Ratana v The Queen - [2013] NZCA 109

IN THE COURT OF APPEAL OF NEW ZEALAND

CA297/2012
[2013] NZCA 109

BETWEEN KERRY CHARLES RATANA
Appellant

AND THE QUEEN
Respondent

Hearing: 20 February 2013

Court: Arnold, Simon France and Dobson JJ

Counsel: E J Forster for Appellant
P K Feltham for Respondent

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Ratana v The Queen

Details

AGLC: Ratana v The Queen [2013] NZCA 109
Case: [2013] NZCA 109
Decision Date: 16 April 2013

CaseChat Overview and Summary

Kerry Charles Ratana appeals against his conviction for the sexual violation of a five-year-old girl and against the sentence imposed on him. Ratana had previously pleaded guilty to manslaughter in relation to the death of the child. The appeal is heard by the Court of Appeal of New Zealand, consisting of Arnold, Simon France, and Dobson JJ. Counsel for the appellant is E J Forster, while P K Feltham represents the respondent, the Crown.

The legal issues in this case revolve around the sufficiency of the directions given by the trial judge regarding the DNA evidence and the appropriateness of the sentence imposed on Ratana. The appellant contends that the trial judge failed to adequately address the DNA evidence that pointed to an unidentified contributor, which was not sufficiently explained by contamination. The appellant argues that the DNA evidence was exculpatory and should have led to a reasonable doubt about his involvement in the sexual violation. Furthermore, Ratana challenges the sentence on the grounds that the starting point for the unlawful sexual connection was excessively long, and that the totality principle should have resulted in a reduced overall sentence.

The Court of Appeal found that the trial judge correctly summarized the DNA evidence and that it did not support either the Crown's case or the appellant's exculpation. The Court held that the DNA evidence was capable of supporting multiple possibilities, and it did not provide assistance one way or the other. The Court further noted that defence counsel, a highly experienced criminal Silk, did not raise any concerns about the trial judge's summation of the DNA evidence during the closing address. Therefore, the Court dismissed the conviction appeal.

Regarding the sentence, the Court of Appeal found that the trial judge was entitled to consider the aggravating factors of the sexual violation separately, despite their overlap. The Court held that the sentence imposed on Ratana was appropriate, taking into account the totality of the offending and the circumstances surrounding the killing. The appeal against the sentence was also dismissed.

In conclusion, the Court of Appeal dismisses the appeal against both the conviction and the sentence. The appellant's conviction for the sexual violation and the sentence of 16 years and six months' imprisonment, with a minimum period of imprisonment of eight years and three months, are upheld.

Orders