R v Rameka
[2024] NZHC 324
•27 February 2024
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI 2022-090-2302
[2024] NZHC 324
THE KING v
COLIN EDDIE VAKA RAMEKA
Hearing: 27 February 2024 Appearances:
B Tantrum for the Crown A Ives for the defendant
Date:
27 February 2024
SENTENCING NOTES OF CAMPBELL J
R v RAMEKA [2024] NZHC 324 [27 February 2024]
[1] Mr Rameka, a jury found you guilty of murdering your ex-partner, Cammie Hohenberger, and of firearms offending.
[2] My job today, on behalf of the community, is to sentence you for that murder and for the firearms offending.
[3] Before I do so, I acknowledge Ms Hohenberger’s family and friends, many of whom are here in court, and in particular Cammie’s mother and sister who have spoken this morning.
[4] I will say more about how your offending has affected Ms Hohenberger’s family and friends in a moment. First, I will describe your offending. I am sorry for the pain that some in the courtroom may feel in hearing me do that, but sentencing is a public process and it is therefore something that I have to do.
Facts
[5] Mr Rameka, you and Ms Hohenberger were in a relationship for about 13 years. You had two children together, [redacted] and [redacted]. You separated from Ms Hohenberger in about 2020. You still saw your children every weekend or two.
[6] On Saturday 9 July 2022, [redacted] came to spend the weekend with you at your home in Pukekohe. He was 11 at the time. [Redacted] ended up staying longer than the weekend. You arranged with Ms Hohenberger to return [redacted] to her home on the evening of 12 July.
[7] When the evening of 12 July came, you drove [redacted] to Ms Hohenberger’s home. Before doing so, you had put a semi-automatic .223 rifle in the boot of your car. It was loaded.
[8] You arrived at Ms Hohenberger’s home at about 8.50 pm on 12 July. You backed down the driveway and parked outside Ms Hohenberger’s garage. You told [redacted] to wait in the front passenger seat of the car. You then got out of the car, went to the boot, and took out the loaded rifle. Ms Hohenberger was just outside her
garage. You fired four shots at her from close range. You fired the last shot while Ms Hohenberger was lying on the ground. Ms Hohenberger was killed instantly.
[9] Meanwhile, [redacted] was in the car. He turned to see his mother and then heard the four gunshots. He opened the car door and saw his mother lying on the ground.
[10] After you shot Mr Hohenberger, you calmly placed the rifle back into the boot, got into the car, and drove off. You dropped [redacted] at his grandmother’s house. You told [redacted] that that was probably the last time he would see you.
[11] Police located and arrested you later that night. They found the rifle and ammunition in your car. They also found other ammunition at your home.
The victims
[12] This morning Ms Hohenberger’s mother, Matilda Hohenberger, and her sister, Tiffany Hohenberger, each explained to me the devastating impact on them of your senseless murder of their daughter and sister. Mr Mackenzie has also read out statements from [redacted] and from Xaine Rooney, a friend of Ms Hohenberger.
[13] It is clear from these that Ms Hohenberger was a loving and devoted friend, daughter, sister and most importantly mother. Her death has left a void in the lives of those who loved her. They are bearing an overwhelming weight of grief and trauma. And that is something, Mr Rameka, that you need to understand.
[14] The greatest tragedy is that [redacted] and his younger sister [redacted] are now without the love and guidance of their mother. [Redacted]’s statement speaks eloquently to the many ways in which his mother provided love, warmth and support to him and his sister. All that is now gone forever. And a further consequence is that Ms Hohenberger’s mother has, at the age of 70, been thrust into the role of primary caregiver for her grandchildren.
[15] I thank all those who provided statements for the insights that you provided into Ms Hohenberger as a person and the way in which her death has affected you.
Sentencing in this case
[16] Counsel agree, and so do I, that I should impose on you a sentence of life imprisonment.1 When a court sentences a person convicted of murder to life imprisonment, the court must also order that the person serve a minimum period of imprisonment before being eligible to apply for parole. That is known as an MPI.
[17] The MPI must be not less than ten years, and must be the minimum term of imprisonment that is necessary to satisfy the four purposes set out in s 103 of the Sentencing Act 2002:
(a)holding you accountable for the harm done to Ms Hohenberger, her family and the community;
(b)denouncing your conduct;
(c)deterrence; and
(d)protecting the community from you.
[18] The issue before me today is how much longer than ten years your MPI should be. Mr Tantrum says your offending falls under s 104 of the Sentencing Act. Where s 104 applies, the Court must impose an MPI of at least 17 years, unless it is manifestly unjust to do so. Ms Ives says that s 104 is not engaged and that the MPI should be less than 13 years.
Is s 104 engaged?
[19]The first question for me is whether s 104 is engaged.2
[20] Mr Tantrum says that your murder of Ms Hohenberger engages s 104 because it was committed with “a high level of brutality, cruelty, depravity, or callousness”,
1 That is, there is no suggestion that a sentence of imprisonment for life would be manifestly unjust in terms of s 102(1) of the Sentencing Act 2002.
2 In Davis v R [2019] NZCA 40, [2019] 3 NZLR 43 at [25] the Court of Appeal said that a sentencing court could, when s 104 is invoked, begin with this question.
which is one of the features that engages s 104.3 He says there was a degree of planning to the murder, as you placed the rifle in the boot of your car before driving to Ms Hohenberger’s home, and then you did not hesitate, once you got there, to get the rifle out and shoot Ms Hohenberger. He says your use of a semi-automatic rifle meant your violence was extreme. He says Ms Hohenberger was unarmed and unsuspecting, so it is difficult to conceive of a more defenceless and vulnerable victim. He says that you were cruel and callous to kill Ms Hohenberger in front of [redacted].
[21] The Court of Appeal has made it clear that the circumstances must be exceptional before s 104 is engaged.4 The Court gave two examples that are relevant to this sentencing.5 First, s 104 says that planning will trigger s 104 only if it was “calculated or lengthy planning”. I accept there was a degree of planning in your murder, but that planning cannot be called calculated or lengthy. Secondly, victim vulnerability will trigger s 104 only if the victim is “particularly vulnerable” by reason of age, health, or any other factor. Ms Hohenberger was vulnerable because you had a rifle whereas she was unarmed. But many if not most murder victims are vulnerable to a similar extent. I do not think that the circumstances here were exceptional as far as vulnerability goes.
[22] The question, then, is whether your murder of Ms Hohenberger was committed with “a high level of brutality, cruelty, depravity, or callousness”. The focus is on the manner in which the murder was committed, rather than on matters of planning and victim vulnerability.6 There is no murder that is not in some sense brutal, cruel, depraved or callous.7 To engage s 104, these elements must be present to a “high level”. I do not consider there was a high level of brutality or depravity. Yes, you used a semi-automatic rifle at close range, but violence of that sort and degree is not uncommon in murders. The cases in which courts have found a high level of brutality or depravity are generally those involving an extended period of violence in which the victim has suffered before succumbing to her or his injuries.
3 Sentencing Act 2002, s 104(1)(e).
4 R v Gottermeyer [2014] NZCA 205 at [77](c).
5 At [78].
6 At [79](c).
7 R v Slade [2005] 2 NZLR 526 (CA) at [40].
[23] There were elements of cruelty and callousness to your murder of Ms Hohenberger. I saw the CCTV footage several times during the trial. Your actions were calm and clinical. You parked, went straight to the boot of your car, removed the rifle and shot Ms Hohenberger. You put the rifle back in the boot, got back in the car and drove off. It looked like an execution. So you showed a callous indifference to Ms Hohenberger’s life. Your actions were also cruel in that you did all this in the presence of [redacted]. You told him to stay in the car. You then shot his mother four times a matter of metres away. He said he was “right next to it”. He saw his mother lying on the ground. To make matters worse, you then drove away with [redacted]. You drove him to his grandmother’s house and dropped him off. You didn’t say anything to him other than that it was probably the last time he would ever see you. [Redacted] then had to tell his grandmother that you had shot his mother.
[24] In considering whether this meets the threshold of a high level of callousness or cruelty, I have considered the cases that Mr Tantrum and Ms Ives have referred to me, particularly those involving murders witnessed by children of the victim.8 It is always difficult to make comparisons of this sort, and I am very aware of how difficult it is to hear this for Ms Hohenberger’s family and friends. But the reality is that there are many cases that are of a much higher degree of callousness and cruelty, than even yours, Mr Rameka, where the courts have only just found s 104 to be engaged. It is clear from those cases that s 104(e) is reserved for cases showing an exceptional degree of callousness or cruelty. As callous and cruel as your actions were, I consider that they do not quite meet that threshold, so that s 104 is not engaged.
[25] I add that, even if I had thought s 104 was engaged, your psychiatric illness at the time of the offending, about which I will say more soon, would have meant that an MPI of 17 years was manifestly unjust.
8 In particular, R v Peeni [2020] NZHC 1352 (a prolonged attack, associated with taunts to the victim, witnessed by several children, would have attracted an MPI of 17 years (the minimum in s 104), had it not been for the offender’s guilty plea) and R v Cable [2021] NZHC 3129 (a prolonged attack, heard by children and witnessed by one, s 104 found not to be engaged).
MPI under s 103
[26] This means that your MPI must be assessed in the ordinary way. This requires me to compare your culpability for your offending with comparable cases of murder. To do that, I have to consider the aggravating and mitigating features of the offending and of you personally, and decide whether an additional minimum period is required to satisfy the purposes set out in s 103 of accountability, denunciation, deterrence and community protection.
[27] There are several aggravating features of your offending, most of which I referred to when considering whether s 104 was engaged. Your murder was premeditated and had a degree of planning. You used a semi-automatic weapon. Ms Hohenberger was vulnerable as she was taken by surprise and was utterly defenceless. You murdered her at her home, where she was entitled to feel safe. You were callous. You were cruel to [redacted] in exposing him so closely to the murder of his mother. You were cruel to [redacted] and [redacted] in taking their mother from them at such young ages. In combination, these factors are seriously aggravating.
[28] Ms Ives raises only one mitigating feature of your offending. She says I can be satisfied that you were suffering from acute psychosis at the time of the offending. She says this diminishes your moral culpability, and that I should take this into account in determining the MPI.
[29] At the trial, both experts agreed that you had in the past suffered from acute psychosis in the form of schizophrenia. There was plenty of historical medical evidence to that effect. They disagreed about whether you were suffering from psychosis at the time of the murder, and if so the extent to which you were suffering.
[30] Having heard and seen the evidence at trial, I am satisfied that you were suffering to some extent from a recurrence of your schizophrenia at the time of your offending. [Redacted] described that you behaved in various unusual ways in the days leading up to the murder, and that you were acting unusually on the drive to Ms Hohenberger’s. Your text messages to Ms Hohenberger in the days leading up to the murder were consistent with someone experiencing delusions to some extent. However, I consider that this affected your thinking and actions to only a moderate
degree. You were still able to look after [redacted] over the weekend. He described you over that weekend as generally normal and happy. And in the days and weeks following your arrest, when you were presumably experiencing immense stress, prison medical staff did not find that you were suffering from a severe mental illness.
[31] The jury did not accept your defence of insanity. That does not necessarily mean that they thought you were not suffering from any psychosis at the time of your offending. I consider it more likely that they rejected that defence because you did not satisfy them of the second limb of the insanity defence. In any event, the jury’s verdict does not prevent me from taking into account, when sentencing, any mental illness that you were suffering from and which contributed to the offending.
[32] I therefore accept that you were suffering from a mental illness that was a contributing factor to your offending. This is not in any way to diminish the horrendous and tragic consequences of your offending on Ms Hohenberger, her children, the rest of her family and her friends. It is simply to recognise that, because your illness contributed to your offending, your moral culpability is less than that of an offender who had no mental illness and otherwise offended in the same way.9
[33] I have considered various cases that the lawyers referred to me in their written submissions. I will mention just two. In R v Cable, counsel agreed an MPI of 12 years was warranted. The Judge imposed an MPI of 13.5 years, though that incorporated some violent offending prior to the murder. I consider that your murder had more aggravating factors than that in Cable. Mr Cable had not intended to kill his partner, whereas you intended to kill Ms Hohenberger. It is not clear that Mr Cable used any weapon. Mr Cable did not engage in an execution-style killing.
[34] The other case is R v Phillimore. Mr Phillimore shot his partner three times, in an execution-style murder. He hid the body, disposed of evidence, and then attempted to cover his tracks. The Judge imposed an MPI of 13.5 years. Your case has more serious aggravating factors. While you did little to hide evidence (other than disposing of your phone), Mr Phillimore did not kill his partner in front of children.
9 R v Gottermeyer [2014] NZCA 205 at [86]; R v Hussein [2022] NZHC 3034 at [28].
[35] On the other hand, in both of those cases there were no mitigating features to the offending, whereas there is in your case.
[36] Were it not for your mental illness, I would have adopted a starting point of 14.5 years for the MPI to reflect the many seriously aggravating features of your offending. Taking account of the contribution that your mental illness made to your offending, I adopt a starting point of 13 years for the MPI.
[37] The Crown asks me to uplift that starting point to reflect two matters. The first is for the charge of possession of the ammunition found at your home.10 I do not allow an uplift. I agree with Ms Ives that, given you were sentenced on similar charges in November 2022, and received a sentence of 12 months’ imprisonment, a discrete and further uplift is not warranted here.
[38] The second uplift sought by the Crown is for the fact that you were on bail at the time of your offending and for prior relevant convictions. In total the Crown seeks an uplift of three months. Ms Ives agrees that is appropriate. So do I. This takes the MPI to 13 years and three months.
[39] Mr Rameka, I now want to refer to the report on your background that was prepared by Shelley Turner. This says you grew up in a close-knit whānau in a loving home with strong cultural ties. Both your parents worked hard and provided for you and your siblings. You did not go without food or love. It is very unusual to read such a background when sentencing offenders in this court. The causes of your offending cannot be traced to some problems with your upbringing, and I want to emphasise that because I am fairly sure that your parents are here this morning, as they were throughout the trial. This is not on them Mr Rameka, it is on you. The causes of your offending seem to have emerged in adulthood, with your decisions to affiliate with gangs – again, not something that was part of your family or upbringing – and associated exposure to drugs, such as methamphetamine. The report also refers to
10 The Crown accepts that there need not be any uplift for the possession of the rifle and the ammunition found in the car, as these are already reflected in the starting point for the murder. I agree.
your mental health issues which I have already taken into account. Apart from that, there was nothing in the report that affects my determination of the MPI.
[40] Finally, Mr Rameka, I have been provided with a letter of remorse from you. It is brief. It suggests that you may at last be experiencing some insight into the consequences of your actions, particularly for [redacted] and [redacted] and for Ms Hohenberger’s mother and sister. But I do not consider that you have shown such a depth of remorse that I should make any change to the MPI that I have otherwise come to.
Result
[41]Mr Rameka, please stand.
[42] Mr Rameka, I emphasise that your sentence will be one of life imprisonment and not the MPI. Life imprisonment means exactly that. You will be in prison for the rest of your life until the Parole Board determines you are no longer a risk to the community. The MPI is the minimum period you must serve before being eligible for such parole. And, even if the Parole Board grants parole, you will be subject to recall to prison for the rest of your life.
[43] On the charge of murdering Ms Hohenberger I sentence you to life imprisonment. I impose a minimum period of imprisonment of 13 years and three months.
[44] On each of the charges of unlawful possession of a prohibited firearm and unlawful possession of ammunition, I sentence you to six months’ imprisonment, to be served concurrently.
[45]Mr Rameka, please stand down.
Campbell J