner. The court also considered reports on Te Kotia's personal circumstances, mental health, and potential for rehabilitation. In total, the deductions amounted to 50% of the starting point, leading to a final sentence of 12 months' home detention. The sentence was intended to meet the rehabilitative purpose of sentencing and impose the least restrictive outcome possible.

Orders