R v Rameka

[2012] NZHC 2457

NOTE: PUBLICATION OF NAME OR IDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BY S 139 CRIMINAL JUSTICE ACT 1985.

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

CRI 2010-063-3124 [2012] NZHC 2457

THE QUEEN

v

MARAMA RAMEKA

Hearing:         21 September 2012

Counsel:         A J Gordon for Crown

J N Briscoe for Prisoner

Judgment:      21 September 2012

SENTENCING NOTES OF HEATH J

Solicitors:

Crown Solicitor, PO Box 740, Rotorua

Davys Burton, PO Box 248, Rotorua

R V RAMEKA HC ROT CRI 2010-063-3124 [21 September 2012]

Introduction

[1]      Mr Rameka, you may remain seated until I ask you to stand.

[2]      Marama Rameka, you were convicted on 30 July 2012, after a jury trial on three counts of indecent assault and two of rape.  All offending involved the same victim, a female member of your extended family.

[3]      The indecent assaults occurred in the period between 1966 and 1971, when the victim was at primary school.   The rapes took place between 1972 and 1976, while she was either at intermediate or secondary school.  All were representative charges  based  on  evidence from  the victim  that  they occurred  on  a  number of occasions over that period of time.

[4]      You  were  acquitted  on  one  other  charge  of  rape  that  the  victim  alleged occurred at some time between 1991 and 1992, when she was about 30 years old. My view is that the jury must have had a reasonable doubt about whether you had a reasonable belief that she was consenting to sexual intercourse at that time.   That view is  consistent  with  the jury’s  acceptance  of the victim’s  evidence on  other counts.

[5]      At  the  relevant  times,  the  maximum  penalty  for  rape  was  14  years imprisonment and, for indecent assault, 10 years.  That contrasts with a maximum penalty of 20 years for rape under the current law.  Because you offended at a time when the penalty was lower, I must sentence you on that basis.

[6]      I  am  obliged  to  treat  you  in  the  same  way  that  you  would  have  been sentenced had you come before the Courts at that time.  Necessarily, that means you will receive a significantly lower sentence than would otherwise have been applied,

based on current sentencing levels.[1]

Facts

[1] See, for the present regime, R v AM(CA27/2009) [2010] 2 NZLR 750 (CA).

[7]      The victim gave evidence about a prolonged period of sexual abuse that occurred at times when you and she lived in a common residence, also occupied by other members of your whanau.  The offending moved from rubbing her breasts, to touching her outside her vagina and to oral sexual connection, during the period she was at primary school.  When she was at intermediate and secondary schools, your offending graduated to rape.  It is clear from the jury’s verdicts that they accepted those aspects of the victim’s evidence.

[8]      It is unnecessary for me to go into greater detail for present purposes.  I do, however, need to make a couple of comments about the nature and extent of the offending as they have influenced the sentence I intend to impose.

(a)      First, while the victim said that the offending occurred “all the time”, that evidence needs to be viewed through the lens or the eyes of a young girl or adolescent, as the case may be.  I am satisfied that the offending was frequent in nature, but it was clearly not something that happened every day; or even every week.   I treat the offending as having been frequent but do not attempt to be more specific than that.

(b)Second, my comments about the regularity of the offending extend to all aspects of it.  However, I think it likely that the rapes may have occurred less frequently, given the risks inherent in performing that particular sexual act in the circumstances disclosed by the victim.  By that, I mean the possibility that other people living in the house may have entered while that act of intercourse was being undertaken.

Impact of offending on the victim

[9]      The impact on the victim has been severe.  She has read her victim impact statement today.  Her story is tragic.

[10]     While, as Ms Gordon, for the Crown, accepts, the victim must take some responsibility for her life choices, I accept that the drug and alcohol addictions from which she has suffered do have a connection with the feelings of worthlessness that she experienced as a result of the continual sexual abuse that you heaped upon her.

[11]     Again, I do not intend to say anything more about the effect on the victim. The statement has said it all.  I cannot improve on what the victim has already said so eloquently.

Personal circumstances

[12]     You are now 68 years old.   At the time the offending occurred you were between 22 and 32 years of age.  Despite the jury’s verdicts, you continue to deny the offending.   That is  consistent also with  your continued denial of an earlier offence of indecent assault on which you were convicted in 1997.  As a result, you express no remorse.

[13]     While you are assessed by the probation officer as at medium to high risk of reoffending, I do not put it so high.  I treat you as low to medium risk, given your age and physical condition.  Much of the higher assessment is dependent upon the fact that you have not accepted responsibility for your actions.

Analysis

[14]     Having heard from Ms Gordon and from Mr Briscoe, on your behalf, I now proceed to explain the reasons for the sentence I intend to impose.

[15]     Imprisonment is inevitable.  The only issue for me to decide is: for how long? The important sentencing principles are to denounce your conduct, to deter you and others from committing these sorts of offences and to hold you accountable for your actions.

[16]     In the late 1970’s the whole sentencing process was much less sophisticated than it is now.[2]     A starting point reflected all aggravating factors relating to the offending.  I am required to fix a starting point by reference to sentencing levels of the time recognising also the aggravating features of this particular offending.[3]   An allowance must then be made for mitigating factors, both relating to the offence and personal to you.

[2] R v KJB [2007] NZCA 292, at para [29].

[3] R v R(CA244/02) CA244/04, 2 November 2004, at para [22] and R v KJB at [2007] NZCA 292, at para [31].

[17]     The aggravating factors are the prolonged nature of the sexual abuse (some

10 years), the emotional harm suffered by the victim, the breach of trust inherent in your offending and the vulnerability of the victim at that time.

[18]     As to sentencing levels, in 1978, our Court of Appeal in referring to a case of child rape, observed that while there were community calls for a “hard line” sentence to be imposed (a reaction which it accepted was “understandable”), it also said that it was aware that “very long sentences of imprisonment do considerable harm without

seemingly to achieve any kind of useful object”.[4]   That was the sentencing norm of

the day.   The Court  took  the view  that  lesser  terms  could  still  be  regarded  as “severe”.  In that particular case, a sentence of 10 years imprisonment was reduced to six years imprisonment.

[4] R v Pawa [1978] 2 NZLR 190 (CA) at 191–192.

[19]     However, this is not a single child rape case.   It was a prolonged series of sexual assault incidents and took various forms, including the most serious, rape. The aggravating features to which I have referred justify a starting point of eight years imprisonment.  That is consistent with like cases that have been decided in the

past.[5]

[5] In particular, I refer to R v AGR HC Auckland CRI 2006-92-11084, 13 December 2007.

[20]     As to mitigating factors, I consider that the only one of significance is the likelihood that, because of your age and physical condition, the sentence will be disproportionately severe.[6]    You are 68 years old.  You are profoundly deaf.  You

have had one leg amputated.  You have other medical ailments into which I do not

go.  I consider that an allowance of 20% should be made for those factors.  There is no doubt that  your time in prison will be much harder to serve than  a similar sentence for other offenders.

[6] Sentencing Act 2002, s 8(h).

[21]     I round the credit for that factor to one year six months.  That means that on the lead charges of rape, you will be sentenced to six years and six months imprisonment.

Result

[22]     Please stand.

[23]     Marama Rameka, on each of the two charges of rape, you are sentenced to a term of imprisonment of six years and six months.  On each of the three charges of indecent assault, you are sentenced to a term of imprisonment of four years.  All of those sentences run concurrently, so that the effective sentence is one of six years and six months.

[24]     At the time of the offending, there was no power to impose a minimum period of imprisonment, so I do not address that issue.

[25]     For the benefit of members of the media present, the suppression order in respect of your name was lifted on 30 July 2012 but the statutory prohibition on the publication of the name or identifying particulars of the complainant remains in force.

[26]     Stand down.

P R Heath J