Ratana v The Queen
[2013] NZCA 109
•16 April 2013
| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA297/2012 [2013] NZCA 109 |
| BETWEEN KERRY CHARLES RATANA |
| AND THE QUEEN |
| Hearing: 20 February 2013 |
| Court: Arnold, Simon France and Dobson JJ |
| Counsel: E J Forster for Appellant |
| Judgment: 16 April 2013 at 3 pm |
JUDGMENT OF THE COURT
The appeal against conviction and sentence is dismissed.
____________________________________________________________________
REASONS OF THE COURT
(Given by Arnold J)
Introduction
The appellant, Mr Ratana, was convicted following a jury trial before Clifford J on one count of sexual violation by unlawful sexual connection of a five year old girl. He had previously pleaded guilty to her manslaughter. The appellant was sentenced to a total of 16 years, six months’ imprisonment, with a minimum period of imprisonment of eight years, three months.[1] The appellant now appeals against his conviction on the sexual violation charge and against his sentence.
Background
[1] R v Ratana [2012] NZHC 811.
At the relevant time, the appellant was living with his then partner, their two year old son and his partner’s two daughters from an earlier relationship, aged seven and five. On 20 December 2010, his partner was visited at the house by a friend and her two young children. They left early in the afternoon. Later, around 3.30 pm, the appellant’s partner left to work a 4 pm – 10 pm shift at a local retail outlet, leaving the appellant at home to look after the children. When the appellant’s partner arrived home from work around 10.30 pm, the appellant was on a couch in the living room with their son asleep on a mattress on the floor near him. Having eaten a meal which the appellant had prepared for her, the appellant’s partner went to sleep on the mattress in the living room beside their son while the appellant went to sleep in their bedroom.
The appellant’s partner was woken up by the sound of the appellant talking on his cell phone. He kept apologising. When the appellant’s partner tried to find out what was wrong, the appellant kept apologising and began crying. The appellant’s partner then spoke to the appellant’s father, who was the person the appellant had been speaking to on the cell phone. Neither of them was able to understand why the appellant was so upset.
After a number of phone calls involving the appellant and members of his family, the appellant’s partner went, on instinct, to check her daughters in their bedroom. Her elder daughter was fine but the younger, the five year old, was cold. The appellant’s partner realised that she was dead. She confronted the appellant. According to his partner’s evidence, the appellant said “I’m sorry. I love you. I raped her”. The appellant’s partner immediately rang the police and told them what had happened and what the appellant had said. The appellant left the house and was located by police several hours later.
When interviewed by the police, the appellant admitted responsibility for the victim’s death. He said that the child had been playing up so he had hit her on the chest with a lot of force and she had stopped breathing. He denied that he had sexually violated the child, or that he had admitted to his partner that he had raped her.
Dr White conducted a post-mortem on the victim. Her opinion was that the child died from blunt force trauma to the chest, which caused severe internal injuries from which the child would have died within minutes. Dr Smith, a paediatrician, examined the child’s genitalia as part of the post-mortem. He observed fresh haemorrhaging and areas of bruising, which he considered was caused by the insertion of a finger, penis or blunt object. While not able to be certain about the timing of the genital injuries, Dr Smith concluded that they would have been extremely painful and the victim would have been crying for a considerable time.
Dr Smith’s report was reviewed by another paediatrician, who agreed with Dr Smith’s conclusions.
There was no evidence of semen staining on the bed or surrounding areas, in the living room or on the victim’s underpants. DNA testing was carried out on samples taken from the appellant, the victim and various items of clothing. The effect of that evidence is set out below.
Basis of conviction appeal
The sole ground of appeal relates to the Judge’s directions on the DNA evidence. Mr Forster submitted that the Judge had failed to cover the effect of the DNA evidence that there was an unidentified contributor to the DNA from a sample taken from the victim that was not adequately explained by the possibility of contamination. He argued that the DNA evidence was exculpatory of the appellant. As a consequence, the defence had not been put to the jury fairly.
DNA evidence
Clifford J summarised the effect of the forensic evidence relating to this testing as follows:[2]
[2] R v Ratana HC Napier CRI-2011-041-84, 14 March 2012.
[27] Ms Patel gave evidence about the results of the DNA testing that had been carried out on various samples. Now, her evidence was quite complicated, as you will have heard yesterday, but I think it can fairly be summarised as follows:
(a)Ms Patel explained that DNA testing involves 15 sites on the DNA molecule which produce 30 results. There is also a special test for male DNA, using the Y chromosome, and that uses 12 sites and produces 12 results. Here the DNA found in the course of this investigation was checked against reference samples obtained from [the victim], Mr Ratana other people involved in the case, including the doctors and the scientists.
(b)In terms of the DNA tests that were carried out on samples obtained from Mr Ratana himself, no DNA that could have originated from [the victim] was found.
(c)DNA not originating from [the victim] was found on the swabs taken from her neck. Ms Patel referred to this as a minor male sample. This DNA could not have originated from Mr Ratana or anyone else who provided reference DNA. You may recall Ms Patel called that Profile A.
(d)In terms of the DNA tests carried out on the samples from inside [the victim], no DNA could have originated from anyone other than her except:
(i)on the blind or high vaginal swabs results were obtained at two test sites. Those could not have originated from Mr Ratana but could have come from Dr White; and
(ii)on the swab taken from the introital area, that is the area around the hymen by the entrance to the vagina, three extra results, that is results not attributable to [the victim], were found. Two of those could not have originated from Mr Ratana but could have come from someone with Dr White’s DNA profile. Of the other result, it matched or was common with Mr Ratana’s profile and it was also common with Mr Mahoney’s profile. But the evidence was, those partial results really do not prove anything very much at all. As Ms Patel said, very little if anything can be taken from those results. It is not possible to say whether one or more persons contributed them, whether they arose from contamination or whether they had actually been on the swabs originally, nor is there anything that could be said whether those results are in common with what Ms Patel called Profile A. Therefore there is nothing in those results that really links Mr Ratana with this crime in any way.
(e)Ms Patel also gave evidence of DNA testing of [the victim’s] underpants. Male DNA was found during that test. It was found by reference to five out of the 12 relevant sites. At those five sites, the results were consistent with DNA from Mr Ratana or his son …. But because again they were only partial matches, those test results do not mean that that DNA had come from Mr Ratana. You need to be very clear on that point. Ms Patel also confirmed that when a group of people live together it is likely there will be DNA from those people found on material within the house. Ms Patel referred to transfers of DNA in the laundry and under cross-examination by Mr Forster she also confirmed that it could for example be left when someone folds laundry. So finding DNA from people in a house on other people could be explained by all sorts of reasons.
(f)Ms Patel also gave evidence of what was termed P30 testing. That is testing for sperm on the swabs and no positive results were obtained.
Counsel for the prosecution and the defence dealt with the DNA evidence in their closing addresses. Prosecuting counsel went through the evidence in some detail before submitting that the DNA did not provide the answer to the case. Mr Rowan QC, who appeared for the appellant at trial with Mr Forster, gave the closing address on behalf of the appellant. He commented on the DNA evidence at several points. The strongest submission was made early in the closing:
… and remember also the scientific evidence that really excludes Mr Ratana from being the offender and the whole purpose of that was to inculpate him – to involve him but, indeed, it excludes him and, of course, is likely to destroy the argument particularly of [penile] penetration.
Clifford J outlined the Crown and defence cases in relation to the DNA evidence in the following way. In relation to the Crown case, the Judge said:[3]
[30] For the Crown and as he had at the outset, Mr Walker submitted that the answer to this case was not to be found in the DNA evidence. That could neither prove nor disprove the case against Mr Ratana. Rather, Mr Walker’s argument was that the important evidence was the medical evidence as to the injuries [the victim] had suffered, the comment that [the appellant’s partner] said Mr Ratana had made admitting that he had raped [the victim] and Mr Ratana’s actions on the evening of 20 December.
…
[34] Finally, Mr Walker went through the DNA evidence in some detail. At the end of the day, and particularly as regards the foreign DNA samples found in [the victim], as he put it we simply do not know how they got there or who they came from.
[3] R v Ratana, above n 2.
In relation to the defence case, Clifford J said:
[41] As regards the DNA evidence, Mr Rowan acknowledged that it did not take matters very far but said that in fact, it excluded Mr Ratana. Mr Rowan also in that context pointed to the fact that the fingernail scraping sample from Mr Ratana had not been analysed. As I think you heard from Ms Patel in particular, the evidence, from a scientific point of view, cannot be said to exclude Mr Ratana. What Mr Rowan was submitting was that because of the absence of any DNA evidence linking in any realistic way Mr Ratana to the injuries [the victim] suffered, there had to be in these circumstances a reasonable doubt in your mind that he was the offender. Mr Rowan also drew your attention to [the appellant’s partner’s] evidence in cross-examination relating to [a friend] and the two little boys having been at [the house] that day. This was significant from two points of view: [the appellant’s partner] had not told anyone that and that significantly undermined her credibility as a witness, going to whether or not you think she was honest in what she said about Mr Ratana having told her [the victim] had been raped. Secondly, it meant that there were three people who could have had contact that day with [the victim] and therefore, because DNA reference samples were not taken from them, they cannot in fact be excluded in the way that other people can.
As can be seen, the Judge contradicted Mr Rowan’s observation that the DNA evidence excluded the appellant and went on to explain what he considered Mr Rowan was driving at.
The essence of Mr Forster’s argument on appeal was that the DNA evidence was not neutral but exculpatory. It was very unlikely, he submitted, that the appellant could have been a partial contributor of the DNA. If the appellant had committed the sexual violation, more in the way of matching DNA would have been left.
However, as Ms Feltham said, this proposition is unsupported by any evidence. Defence counsel put it to Dr Smith and to Ms Patel. Dr Smith seemed to accept that if a penis had been inserted into the victim’s vagina, there was likely to have been more DNA but said that would not necessarily be the case if a finger was inserted. More importantly, however, he indicated that he was not an ESR scientist and suggested that the questions should be directed at them. Ms Patel was asked whether the penetration of a five year old’s vagina was more likely to leave DNA but said that she was unable to say as there were no relevant studies.
As we see it, the DNA evidence was capable of supporting a number of possibilities. It did not support the Crown’s case or exculpate Mr Ratana. The Judge summarised the effect of the evidence clearly and helpfully. The jury could have been in no doubt that it did not provide assistance one way or the other and that they had to focus on the other evidence, including in particular whether the appellant had made the admission to his partner and whether there was any reasonable possibility that someone else could have inflicted the injuries to the victim’s vagina at some earlier point given the ongoing pain they would have caused her.
Further, as we have said, Mr Rowan gave the closing address for the appellant. He is a highly experienced criminal Silk. If he had considered that the Judge misstated the effect of the DNA evidence when summarising the defence case, we have no doubt that he would have raised it with the Judge at the conclusion of the summing up, particularly given that he did raise another matter.
Finally, Mr Forster submitted that the vaginal injury could have been inflicted on the victim up to 72 hours before her death, so that someone other than the appellant could have inflicted it. He pointed in particular to the visit of the friend and her two young children before the appellant’s partner left for work. However, the expert evidence was that the injuries would have caused the victim extreme pain and caused her to cry for an extended period. It is inconceivable that the appellant’s partner would not have noticed that something was amiss with the victim while she was looking after her if the victim had suffered such a painful injury.
For these reasons, we dismiss the conviction appeal.
Sentencing
Clifford J sentenced on the basis that the appellant had sexually violated the victim, causing her severe pain. That caused her to become very distressed and the appellant reacted by killing her, albeit without murderous intent. The Judge observed that the appellant was fortunate not to have faced a charge of murder. He sentenced for the sexual violation first and the manslaughter second.
The Judge noted the observation of this Court in R v AM to the effect that while digital penetration is usually less serious than penile penetration or penetration by a blunt object, that is not always the case – it depends upon the particular circumstances.[4] The Judge noted three aggravating features of the offending: the vulnerability of the victim, the great pain caused to her by the sexual violation and the breach of trust arising from the fact that the appellant was a caregiver to the victim. He rejected the defence contention that the offending fell at the top of band 1 or bottom of band 2, finding instead that it was at the top of band 2 or bottom of band 3. Clifford J adopted a starting point of nine years’ imprisonment. There were no mitigating factors in relation to the offending.
[4] R v AM [2010] NZCA 114, [2010] 2 NZLR 750 at [73].
In relation to the manslaughter conviction, Clifford J acknowledged that there was no single guideline judgment. Having noted the starting points adopted in several other manslaughter cases involving young children, the Judge concluded that a 10 year starting point was appropriate to reflect not only the aggravating factors relevant to the sexual violation conviction, but also the extreme force used, the appellant’s failure to obtain medical assistance and his failure to tell his partner when she returned home what had happened. He then allowed the appellant a discount of 25 per cent for his guilty plea, producing an end sentence of seven years, six months’ imprisonment. On a cumulative basis, this produced an end sentence of 16 years, six months’ imprisonment.
The Judge then considered totality and concluded that the end sentence of 16 years, six months was appropriate to the circumstances of the offending. He then imposed a minimum period of imprisonment (MPI) of 50 per cent in respect of each of the individual sentences, producing a combined MPI of eight years, three months’ imprisonment.
Basis of sentence appeal
The sentence appeal was based on the contention that the starting point of nine years adopted for the unlawful sexual connection was too long, so that the end sentence was manifestly excessive. Mr Forster argued that a sentence in the range of six to seven years’ imprisonment was sufficient, and that a discount should have been given for totality. The basis for this argument was that the aggravating factors identified by the Judge – vulnerability, injury and breach of trust – overlapped to a considerable extent as all flowed from the young age of the victim.
We do not accept this submission. Vulnerability reflects the young age of the victim, breach of trust reflects the fact that the appellant was her caregiver. They are distinct concepts and to treat them as effectively the same or as overlapping does not give sufficient weight to the particular concerns to which each is addressed.
Mr Forster suggested that totality principles required some reduction in the overall sentence. Sensibly, he raised no challenge to the manslaughter conviction component of the sentence. The admitted circumstances of the killing place this case at the outer limit of cases where it could credibly be suggested that there was a lack of murderous intent. We agree with the Judge that Mr Ratana was fortunate not to be charged with murder. Given that context, we consider that the Judge was entitled to reach the view that he did, for the reasons he gave.
Accordingly, we reject the sentence appeal.
Decision
The appeal against conviction and sentence is dismissed.
Solicitors:
Crown Law Office, Wellington for Respondent
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