Home | Databases | WorldLII | Search | Feedback Court of Appeal of Fiji

Kivi v State [2015] FJCA 88; AAU0071.2014 (15 June 2015)

IN THE COURT OF APPEAL, FIJI
[On Appeal from the High Court]

CRIMINAL APPEAL NO.AAU 0071 OF 2014
[High Court Criminal Case No. HAC 201 of 2012]

BETWEEN:

AISAKE KIVI
Appellant

AND:

THE STATE
Respondent

Coram : Hon. Mr. Justice Daniel Goundar
Counsel : Mr. J. Savou for the Appellant
Ms P. Madanavosa for the Respondent

Date of Hearing : 20 November 2014
Date of Ruling : 15 June 2015

RULING

[1] This is an application for an extension of time to appeal against sentence. The appeal is out of time by 27 days.

[2] The appellant was charged with the following offences:-

Count 1 – Rape

Count 2 – Sexual Assault

Count 3 – Indecent Assault

[3] Before the trial commenced, the appellant pleaded guilty to sexual assault and indecent assault. He was tried on the charge of rape and found guilty.

[4] On 22 April 2014, the appellant was sentenced to a total term of 13 years' imprisonment for all three offences with a non-parole period of 11 years.

[5] The victim was a 13-year old girl. At the time of the offences, she was a student. The appellant was her teacher.

[6] The grounds of appeal are:

1. The learned trial Judge erred in law and in fact when he failed to separately deduct the time the Appellants spent in remand.
   
2. The learned trial Judge erred in fact and law when he failed to justify the imposition of a non-parole period considering the circumstances of the Appellant.
   

[7] The trial Judge used a two-tiered approach in sentencing. Firstly, he identified an appropriate range for rape and picked 12 years as his starting point. The sentence was then adjusted to reflect the aggravating and mitigating factors.

[8] The mitigating factors identified by the trial Judge were as follows:-

(i) At the age of 49 years, this is the accused's first sexual offence;

(ii) He had apologized to the complainant's parents;

(iii) He had been remanded in custody for approximately 11 months 2 weeks.

[9] The trial judge gave a reduction of 3 years to reflect the above factors. Clearly, the remand period was taken into account by the trial Judge. In terms of quantification, the appellant was given 11 months and 2 weeks for the remand period, while the balance of 2 years and 2 weeks was for his previous good character and apology to the victim's parents.

[10] The trial Judge considered the offences serious because of the gross breach of trust arising from teacher and student relationship. The head sentence of 13 years' imprisonment with a non-parole period of 11 years is within the tariff for child rape. There is no arguable error in the sentencing discretion of the trial Judge.

Result

Extension of time is refused.

Leave to appeal against sentence refused.

....................................
Hon. Mr. Justice D. Goundar
JUSTICE OF APPEAL

Solicitors:
Office of the Legal Aid Commission for Appellant
Office of the Director of Public Prosecutions for State