Overstayer gets new lifeline

By STEPHEN COOK

A judge has been accused of sending the wrong message to men who assault their spouses by throwing another lifeline to a wife-beating overstayer.

The allegation has been levelled at District Court Judge Philip Recordon after indications yesterday that he would consider letting Tuvaluan overstayer and kidney patient Senee Niusila walk free on charges of assault and threatening to kill his wife.

This would be the second reprieve for Niusila, who was discharged without conviction a year ago for beating his wife.

During that altercation, Niusila punched his wife in the face while she was breastfeeding their 18-day-old son.

The discharge without conviction was granted so Niusila could continue kidney dialysis treatment.

Dialysis costs about $70,000 a year for each patient. Niusila is one of about 400 people on the waiting list for a kidney transplant.

Under normal circumstances he faced a prison term, but Judge Recordon indicated yesterday that he was prepared to look at another discharge without conviction if Niusila stayed out of trouble and did an anger management course.

"His life is in his hands, not mine," Judge Recordon told the court.

He also requested evidence from Niusila's lawyer, Nicholas Wintour, that deporting Niusila would be tantamount to a death sentence.

Tuvalu does not have the medical facilities to provide the care he needs. Medical experts say that without that treatment Niusila would be dead within a fortnight.

The potential court reprieve has angered Opposition politicians, who say it now appears Niusila has permanent immunity from the laws of New Zealand because he is ill.

New Zealand First leader Winston Peters said Judge Recordon should rule solely on matters of law, and leave issues such as Niusila's future to politicians to sort out.

"This man should have been put in front of the court, from the court to the airport and then on the next plane," he said.

Judge Recordon had sent out a clear message that New Zealand was a "soft option" - a country where people could get away with anything.

Mr Peters said police should not tolerate a discharge without conviction and should appeal the decision to a higher court.

National's immigration spokesman, Wayne Mapp, said Niusila deserved a prison sentence.

He said any decision about Niusila's future should be left to the Minister of Immigration.

"The judge has misunderstood the situation. What signal does this send to wife beaters?"

Immigration Minister Damien O'Connor declined to comment about the case and the criticism of Judge Recordon.

Auckland University senior law lecturer Scott Optican said Niusila's case was unique and needed special handling. Sentencing was a discretionary business and the court had to take into account a defendant's special circumstances.

"It is the judge's business to look specifically at what the impact the sentence would have on this guy's life."

Niusila declined yesterday to comment about the judge's decision, but his lawyer said his client would be pleased with the outcome.


Niusila's convictions for assault and threatening to kill follow an altercation on June 13 at the Waitakere home he shares with his wife and three children.

Police said Niusila argued with his wife and then pushed her and pulled her hair. Mrs Niusila, fearing for her safety, went to the kitchen and picked up a knife.

Niusila retaliated by saying he would kill her. Police were called and he was arrested.

Last month, Mrs Niusila claimed the incident had been blown out of proportion and that she was to blame for her husband attacking her.

Last year, she also claimed she was partly to blame for her husband assaulting her.

Niusila came to New Zealand in 1998 on a three-month visitor's visa.

In May last year, despite being an overstayer and facing an assault charge, he was granted a two-year temporary work permit so he could continue receiving dialysis treatment at Auckland Hospital.

The permit was granted because Niusila's Cook Island-born wife was a New Zealand resident and the couple had a New Zealand-born child.