R v Nikau [2016] NZDC 17944 (12 August 2016)

Last Updated: 19 January 2017

EDITORIAL NOTE: NAMES AND/OR DETAILS IN THIS JUDGMENT HAVE BEEN ANONYMISED.

IN THE DISTRICT COURT AT WELLINGTON

CRI-2016-096-000222 [2016] NZDC 17944

THE QUEEN

v

_{TANE NIKAU}

Hearing:	12 August 2016
Appearances:	S W P Woods for the Crown K F Preston for the Defendant
Judgment:	12 August 2016

_{NOTES OF JUDGE P A H HOBBS ON SENTENCING}

[1] Mr Nikau, you appear before me today for sentence on two charges. A

charge of assault with intent to injure and a charge of arson.

[2] The victim of the assault charge is the mother of your four children. You have been in a relationship with her for the past 15 years. On 6 December 2015 you and the victim argued. You were both intoxicated at the time.

[3] You approached the victim and placed your forehead on her forehead in an aggressive manner. You pushed down on her forehead using your forehead which caused her some pain. She punched you in the face in response. You then punched the victim repeatedly in the face and left side of her body. She was knocked to the

_{ground as a result.}

R v TANE NIKAU [2016] NZDC 15616 [12 August 2016]

[4] You then placed your hands on top of her head and smashed her head against a broken metal chair. She immediately began to bleed from the head. You then threatened her saying, “I’m going to knock you out bitch.”

[5] She said to you, “You can't.” You responded by uplifting two shoes, one was a steel-capped boot and you hit the victim repeatedly in the head and body with those shoes. She tried to protect herself with her left arm, ultimately she and the children who were present at the time left the address.

[6] The next day you called the home address and spoke to your daughter. You told your daughter to tell her mother, your partner, you were going to bash up the car and burn down the house with all of their stuff in it.

[7] You did indeed go to the house. You poured petrol in the bedroom area and lit a fire which began in the master bedroom. The fire brigade arrived and broke into the house to extinguish the fire, there was nobody home at the time which as I have said had its origins in the master bedroom.

[8] As a result of the fire the house was extensively damaged and the majority of your partner and children’s belongings destroyed. I have read a victim impact statement from Housing New Zealand in relation to the effect on them and the significant cost that was incurred in repairing the damage to the house. I have also seen photographs of the damage to the house and they do disclose the extensive damage that I have referred to.

[9] As a result of the earlier assault, the victim received a number of injuries which included multiple bruises to her head and arms, tenderness to her chest and spine and other injuries that are detailed in the Crown submissions and her victim impact statement which I have read. That victim impact statement details the physical harm caused to her and of course the emotional harm suffered by her and the financial cost to her as a result of the fire you set in the home.

[10] Dealing with the assault in isolation, the aggravating features are self-evident. It was a repeated attack to the victim’s head by punching. You then used a chair to

smash her head into that chair and you used shoes, as I have described to continue the assault. You also threatened her and she suffered injuries as I have described.

[11] There is no tariff or guideline judgment for offending of that kind. Both Mr Woods and Mr Preston have referred me to Nuku v R1 which does provide some assistance for offences that involve an intent to injure and essentially the parties are agreed as to an appropriate starting point and I agree with that starting point. I think

_{18 months is the appropriate starting point for that offending.}

[12] The arson charge has no tariff or guideline judgment because of the wide variety of circumstances in which offending such as this can occur. The Crown have referred to the fact that you set this fire out of revenge or as a result of the earlier incident. The Crown refer to the significant damage that was caused to the property and of course the Crown refers to the potential danger, although I acknowledge that nobody was in the house at the time, but there is always danger to those who are

_{charged with the responsibility of putting fires out.}

[13] Both Mr Preston and Mr Woods have referred to a number of cases that deal with arson. They are of some assistance in reaching a starting point. The Crown and Mr Preston are slightly apart in terms of starting point. Mr Preston says up to three years. Mr Woods says something more in the vicinity of four to five.

[14] I am satisfied, having considered the circumstances and the cases referred to, that a three year starting point is appropriate for the arson charge. The arson sentence and the assault with intent to injure should be cumulative because they are different in kind and circumstance which would give a sentence of four and a half years’ imprisonment on both charges.

[15] I do not believe that there is any need to adjust that downward to take account of the totality principle. I am satisfied that does reflect the overall gravity of your

_offending.

1 [2012] NZCA 584, [2013] 2 NZLR 39

[16] I have had the benefit of reading a comprehensive alcohol and drug assessment. In that report it indicates that you have been candid and open about the problems you faced in this offending. You are willing to take part in whatever rehabilitative courses are offered to you. It is apparent that you had been consuming drugs prior to this incident and you have written me a letter today acknowledging the gravity of your offending and expressing some remorse for your behaviour and a desire to lead a more productive and crime-free life in the future, not only for your benefit but for the benefit of your young children.

[17] I acknowledge all of those things. You are of course entitled to credit for your guilty pleas. Mr Preston has endeavoured to set out the chronology of those pleas in terms of the amount of credit that should be given for those pleas.

[18] I am satisfied that you can be given the maximum credit of 25 percent. I say that on the basis that it not only recognises the timing of your pleas, but also the remorse that you have indicated and the insight that now appears to be developing in you in relation to your offending.

[19] I should have said there is no uplift sought for your previous convictions which are limited and not relevant.

[20] I do not believe there is remorse of an extraordinary kind that requires any separate consideration or adjustment other than the maximum 25 percent I have referred to which reduces the overall sentence to one of three years and four months’ imprisonment.

[21] That will be dealt with on the basis that on the charge of assault with intent to injure you are sentenced to 12 months’ imprisonment.

[22] On the arson charge you are sentenced to two years and four months’ imprisonment which is cumulative on the 12 months giving, as I have said, an end sentence of three years and four months’ imprisonment.

[23] The issue of reparation has been discussed. As I have said it is in excess of

$20,000 and it seems to me that the prospects of reparation are almost non-existent and unrealistic and I do not intend to make a reparation order. There are other means for the victim to be recompensed for that damage.

P A H Hobbs

District Court Judge