Attorney-General v Kauriri [2015] KICA 6; Criminal Appeal 07 of 2015 (19 August 2015)

IN THE KIRIBATI COURT OF APPEAL
CRIMINAL JURISDICTION
HELD AT BETIO
REPUBLIC OF KIRIBATI

Criminal Appeal No. 7 of 2015

BETWEEN

ATTORNEY-GENERAL
APPELLANT

AND

KATIMANGO KAURIRI
RESPONDENT

Before: Paterson JA
Blanchard JA
Handley JA Counsel: Pauline Beiatau for appellant
Raweita Beniata for respondent

Date of Hearing: 13 August 2015
Date of Judgment: 19 August 2015

JUDGMENT OF THE COURT

INTRODUCTION

1. This is an appeal by the Attorney-General against the sentence given to Mr Kauriri who was convicted of one charge of rape. He was sentenced to a term of five years' imprisonment, which was suspended for five years.
   
2. The ground for the appeal is "that the sentence is manifestly inadequate and does not reflect the gravity of the offence".
   

DISCUSSION

3. As this appeal must succeed on a jurisdictional ground it is not necessary to traverse the grounds on which a sentence may be suspended. It is noted that New Zealand Court of Appeal cases including R v Peterson (1994) 11 CRNZ 228 are useful guides.
   
4. The appeal must succeed because the High Court has no power to suspend a sentence of five years' imprisonment. The power to suspend a sentence of a term of imprisonment is contained in section 44(1) of the Penal Code which reads:
   

44.(1) Subject to subsection (2) a court which passes a sentence of imprisonment for a term of not more than 2 years may order that the sentence shall not take effect unless, during a period specified in the order, being not less than 1 year or more than 2 years from the date of the order, the offender commits another offence punishable with imprisonment and thereafter a court having power to do so orders that the original sentence shall take effect; and in this section "suspended sentence" means a sentence so suspended and "operational period" means the period specified in the order suspending the sentence.

5. There is no power to suspend a sentence of imprisonment for a term of more than two years and the suspension cannot therefore stand.
   
6. Ms Beiatau confirmed that the Attorney-General was not seeking to increase the sentence of five years' imprisonment and Mr Kauriri did not cross-appeal. This was a serious offence against a blind victim where a knife was displayed, there was a threat to kill and the respondent was in a position of trust. A sentence of five years' imprisonment was fully justified.
   

DECISION

7. The appeal by the Attorney-General is allowed. The suspended sentence is quashed and replaced by a sentence of five years' imprisonment.
   
8. Mr Kauriri must immediately surrender himself to the Police to begin his sentence which will run from the date of his surrender.
   

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Paterson JA

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Blanchard JA

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Handley JA