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Attorney-General v Pioiva [1999] NUCA 1; No 433/81 (12 May 1999)

IN THE COURT OF APPEAL OF NIUE

AT WELLINGTON, NEW ZEALAND

p class="MsoNoMsoNormal" align="center" style="text-align: center; margin-top: 0; margin-bottom: 0"> No 433/81

BETWEEN

class="MsoNoMsoNormal" align="center" style="text-align: center; margin-top: 0; margin-bottom: 0"> THE ATTORENERAL

Appellant

MICHAEL PIOIVA

Respondent

ass="MsoNoMsoNormal" style="margin-top: 0; margin-bottom: 0"> Coram: Honourable Justice Quillam

Honourable Justice McHugh

Honourable Justice Greig

Hearing: 12 May 1999 (At Wellington).

Decision: 12 May 1999

Counsel: W B G Banks for the Attorney General

S L K Guest as Advocate for Michael Pioiva

ORAL JUDGEMENT OF THE HONOURABLE JUSTICE QUILLAM

On the 6 ber the respondent pleaded guilty to two charges of causing actual bodily harm, one oone of disobeying a High Court order, one of unlawful entry, one of escaping from custody and one of assaulting a prison warden. For these he was convicted and sentenced to four separate terms of imprisonment for three months each, cumulative, and was convicted and discharged on the other two. He pleaded not guilty to five further charges and after trial was convicted on one charge of attempted rape, two of sexual intercourse with a girl under twelve years of age, one of inducing an indecent act by a girl under twelve years old and one of indecent assault.. One these charges he was sentenced to cumulative terms totalling nine years, the most serious of which was the attempted rape charge on which the sentence was five years. These were also made cumulative on the four terms of three months and so the total sentence was one of ten years imprisonment.

Those sentences were then suspended upon conditions, first that he be held in custody, second that he be taken to a ship due to leave for Auckland, third that he must not return to Niue before the expiration of the ten year sentence and fourth, that his passport was to be endorsed to show that he was not entitled to return.

Subsequently it was found that the captain of the ship would not accept the respondent as a passenger and so that chat condition was varied to provide that he be taken under escort to Auckland by air.

The Attorney-General has appealed against the sentences and in partr, against their suspensionnsion as referred to. The respondent has then filed an application for dismissal of the appeal on the ground that it was filed out of time and so before considering the sentences, we must deal with that application.

The Notice of Appeal was filed 69 days after the date of sentencing. Article 55 (a) of the Niue Constitution provides that an appeal shall lie to the Court of Appeal as a right from any sentence prescribed by the Act. The sentences imposed were within the terms prescribed for the respective offences. There is no provision as to the period within which an appeal against sentence must be filed but Article 55 (a) provides further that the Court of Appeal may grant special leave to appeal from any judgement of the High Court and the expression �judgement� includes sentence. It appears therefore that leave to appeal may be granted by this Court if it thinks proper to do so. It is necessary to consider all the circumstances.

A delay of 69 days in appealing against a sentence is on the face of it, unusually long, but the argument for the Attorney-General is that there was a change in circumstance which made the delay excusable. At the time of the sentencing the position was that the New Zealand authorities were prepared to accept for imprisonment a person sentenced in Niue because there were no local facilities for long term imprisonment. However, there was a charge imposed by the New Zealand Corrections Department of $50,000 a year for a prisoner. This for a term of ten years was well beyond the resources of the Niue government and it was for that reason the sentence was suspended and the conditions referred to, imposed. The change of circumstances was that on 15 January 1999 the Niue Government was informed by the New Zealand High Commissioner that the charge of $50,000 a year would not be made and that the respondent would be accepted to serve a term of imprisonment in New Zealand. It was on the same day as that information was received that the Notice of Appeal was filed.

p class="MsoNoMsoNormal" style="margin-top: 0; margin-bottom: 0"> Having regard to that very significant change of circumstances, we are unable to accept that a right of appeal should be denied. The very basis upon which the sentences were structured had changed. If that change had occurred before sentence it could not be contemplated that there would have been any question of a suspension of the terms of imprisonment. We are accordingly satisfied that the appeal should be allowed to proceed and the motion to dismiss the Notice of Appeal must itself be dismissed and there will be special leave to appeal.

We turn then to consider the tence imposed on the basis that there should be no suspensipension and accordingly that the conditions which were attached by the Chief Justice would no longer need to apply. The offences are in two groups. First, there were six of a relatively minor nature but the multiplicity of them called for a term of imprisonment and the only question seems to us to be whether the cumulative terms totalling one year ought to have been imposed as they were. The second group of offences were for major offences involving serious sexual assaults and interference with the respondent�s own family members. These were of course grave offences.

With regard to the first group of offences, the situation seems to us to have res in a total of sentenentences which was out of keeping with what ought to have been considered. Each of those sentences of three months may have been appropriate in themselves but to total them cumulatively at one year was, we think, an error which ought to be corrected. With regard however, to the others, which as we have said, were much more serious in themselves relating as they did to members of the respondents own family, a different view would have to be taken. The respondent had, as the Chief Justice indicated, a very bad record of previous offending and indeed was serving a term of imprisonment at the time of these matters being dealt with. It was plain that a salutary sentence was necessary to reflect the effect of the total offending which was indicated and which had to be considered in the light of the respondent�s general conduct. Accordingly, we consider that the appeal as to sentence should be allowed and that the sentences on the lesser offences, each of three months, should be made concurrent and not cumulative. But that with regard to the major charges, for the reasons generally indicated already, those should remain as to their length and as to their being cumulative, whicns tans that there would be a total for the overall offending of imprisonment for nine years. This term of nine years should of course be calculated as from the date of the original sentencing. This will then take into account the fact that the respondent has been held in custody since that date.

We have been asked to say ething about the length of time before which remission of the sentence may be considensidered when it is being served in New Zealand. We have no doubt this is a matter which must be governed by the law of Niue rather than of New Zealand and so in terms of sections 243 and 244 of the Niue Act, any period of remission may not exceed one quarter of the term.

Honourable Justice P Quillam

For the Court.

Solrs Crown Law Office Niue

S.L.K. Guest Niue, Advocate for Respondent


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