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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