THE QUEEN v PIRIPI HONE PANIORA [2003] NZCA 167 (30 July 2003)

IN THE COURT OF APPEAL OF NEW ZEALAND

CA148/03

THE QUEEN

v

PIRIPI HONE PANIORA

Hearing: 30 July 2003

Coram: Anderson J

Paterson J

Salmon J

Appearances: C Amery for Appellant

K Raftery for Crown

Judgment: 30 July 2003

JUDGMENT OF THE COURT DELIVERED BY ANDERSON J

[1]

This is an appeal against conviction and sentence.The appellant was tried before a District Court Judge and jury on an indictment alleging one count of being a male did assault a female, one count of wounding with intent to cause grievous bodily harm, and one count of wounding with intent to injure.The last two counts were in the alternative.In the course of the trial Mr Paniora pleaded guilty to counts 1 and 3, and was discharged pursuant to s347 of the Crimes Act 1961 on the count of wounding with intent to cause grievous bodily harm.He was sentenced to 18 months imprisonment on the count of being a male did assault a female, and a cumulative sentence of five and a half years imprisonment was imposed on the wounding with intent count.The learned District Court Judge determined that a minimum non-parole period should be imposed and she expressed that imposition in these terms:

I accordingly set the minimum period of imprisonment at two-thirds of the full term of the sentence.

[2]	We can dispose of the appeal against conviction immediately.Mr Amery of counsel has had written instructions from his client not to offer submissions or to pursue that appeal.That is a realistic appreciation of his prospects.Having pleaded guilty he could not expect this Court to allow the appeal in the absence of compelling grounds rendering it unjust that his plea should be sustained.There is no evidence or submissions before us justifying any interference in that respect.The appeal against conviction must be dismissed for want of any merit.
[3]	The position is, however, quite different in relation to the appeal against sentence.The sole ground of appeal is that the imposition of a minimum non-parole sentence in respect of the whole seven year sentence is unlawful.This is because the offence of being a male did assault a female is not amenable to the imposition of a minimum period of imprisonment and even if it were, the term of 18 months is insufficient to invoke those statutory provisions.
[4]	The Crown helpfully and candidly acknowledges that the appeal must be allowed on the point raised by counsel.We are entirely persuaded that it should.It is allowed.The order that the appellant serve a minimum term of imprisonment of two-thirds of the full term of the sentence is quashed and there is substituted in lieu an order that he serve a minimum of 44 months imprisonment in respect of the count of wounding with intent to injure.

Solicitors:

Crown Solicitors, Auckland