R v Ratana

[2012] NZHC 811

IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

CRI-2011-041-0084 [2012] NZHC 811

THE QUEEN

v

KERRY CHARLES RATANA

Hearing:         27 April 2012

Appearances: C Walker for the Crown

J Rowan QC for the prisoner

Judgment:      27 April 2012

SENTENCING NOTES OF CLIFFORD J

[1]      Mr Ratana, you appear for sentence for the manslaughter and sexual violation of Sahara Jayde Baker-Koro on 20 December 2010.  You pleaded guilty to Sahara’s manslaughter and, following a jury trial, were later found guilty of one count of sexual violation of Sahara by unlawful sexual connection. The maximum penalty for manslaughter is life imprisonment and for sexual violation is 20 years.

[2]      I acknowledge the presence in Court today of Sahara’s mother Chantally Baker, her paternal grandmother Karen Koro, and the many members of Sahara’s whanau who are here.  I also acknowledge the awful horror of the events that have brought you here.   But I know that unless a person had experienced those events

themselves they could not understand the full extent of your feelings.

R v RATANA HC NAP CRI-2011-041-0084 [27 April 2012]

[3]      I  also  acknowledge  the  presence  in  Court  today  of  Mr Ratana’s  parents Charles  and  Delena  Ratana,  and  of  your  quiet  presence  in  Court  throughout Mr Ratana’s  trial.    Mr Ratana,  you  are  fortunate  to  have  the  ongoing  love  and support of your parents.

[4]      Given the nature of the charges you face and the significance for sentencing of your guilty plea to the charge of manslaughter, and the jury’s guilty verdict on the charge of sexual violation, I will first set out the factual basis upon which I will sentence you.  I will then – in light of those facts – explain the approach I will take in determining your sentence.

Facts

[5]      The sad facts which form the basis upon which I am to sentence you today, Mr Ratana, can be briefly stated.

[6]      On 20 December 2010 you were living with your partner, Chantally Raelene Baker, Chantally’s two children – Taylah then aged seven and Sahara – then aged five but nearly six, and your and Chantally’s child Rome, at 69 Riverbend Road here in Napier.  A friend of Chantally’s, with her two young sons, had been visiting that day. At trial, Chantally’s evidence was that she and her friend had sat out at the back of the house during the day, and the children had been playing.

[7]      Chantally Baker, who worked part-time at The Warehouse, left home for work that day at about 3.30pm.  By the time she left for work, her friend and her two children had left.

[8]      Ms Baker returned to her home at 69 Riverbend Road shortly after 10.30pm that evening.  You were still up on the couch in the living room.  Ms Baker ate a meal that you had prepared, and went to bed on the mattress in the living room with your son Rome. You went to sleep in another room.

[9]      Sometime later, Ms Baker was awoken by the sound of the phone ringing and by you talking on a cellphone.  She could hear you saying “I’m sorry, I love yous,

I’m sorry” or words to that effect.  She went out and asked you what was wrong. You said you just needed to talk to your father.  Ms Baker’s evidence was that you were drunk by then and had a hammer in your hand.  When asked what you were doing, she said that you said to her “I hate my life, I’m sorry, I’m sorry” and just kept crying. At one point Ms Baker spoke to your father, and said to him that she did not know what was wrong.  You and your family kept ringing each other for some time.  At one point you came in and sat in a chair in the lounge and, crying, said again “I’m sorry, I love you, I’m sorry”.

[10]     At that point Ms Baker’s evidence was that her instinct told her to go and check on her daughters.   She checked first on Taylah.   There was nothing wrong there.    She  then  checked  on  Sahara  and  found  that  she  was  cold.    Ms  Baker confronted you and asked what you had done.  Ms Baker’s evidence was that you said to her “I’m sorry, I love you, I raped her”. At that point Ms Baker rang 111, and you left the house.

[11]     You were in contact with your family throughout the course of the evening and into the early hours of the morning.  At approximately 4.40am the Police found you at a phone box in Taradale. You returned to the police station.  You confessed to having killed Sahara by pressing down forcefully on her chest.  You denied having said to Ms Baker that you had raped Sahara, or had done anything in a sexual way to her.   In explanation for your actions, you said that Sahara had been misbehaving, “playing up, crying and stuff”, as you put it, and that you had “just lost the plot”. Mr Ratana, you said you wanted her to be quiet.  After you had pressed down on her chest Sahara had lost consciousness and had never woken up.  You had tried CPR on her but that did not work and you panicked. You said you knew it was too late to call the ambulance.

[12]     The medical evidence from the post mortem was that, consistent with your confession, Sahara died as a result of a rupture of the right atrium of the heart caused by rapid compressive force.

[13]     The post mortem examination also found evidence of sexual violation.  The medical evidence was that the injuries observed were consistent with penetration of

Sahara’s  genitalia by either a  finger,  a  penis  or by another blunt  object.   That evidence was also that the injuries observed would have caused Sahara severe pain.

[14]     You were interviewed again by the Police following the post mortem.  You again denied any sexual contact with Sahara.

[15]     As the jury’s verdict shows, the jury were sure that that was not the case.

[16]     The  Crown  submits,  and  I  agree,  that  the  logical  inference  is  that  you sexually violated Sahara whilst her mother was at work, that that was the trigger which caused her – as you put it in your Police interview – to “play up”, you – again as you put it – then “lost the plot” and applied significant force to Sahara’s chest to “shut her up”.  The Crown also submits, and again I agree, that I can infer that at least part of the motivation for not calling the emergency services on the basis of the jury’s verdict was that you had sexually violated Sahara.

[17]     The charge that you pleaded guilty to, however, was one of manslaughter, not of murder.  Implicit in that, for the purposes of sentencing, is that you did not kill Sahara for the purpose of facilitating her sexual violation, or of avoiding detection for it.  Also implicit in that is that you did not act at that point with a murderous intent.

[18]     I proceed on that basis.

Sentencing process

[19]     I turn now to explain the sentencing process.

[20]     In determining a sentence a Judge must – in general terms – first identify what is called the starting point, that is a sentence which reflects the seriousness of the offending, the seriousness of what happened.  The starting point is then adjusted to take account of factors personal to the offender that might call for a lesser or a higher sentence than the starting point first identified.  As a final step, credit must then be given for a guilty plea.

[21]     This is a difficult sentencing exercise.   It is difficult because of the very serious  nature  of  your  offending.    It  is  also  difficult  because  of  the  obvious connection between the two charges you face, and yet of their accepted – in terms of the nature of those charges – independence.  Therefore here I propose to sentence you  separately  for  each  charge,  so  that  your  overall  sentence  will  be  the  two sentences added together.  I will sentence in the order in which I infer your offending occurred, that is first on the charge of unlawful sexual connection and then on the charge of manslaughter.   Once I have set those two sentences I will consider the overall sentence that results to ensure that it does not give a total period of imprisonment completely out of proportion to the seriousness of your offending.

[22]     In determining those sentences I am to have regard to relevant provisions of the Sentencing Act 2002.  Here these importantly include the need to denounce and to hold you accountable for this very serious offending, and the need to encourage you to take responsibility for and to acknowledge that harm.   Also of particular relevance here is the need to provide for the interests of your victims, including the family, and to protect the community from you as necessary.   I am also to take account of the need to assist in your rehabilitation.  In all of this I am required to impose the least restrictive outcome that is appropriate in the circumstances.

[23]     In determining your sentence I will consider the pre-sentence report that has been  provided to  me, the victim  impact  statements  that  have been  prepared  by Chantally Baker and Sahara’s paternal grandmother Karen Koro, counsels’ submissions and the letter that you have written which has been provided to me this morning.

Pre-sentence report

[24]     Mr Ratana, your pre-sentence report records that you are 25 years old, and that you had been seasonally employed in the meat works for five years after leaving high school  at the sixth form level but at the time of this offending  you  were unemployed.  You had been in an on/off relationship with Ms Baker since 2004, but had been reconciled since June 2010 when you had returned to live with her.  The relationship had been volatile and there had been a history of domestic violence as a

result  of  which  you  have  completed  a  Living  Without  Violence  programme  in

December 2009.

[25]     Your parents remain supportive of you, although they do not condone your actions.  Both acknowledge that they were aware of your tendency not to deal well with situations when you were angry, and had witnessed that in other settings as well.

[26]     Your pre-sentence report discloses that alcohol and drug screening tests have not indicated any harmful pattern of substance abuse, although you have acknowledged that alcohol use has been a factor in the past.  You have quite some number of  previous  convictions.   These include violence (both  in  the domestic context and involving the Police) although of a reasonably low level nature, breaches of community based sentences as well as other alcohol related driving and other minor offending.  You have twice been sentenced to imprisonment but to very short periods.

[27]     You have written a letter which has been provided to me this morning to the family of Sahara.   In it you repeat your regret and remorse for her death.   You continue, however, to maintain your innocence as regards the offence of sexual violation by unlawful sexual connection.  You say you are very sorry for what you have done and the pain you have caused.  I accept that that is the case.

Victim impact statements

[28]     Karen Koro, Sahara’s grandmother has read out her victim impact statement

in Court today.  I do not need to repeat the deeply felt hurt that she expressed.

[29]     Chantally, Sahara’s mother, has also provided a victim impact report to the Court.  Her statement focuses on the emotional pain this offending has caused her and the loss it has brought about.   She speaks of her love for Sahara, who was a “bright, bubbly, [and] loving” child whom she will forever remember for “being such a beautiful girl”.

[30]     Chantally records that she thinks about Sahara every day and often wakes up after having nightmares.   She emphasises that she cannot move on from what has happened because emotional pain has taken control of her life.   She has moved Taylah to Australia so that Taylah can be free from the nightmare of what has happened to her younger sister as she is old enough to understand and misses her a lot.  Chantally speaks of the challenge of one day having to tell Rome that his father killed his sister.  She says the fact that Sahara was also raped, as she maintains is what happened, has made things even worse, as has been the judgment of others because it was her partner who killed her daughter.

[31]     Chantally cannot begin to understand why you did what you did.  She states that the two trials were incredibly difficult for her and that it makes her sick that you have not admitted what you have done.  She fails to understand why you pleaded guilty to manslaughter but not to rape.  It hurts her that you have never apologised.  I acknowledge you have written a letter today.  She states that all she wanted was the truth and the truth would set her free, but that you will not give her that.

[32]     There is little I can add to those victim impact statements, Mr Ratana, other than to tell you that if you have not done so already you should read them and think about them very carefully indeed.

Sentencing discussion

[33]     Turning now to my sentencing analysis.

[34]     As I have already indicated, in determining your sentence I proceed on the basis that you sexually violated Sahara, causing her the severe pain the medical evidence referred to.  That, in turn, distressed her and you reacted to that by killing her, albeit without murderous intent.  I have to say that you may have been fortunate to not face a charge of murder.

[35]     Be that as it may, I will therefore sentence you first with respect to the charge of sexual violation and then with respect to the charge of manslaughter.   In determining your sentence for sexual violation by unlawful sexual connection, I will

disregard the fact that shortly thereafter you were responsible for Sahara’s death. That is, I will treat your sentence on that charge at this point as if that was the only charge you were facing.

[36]     Although Chantally stated in evidence that you said you had raped Sahara, at trial before me you faced a charge of sexual violation by unlawful sexual connection and not by rape.   I will therefore sentence you by reference to the principles that apply to that charge, and not to a charge of rape.  That is not in any way to express a view on the evidence given by Sahara’s mother.  Rather, and as I have said, it reflects the charge you faced and the nature of the medical evidence I heard.  What is the implication of that here?

[37]     Sexual violation by rape necessarily involves penetration by the penis.  Here the medical evidence was that penetration could have been by penis, blunt object or finger.   In R v AM,[1]  the case we have heard referred to this morning already, the Court of Appeal gives guidance for sentencing on both rape and unlawful sexual connection.   There it was accepted that – generally speaking – digital penetration may be regarded as a less serious form of sexual violation than rape or penetration by a blunt object.

[1] R v AM [2010] 2 NZLR 750.

[38]     But that is, however, not always the case.  As the Court of Appeal said in R v

AM:[2]

[2] At [73].

It  would  be  wrong to suggest  that  violation by digital  penetration  ... is always less serious.  This was recognised by this Court in R v Singh,[3] ...  The Court  observed  that  an  argument  based  on  the  suggestion  that  anything which did not involve penile violation “will necessarily be treated less seriously cannot be tenable”.[4]   The Court continued:[5]

[24]   There will be situations where lesser penalties for non-penile penetration are appropriate, but any rigid categorisation is unhelpful. As the circumstances of this case clearly demonstrate, it is the total circumstances which need to be assessed and it is the combination of them which will indicate the appropriate sentencing level.

[3] R v Singh CA160/02, 26 November 2002.

[4] At [21].

[5] At [24].

[39]     I bear those comments of the Court of Appeal in mind when considering your sentence,  given  in  particular  the  degree  of  harm  caused  by  your  actions,  as  is apparent from the medical evidence.

[40]     In R v AM, and as you have also heard this morning, the Court of Appeal identified a number of factors which are relevant to determine the level of a person’s culpability or blame and therefore the level of their sentence for sexual violation. These factors can be derived also from the provisions of s 9 of the Sentencing Act.  I mention  s 9A of  the Act  as  also  being  relevant,  as  that  section  emphasises  the significance of those factors for offending involving violence against children under the  age  of  14  years.    Section  9A has  been  said  to  reflect  society’s  particular abhorrence of such violence.

[41]     In my view, of those factors, the ones relevant here are:

(a)      The  vulnerability  of  Sahara:  it  is  difficult  to  imagine  a  more vulnerable victim than a very young child.

(b)The degree of harm to Sahara: the medical evidence was that she would have suffered from severe pain.

(c)      The breach of trust involved: again, it is hard to imagine a greater breach of trust than that involved when a parent or caregiver sexually violates a young child placed in their care.

[42]     Additionally, and with a young and vulnerable child, the harm caused also includes the impact of this offending on others, on Sahara’s mother and father, her grandparents and the other members of her whanau.  At the same time, and when assessing harm arising out of Sahara’s sexual violation, I have to be careful to – as best as I am able – distinguish the harm that was caused by your killing her so that I do not overemphasise matters.

[43]     The Court of Appeal identified three bands of sentences for unlawful sexual connection offending:

(a)      Band One – sentences of two to five years.  These sentences are for offending at the lower end of the spectrum where either none of the culpability factors were present or one or more may have been present to a low or moderate degree.

(b)Band Two – sentences of four to ten years: for cases of relatively moderate seriousness, involving two or more of the culpability factors which increase culpability to a moderate degree.

(c)      Band Three – nine to eighteen years. These sentences are for the most serious type of offending, for cases involving two or more of the various factors identified increasing culpability to a high degree, for example a particularly young victim or an extensive period of offending.

[44]     In my view, this is a most serious instance of unlawful sexual connection offending.  This is reflected in the three culpability factors I have identified as being present to a significant degree, together with a consideration of the harm this offending caused not only to Sahara – but to others.  I emphasise the two separate factors of vulnerability and breach of trust.   It is one thing to sexually violate a young child: it is quite another to do so to a child in your care.   In my view, this offending falls at the very upper end of Band Two, or the lower end of the Band Three.  I make that assessment not – I emphasise – because your offending against Sahara is not of a most serious kind, but because – as assessed by the Court of Appeal – more serious offending is unfortunately, in the awful realities of what the Court confronts, likely to involve more than one victim and offending over a period of time.  On the other hand, as I have already said, I think it is difficult to envisage a case involving a greater degree of vulnerability or a greater degree of breach of trust.

[45]     I therefore consider that the appropriate starting point for the charge of sexual violation by unlawful sexual connection is nine years.  In saying that, I am unable to accept the defence’s proposition that a sentence somewhere on the cusp of Bands One and Two would be adequate to respond to this offending.  In my view that does not take appropriate account of the principles in  R v AM, and the very serious

culpability factors present here.  Nor, as the cases of Patuwai and Roach establish,[6]

is Band Two limited to offending over time.

[6] Patuwai CA 199/02, 11 March 2003; R v Roach CA375/89, 8 February 1990.

[46]     There are, in my view, no mitigating factors personal to you as regards that offending.

[47]     I turn now therefore to the charge of manslaughter.  As the Crown and the defence have submitted, there is no single guideline judgment here.  In Woodcock v R,[7] the Court of Appeal discussed manslaughter offending involving children.  There a starting point sentence of ten years was upheld where a father had killed a child with one fatal blow.  That I acknowledge occurred where there had been a pattern of previous offending and abuse.  I acknowledge there was no such pattern here.  There are, however, other serious features of your offending.  Your violence against Sahara is in my view best understood as being a reaction to her distress following your having sexually violated her.  Moreover, and for whatever reason you may have had

at the time,  you failed to seek medical assistance although we know now with hindsight that that assistance would in all likelihood have been unable to save her.

[7] Woodcock v R [2010] NZCA 489.

[48]     I have considered a range of cases involving the manslaughter of young children.  I will not go into the details but, Counsel, I refer in particular to Donnelly, Skerten, Tahuri and Greaves.[8]   Donnelly appears the most analogous.  Mr Donnelly was convicted of the manslaughter of a three year old girl in his care. As a result of the young girl playing up, he had lost control, picked her up, swung her round by the legs resulting in her head hitting a solid object. Mr Donnelly tried CPR but, like you

Mr Ratana, did not call for medical help.   There his victim’s injuries also were unsurvivable. The Court of Appeal in Donnelly expressed the view that a starting point of ten years would have been more appropriate than the nine year starting point identified by the trial Judge.   Taking account of the aggravating features of your offending, namely – as with the unlawful sexual connection offending – Sahara’s

vulnerability, the breach of trust involved, but also the extreme level of force used,

your failure to seek medical help and, I note, to inform Sahara’s mother for some four hours after she returned home, I consider that the appropriate starting point for this manslaughter offending is ten years’ imprisonment.

[8] R v Donnelly [2011] NZCA 433; R v Skerten HC Whangarei CIV 2008-027-3118, 12 August 2010; R v Tahuri HC Wanganui CRI-2009-083-000677, 18 June 2010; R v Greaves CA 68/99, 13 May 1999.

[49]     There is, here, clearly a mitigating factor.  That is your guilty plea and also I need to consider the question of remorse.  The Crown submits that you should not be given the full 25 per cent credit that is available for a guilty plea.  They say this on the basis that, given your admission, it would have been hard to do anything else and that the case against you was strong.  I do not accept that submission completely.  I think your early action in confessing to Sahara’s killing was consistent with your actions in subsequently entering a guilty plea to that charge and that therefore that does not take away from the credit that you should be given.  I have also considered the question of remorse.  I acknowledge your remorse here but I am not persuaded that in these circumstances, where the guilty plea on one charge did not as matters transpired avoid the need for trial, that there should be any greater than a 25 per cent discount.  That is the discount I allow you on the guilty plea.  Accordingly the end sentence on the manslaughter charge is seven and a half years’ imprisonment.

[50]     On the cumulative basis that leads to a sentence of 16½ years’ imprisonment. I now consider the question of totality.   I am mindful that the factors of Sahara’s vulnerability and breach of trust have affected both sentences.   I have considered, therefore, whether they may have unduly influenced the overall sentence, or whether more generally a sentence of 16 and a half years is wholly out of proportion or a crushing sentence.  Here I do not think that is the case.  The fact is that Sahara was a very young child placed in your care.  That you sexually violated her and then, albeit without a murderous intent, were responsible for her death, places this offending in the most serious category of offending.  I therefore consider that the two cumulative terms resulting in an overall term of 16 and a half years imprisonment is appropriate.

[51]     I turn now to the question of a minimum period.  A person sentenced to a finite term of imprisonment is normally entitled to be considered for parole after they have served  one third of that term.   However, the Court may impose a longer minimum period if it is satisfied that, amongst other things, the normal period would be insufficient to hold the offender accountable for the harm done to the victim and

to the community by the offending, and to denounce the conduct of the offender.  I am quite satisfied that a minimum period of imprisonment is required here, particularly  to  hold  you  accountable  for  the  harm  done  and  to  denounce  your conduct.   I acknowledge Mr Rowan’s submissions, but do not consider that they deflect me from that basic conclusion.

[52]     The maximum minimum period which I can impose is the lesser of ten years or two thirds of the final sentence.  Here, by reference to the common factors of age and vulnerability, I think a minimum period of 50 per cent of each of your final sentences,  namely  four  years  and  six  months  in  the  case  of  your  sentence  for unlawful sexual connection and three years and nine months in the case of your sentence for manslaughter, making a minimum period of imprisonment in total of eight years and three months is what is called for, and I so order.

[53]     Mr Ratana, please stand.

[54]     Mr Ratana, you are therefore sentenced to cumulative terms of nine years’ imprisonment on the charge of sexual violation of Sahara Baker by unlawful sexual connection and seven and a half years for the manslaughter of Sahara Baker.  I order that you serve a minimum period of imprisonment of four years and six months as regards  your  sentence  for  unlawful  sexual  connection  and  three  years  and  nine months as regards your sentence for manslaughter.

Three strike warning

[55]     There is another thing I need to say to you, which is called the three strike warning.  Mr Rowan may have mentioned it to you.  The two offences for which you have been sentenced today are, in terms of the three strikes provisions of the Sentencing Act, what are called serious violent offences.   You must therefore be given a warning by me of the consequence of another serious violent conviction, as well as a written warning.

[56]     I therefore warn you that if you are convicted of any serious violent offence except murder after you have received this warning, you will receive a final warning.

In addition, if the Judge imposes a sentence of imprisonment for that offence, other than life imprisonment for manslaughter or preventive detention, then you will serve that sentence without parole or early release.  That is you will serve the full sentence. If  you  are  convicted  of  a  murder  after  you  receive  this  warning,  you  will  be sentenced to imprisonment for life.  You must serve the life sentence without parole unless it would be manifestly unjust to do so.  If you receive a life sentence without parole you will not be released from imprisonment.  If serving the sentence without parole would be manifestly unjust, the Judge must specify the minimum term of imprisonment you will serve.  There are some 40 violent offending sentences that could trigger matter and I am sure Mr Rowan will talk to you about it.

[57]     Before I ask you to stand down I am going to say one last thing to you, which I do not normally do but  I am going to today.   I have been impressed by the continuing presence in Court of your parents, the obvious love and support they have for you and the words your father has spoken today.  This is, I acknowledge, a very long sentence but, Mr Ratana, it will come to an end and if you have the support and love of your parents throughout that time then I hope you will rely on that to help you get through the years of imprisonment.

[58]     Mr Ratana, please stand down.

“Clifford J”

Solicitors:

Elvidge & Partners, P O Box 609, Napier 4140 for the Crown ([email protected]) J Rowan QC, barrister for the prisoner ([email protected])