R v Nikoia HC Auckland CRI-2009-057-834 [2011] NZHC 1850 (11 November 2011)

Last Updated: 17 January 2012

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

_{CRI-2009-057-834}

THE QUEEN

v

TANGI NIKOIA

Hearing: 10 November 2011

Counsel: AJ Pollett and SCM Waalkens for Crown

H Lawry and S Basnayake for Accused

Judgment: 11 November 2011

_{SENTENCING NOTES OF TOOGOOD J}

Solicitors:

AJ Pollett/ SCM Waalkens , Meredith Connell, Auckland

Howard Lawry, Auckland

R V NIKOIA HC AK CRI-2009-057-834 11 November 2011

[1] Tangi Nikoia, you appear for sentence having been found guilty by a jury on six counts of violent and sexual offending against your former domestic partner and having pleaded guilty at various times to nine other charges of kidnapping and violence against your former partner and your now nine-year-old son who is a product of that relationship.

[2] The background to your offending is that you were in a domestic relationship with the female victim between 2001 and 2003.

[3] You then served a term of three years’ imprisonment on a charge of wounding the female victim with intent to cause grievous bodily harm, an offence which was committed on 23 December 2002. You were released from that period of imprisonment in 2005 and rekindled your relationship with the female victim the following year. It appears that she was motivated to resuming the domestic relationship with you because she wished your son to live with and have a relationship with his father.

[4] It is clear, however, that the relationship fell back into the state of violence which had characterised it previously. In August 2006, in what I describe as the van incident, you developed an argument with the female victim while she was driving. In the course of it you struck her with a beer bottle. When she tried to flee, you made her return to the van by placing her in a head-lock and dragging her across the road. You pulled her hair and you struck her again with the beer bottle. She eventually escaped by jumping from the moving car. In that incident, the victim received lacerations to her head, loss of tissue, cuts and bruises. At the start of the trial in May this year, you pleaded guilty to one count of kidnapping and one count of wounding the victim with intent to cause her grievous bodily harm in respect of that incident.

[5] The second group of offences occurred between May 2006 and September 2009 which was essentially the period of the second domestic relationship. You were convicted by the jury of one representative count of sexual

violation by rape including vaginal intercourse; one representative count of unlawful sexual connection by forceful anal intercourse, and one representative count of unlawful sexual connection by forcing the complainant to perform oral sex.

[6] Although you continue to deny that you were guilty of any sexual offending against the victim, I do not doubt that the jury properly accepted the evidence of the complainant that on a frequent basis you subjected her to violent sexual assaults in the course of prolonged and serious beatings which she said would often last for many hours and sometimes for days at a time. You would beat her into submission and then have forceful sexual relations with her including vaginal and anal intercourse and oral sex to which she submitted out of fear and exhaustion.

[7] You were also convicted by the jury of wounding the female victim with intent to cause grievous bodily harm by whipping her with audio visual cords or wires, and on a count of assault with a weapon in which you attacked her with a screwdriver, holding it by the blade and beating her with the handle.

[8] The jury also convicted you of wounding the victim with intent to cause grievous bodily harm on 17 June 2006 when you hit her over the head with a chair and then attacked her with a hammer, causing a broken arm and other injuries.

[9] In September 2010 you pleaded guilty to violent offending against your son in January 2009 when he was aged only six. That offending comprised two counts of wounding him with intent to cause grievous bodily harm: the first offence included repeated whipping of your son’s body with a thick grey cord causing his skin to break; and the second occurred when you dragged him off a bed by his hair, pulling him to the floor in a swinging motion which caused his hair to pull away from his scalp. You also punched him in the stomach and rib area leading to a charge of injuring with intent to injure. You grabbed him by the hair and shook him and you hit him on the head with a metal lighter, those assaults leading to charges of assault with intent to injure.

[10] You also pleaded guilty at the start of your trial to two counts of serious assaults on your former partner arising out of the same incident in that where you beat her also with a thick cord on her arms, back, face and bottom in front of your son, resulting in a charge of wounding with intent to cause grievous bodily harm. In the preamble to that assault and the attack on your son, you also punched the victim in the face.

[11] When your son was medically examined after the start of the school term in February 2009, he was found to have at least 64 separate lesions on his body related to your attack. He was removed from the household as a result. It was at about that time that your former partner decided she needed to bring an end to the constant sexual and other violence to which she had been subjected because, as she put it, you had begun to offend violently against her son.

[12] The victim impact report prepared in respect of your female victim describes the emotional pressures which kept your victim in each of the two periods of relationship with you, notwithstanding your extreme violence towards her. The reasons appear to lie in her own background in which she suffered physical abuse and witnessed violence as a child. Her self-esteem was lowered by your dominance of her. The violent treatment you handed out to her over many years has left both physical and emotional scars resulting in her experiencing nightmares and suffering flash-backs. For her, the worst impact of your offending was losing custody of her son for 11 months as a result of your assault on him in January 2009 and her continuing loyalty to you. The report describes her recovery as requiring a long journey, including having to deal not only with physical and emotional effects, but also mental, inter-personal and spiritual healing requiring a rebuilding of her self- respect.

[13] The emotional harm report prepared in respect of your son makes it clear that he also has suffered emotionally as well as physically from your violent behaviour towards him and his mother. Your son presented to the psychologist as a child who was emotionally withdrawn but displaying disturbingly increasing bullying and aggressive tendencies towards younger children. It is clear that as well as being

physically scarred by your attacks on him, your son has suffered major disruption to his family relationships as a relatively young child; that he has lacked the safety and protection he should have expected within his home, and his ability to control his anger and regulate his emotions has suffered. Your behaviour has caused a major disruption to his relationship with his mother whom he does not now regard as someone able to protect him.

[14] You have been responsible, therefore, for not only causing serious physical trauma to your victims, but also inflicting long-term emotional scarring upon them.

[15] In determining the appropriate sentence or sentences which should be imposed for your offending I am required, first, to consider an appropriate starting point by comparing the circumstances of your offending with other cases. In making that assessment I must take into account factors which aggravate or make worse the circumstances of your offending, and I have referred to some of those already.

[16] Having determined the appropriate starting point, I am next required to consider aggravating or mitigating circumstances personal to you. In this case, that includes the fact that you have previous convictions, including the serious charge of wounding your female victim with intent to cause her grievous bodily harm for which crime you received a sentence of imprisonment. In doing so I must be careful not to punish you twice for the same offence.

[17] Third, I am required to take account of your guilty pleas and the extent to which you have shown remorse for your offending.

[18] In determining the appropriate end sentence, I take into account the overall principles and purposes for sentencing in ss 7 and 8 of the Sentencing Act 2002. The need for denunciation and deterrence assumes prominence in this case, having regard to the fact that you resumed offending violently against your former partner relatively soon after having been released from a term of imprisonment for carrying out a violent attack on her. You did not learn from that sentence that violent behaviour of the kind you have committed is wholly unacceptable. The penalty to be

imposed on you, therefore, must reflect an element of punishment which makes it clear that you must not behave in that way in the future. It is also necessary to make it clear to others that this kind of behaviour is not acceptable in our society.

[19] I am also required to consider the gravity and seriousness of the offending and the fact that it is completely inexcusable. You ceased to attack your partner violently when you were in prison or living apart from her, and your offending combines not only serious physical assaults, including with weapons such as a hammer, but also degrading and painful sexual attacks carried out without mercy or regard for your victim as other than an object.

[20] I have already referred to the effect of your offending on your victims and I am obliged to take that into account as a factor which places your offending at the more serious end of the scale.

[21] Mr Lawry quite properly does not dispute that there is no alternative in this case to a lengthy term of imprisonment.

[22] I am, therefore, obliged to consider the guidelines set by the Court of Appeal for the appropriate assessment of a starting point taking into account, first, those features which make your offending more serious.

[23] The female victim of your offending was in a highly vulnerable position, trapped in a relationship with you because of the births of the two children, one of whom sadly died in a cot death, aged only five months, in 2007.

[24] You exploited the fact that your partner could not easily escape; you knew her well enough to know that notwithstanding the appalling way in which you treated her she would find it difficult to leave. You also knew that she was suffering a mental illness and had a considerable degree of emotional dependence on you.

[25] The violence you inflicted on her was extreme and involved periods during which you kept her trapped. She described in evidence how during the prolonged bouts of physical and sexual violence you would not let her sleep, and you would punish her whenever she appeared to be sleeping. The victim gave evidence of being detained by you for days at a time.

[26] I have already referred to the fact that your offending occurred over a lengthy period and on many occasions and involved degrading and humiliating sexual attacks. These features place your offences among the most serious of their kind.

[27] The use of weapons including bottles, a chair, a hammer, a screwdriver and a thick cord against your female victim, and the use of a weapon against your son, also render your offending more serious. In the case of the serious assaults against your son, you abused the trust which a child naturally places in a parent. The extent of his defencelessness and your dominance over him is underscored by the fact that, at the end of the prolonged beating you gave him, you made him apologise to you for his behaviour.

[28] By the assaults on him, and by what he watched you doing to his mother, you inflicted long-term harm on this child, who has had the worst possible start to his life.

[29] I deal with the offending against the female complainant and your son separately in determining starting points, but I accept Mr Lawry’s submission that the offending in respect of your son is so closely related to that in respect of your partner in January 2009 that it would not be appropriate to impose cumulative sentences. The better course is to stand back and consider the totality of the offending on the basis that, having reached an appropriate starting point on the lead sexual offending, an uplift for the other violence and the violence against your son is appropriate, before taking account of your guilty pleas and personal factors.

[30] The lead offences in respect of your female victim are the three representative charges of sexual violation by rape and other unlawful sexual connection. This

offending of repeated rapes and other violent sexual connection over a period of years places you towards the bottom of rape band 4 as described by the Court of Appeal in R v AM,[1] bearing in mind the prolonged period of offending and the degree of violence involved, but also taking into account that your victim was not a child or young person.

[31] The evidence did not satisfy me to the appropriate standard that weapons were used in connection with the sexual offending, so I do not refer to that as an aggravating factor. However, I consider that the degree of violence associated with the sexual offending determines an appropriate starting point of 16 years’ imprisonment, before considering whether any uplift is appropriate on account of the totality principle which would require all of your offending to be taken into account in determining the end sentence.

[32] In relation to the charges of wounding and causing grievous bodily harm to the female victim (and by there I am referring to the attacks with the audio visual cables and the hammer) I regard the circumstances as falling within band 2 in R v Taueki,[2] and take a starting point of seven years’ imprisonment before considering an appropriate uplift. On the charges of assault with a weapon the starting point is two years’ imprisonment.

[33] The kidnapping and wounding charge related to the van incident are less serious than the attack with the hammer and the audio visual cables, but only marginally so. Because the penalties will be subsumed within the penalty for the lead offending it is unnecessary to particularise a starting point, but I take that offending into account in considering overall whether any uplift is required having regard to totality principles.

[34] I take a similar approach to the attacks on your female victim in

January 2009, where the more serious aspects of the offending involved the attacks on your son.

[35] So far as the offending against your son is concerned the lead offences are the two counts of wounding with intent to cause grievous bodily harm. On those I consider a seven year starting point consistently with Taueki, and the other counts fall in behind having regard to their being less serious in nature, but part of the totality of your offending.

[36] In looking, therefore, at the extent to which the offending in itself should be considered, I regard a two-year uplift as being appropriate to recognise the need to mark the offending other than the sexual offending, particularly the violence towards your son, making the starting point before considering personal factors and pleas a term of 18 years’ imprisonment.

[37] I now turn to consider factors personal to you which are relevant. I have had the benefit of a comprehensive report from a clinical psychologist and two reports from a psychiatrist. They appear to reach similar conclusions about both your personal history and, importantly, the attitude which you have taken to your offending.

[38] I record that the Probation Service did not do as requested and provide a probation report for reasons which I find unacceptable. But you indicated to me, prior to the sentencing process beginning, that you recognise that the other reports provided to the Court cover all of the personal and background factors which are relevant to this matter, and you have expressly told me that you do not require the Probation Service to provide a report.

[39] You are a New Zealander of Cook Island Maori descent, now being aged

29 years. Unsurprisingly, domestic violence featured in your childhood, including physical punishments meted out by your parents using a belt, a jug cord, a piece of wood or whatever came to hand. You had an unremarkable education leaving school at the age of 15 years with no formal qualification. You have not had regular employment.

[40] Your criminal history does not assist you. You first appeared in the Youth Court at the age of 15 charged with offences which included theft, unlawful interference with a motor vehicle and aggravated robbery. You appeared in the Youth Court again at the age of 16 but your first major offending was at the age of 21 when you received the sentence of three years’ imprisonment for wounding the female complainant. Since you were released from imprisonment on that occasion you continued to commit offences, including relating to motor vehicles, and you are currently serving a term of three years’ imprisonment imposed in March of this year principally for burglary.

[41] You continue to deny the sexual offending for which you were convicted by the jury and there is nothing in the psychiatric or psychological reports to suggest any sexual dysfunction. In my view, the sexual offending can be explained by reference to your violent propensities towards your partner and your continued resorting to extreme violence in order to dominate and control her.

[42] In explanation for the non-sexual violence which you have either admitted or in respect of which you have been found guilty, you have explained that this was your reaction to your partner’s attempts to control you and “be in your face”. Mr Lawry says on your behalf that you lacked the capacity to cope with your partner’s psychiatric issues and the pressures in your relationship and I recognise those features, but they cannot excuse the many brutal attacks you inflicted over a long period.

[43] Ms Huddleston’s report reveals that your expectations of your relationships with women appear to be that you must be the dominant partner; when your perceived needs and/or expectations are not met, you react with anger and violence. On some occasions this violence appears to be impulsive and immediate while on other occasions, you appear to have delayed the expression of your violence until you are in an environment of complete control.

[44] Dr Wyness’s reports say you are remorseful for your actions and there is

some support for that in your pleas of guilty in respect of all of the offending relating

to your son. But you exhibited throughout the lengthy period of offending a complete disregard for the consequences of your actions in terms of the well-being of your victims and you showed no empathy or sympathy for them. Since your arrest and conviction, you have not demonstrated concern for your partner and son in any other tangible way, and, in such circumstances, it is not possible to say that you are so remorseful as to justify making any special allowance in your favour separately from that inherent in your guilty pleas.

[45] Both of the specialists regard you as presenting a high risk of violent reoffending and a high to moderate risk of sexual reoffending, applying the standard tests. I accept that your violence has been confined, for the most part, to domestic relationships but you pose a serious risk to any woman with whom you might later form a partnership, and I acknowledge Ms Pollett’s submissions that your violent tendencies may well find expression outside the home.

[46] The fact that proper treatment for the disordered personality which has produced your offending has not yet been attempted means preventive detention is not warranted at this stage. I have read the letter you submitted to the Court and I take it as an encouraging sign that you appear to recognise your failings and are willing to address them. Considering your expressed willingness to undergo appropriate counselling and treatment, a finite term of imprisonment is appropriate, so long as it is of such a term as to provide a sufficient opportunity for rehabilitative measures to take effect.

[47] However, I do acknowledge that at the time of this offending you were a young parent, that your partner’s mental difficulties created added pressures within the home and that you had an upbringing which did not equip you with parenting skills. You are entitled to credit for having pleaded guilty, particularly with regard to the offending against your son. I allow a two-year reduction on account of your pleas and the personal factors I have mentioned, bearing in mind, so far as the pleas are concerned, the times at which they were entered but taking also into account the strength of the Crown’s case on those charges and the fact that you did not plead guilty to all charges.

[48] I have concluded, therefore, that an end sentence of 16 years is appropriate to reflect the totality of your offending, after making due allowance for your guilty pleas and personal factors.

[49] I agree with Ms Pollett, for the Crown, that a minimum period of imprisonment should be imposed. In ordinary circumstances, taking an end sentence of 16 years, you would be eligible for parole after serving less than five-and-a-half years' imprisonment. That term would not adequately reflect the need to denounce your offending, nor would it act as a deterrent. In particular, it would not recognise the risk of reoffending which you pose. The Crown suggests that a minimum period of at least 50 percent is appropriate. Mr Lawry has submitted that any minimum period imposed should not exceed 40 percent of the nominal sentence.

[50] In the present case, rather than looking at the matter in terms of percentages, I prefer to consider it in terms of the period necessary to provide a sufficient period of actual imprisonment to enable rehabilitative steps to be taken so as to minimise the risk to the community upon your release,

[51] Mr Nikoia, I ask you now please to stand.

[52] On each of the charges upon which you were convicted by the jury you will be sentenced as follows:

(a) On the charge of sexual violation by rape, 16 years’ imprisonment.

(b) On the charge of unlawful sexual connection by anal intercourse,

16 years’ imprisonment.

(c) On the charge of unlawful sexual connection by oral sex, 16 years’

imprisonment.

(d) On the charge of wounding with intent to cause grievous bodily harm

(in the use of the AV cables), seven years’ imprisonment.

(e) On the charge of wounding with intent to cause grievous bodily harm

(using the chair and the hammer), eight years’ imprisonment.

(f) On the charge of assault with the screwdriver, two years’

imprisonment.

I deal next with the four charges to which you pleaded guilty at the start of the trial: (g) On the charge of kidnapping your partner, three years’ imprisonment.

(h) On the charge of wounding with intent to cause grievous bodily harm, being the van incident and the assault with the bottle, six years’ imprisonment.

(i) On the charge of wounding with intent to cause grievous bodily harm (that is whipping with a thick cord in January 2009), six years’ imprisonment.

(j) On the charge of assault with intent to injure (being punching your victim in the face in the van in January 2009) one year’s imprisonment.

[53] In the final category are the charges in respect of your son in January 2009 to which you pleaded guilty in September 2010:

(a) On the charge of wounding with intent to cause grievous bodily harm

by whipping your son with a grey cord, seven years’ imprisonment.

(b) On the charge of wounding with intent to cause grievous bodily harm by dragging him off his bed and pulling out his hair, seven years’ imprisonment.

(c) On the charge of assault with intent to injure, grabbing him by the hair

and shaking him, one year’s imprisonment.

(d) On the charge of assault with intent to injure by hitting him on the

head with a metal lighter, one year’s imprisonment.

(e) On the charge of injuring with intent to injure and punching him in the

stomach and ribs, three years’ imprisonment.

All of these terms are to be served concurrently.

[54] In respect of the three charges of sexual violation to which you have been sentenced to 16 years’ imprisonment, for the reasons I have given, you will serve a minimum period of imprisonment of nine years.

[55] Stand down.

...............................................

Toogood J

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[1] _{R v AM [2010] NZCA 114, [2010] 2 NZLR 750.}
[2] R v Taueki [2005] 3 NZLR 372 (CA).