R v Makura [2017] NZDC 24484 (27 October 2017)

Last Updated: 30 August 2018

EDITORIAL NOTE: CHANGES MADE TO THIS JUDGMENT APPEAR IN [SQUARE BRACKETS].

ORDER PROHIBITING PUBLICATION OF NAME(S), ADDRES(ES), OCCUPATION(S) OR IDENTIFYING PARTICULARS OF DEFENDANT OR FAMILY PURSUANT TO S 200 CRIMINAL PROCEDURE ACT 2011. NOTE: PUBLICATION OF NAME(S), ADDRESS(ES), OCCUPATION(S) OR IDENTIFYING PARTICULARS, OF COMPLAINANT(S) PROHIBITED BY S 203 OF THE CRIMINAL PROCEDURE ACT 2011. NOTE: PUBLICATION OF NAME(S), ADDRESS(ES), OCCUPATION(S) OR IDENTIFYING PARTICULARS, OF APPELLANT(S)/RESPONDENT(S)/ACCUSED/DEFENDANT(S) PROHIBITED BY S 201 OF THE CRIMINAL PROCEDURE ACT 2011.

IN THE DISTRICT COURT AT WELLINGTON

CRI-2017-096-002309

[2017] NZDC 24484

THE QUEEN

v

[IRIRANGI MAKURA]

Hearing:	27 October 2017
Appearances:	I Auld for the Crown M Antunovic for the Defendant
Judgment:	27 October 2017

NOTES OF JUDGE D R W BARRY ON SENTENCING

[1] First, I want to acknowledge the family who are gathered here today. What I need to emphasise is that the severe penalty that will be imposed on Mr [Makura] is no reflection on the victim of this, for whom guilt and shame are part and parcel of the fact of being a victim. But nothing that happened to you is your fault, and there is no

R v [IRIRANGI MAKURA] [2017] NZDC 24484 [27 October 2017]

guilt or shame that should attach to you. This falls fairly at the feet of the defendant, and I say that alongside acknowledging the acceptance of responsibility and the acceptance of the consequences that will follow for Mr [Makura].

[2] Mr [Makura], you are [age deleted – late 40’s]. You stand for sentence today in respect of three charges of rape and another representative charge of rape, as well as other representative charges of sexual violation by unlawful sexual connection and indecent assault.

[3] These span [a 7 year date span – years deleted]. The summary of facts has it that the victim, your daughter, became the subject of these sexual assaults and violations when she was just 11 years old in [date deleted] when, firstly, she had been injured and at home. This began with you going to her bedroom when she was injured, taking her shorts off, and touching her around the genital area. She was confused and shocked, and you told her not to tell her mother, before leaving the room.

[4] From that time onwards, when she would be alone with you or the family would be out of the house, you began sexually violating her by penetrating her genitalia, her vagina, with your finger or fingers. That continued for years, and it continued alongside repeated rapes.

[5] Soon after she had recovered from the injury and [details deleted], you went to her bedroom. You led her into the lounge, where you often slept, and as well as penetrating her vagina with your fingers, you had full sexual intercourse with her. She was sore and she was shocked. She was still 11.

[6] From that point, you continued having sex with her in both the lounge and in the bedrooms of the house when your wife and her [siblings] were out, or late at night when they were asleep. Occasionally, you took her to your workplace and had sex with her there. This extended to you performing oral sex on her or requiring her to do the same to you. Over time, she came to accept that behaviour as part of her place in the family.

[7] When she cavilled at your demands, you would become angry, you threatened to remove some of her privileges, and that would usually see her relenting.

[8] As time went by and she started to understand the enormity of what was being visited on her, she told you that she would do whatever you asked her to do providing you left her [siblings] alone. She felt that was the only way to keep her [siblings] safe.

[9] This sexual activity was, by [date deleted], occurring several times a week.

[10] By early this year, she finally gathered the courage to tell her mother that you were having sex with her. You were confronted by your wife. You did not deny what had happened and you apologised to them both.

[11] But then what happened, in [date deleted], your wife was admitted to hospital for treatment. And while she was in hospital, you did it again – not once, but on sequential nights. Your daughter tried to resist when you started removing her clothing, but you persisted to the point that she submitted to you.

[12] She talked about what was happening to people at school after these last incidents, and at that point the police became involved. As soon as they did and as soon as they spoke to you about it, you admitted what had happened. You said that you knew you should not have done it and that you would take responsibility for it.

[13] You have no previous convictions whatsoever. You have been a hardworking man who has spent virtually your entire adult life providing for your family.

[14] You have heard the victim impact statement read out in Court.

[15] The letter that I have had from you makes it clear, as Mr Antunovic says, that from the outset of the police involvement, anyway, you have accepted responsibility and unconditionally acknowledged the grievous behaviour you have inflicted. I will return this letter to Mr Antunovic to provide to the prosecutor.

[16] I also have a letter from your [manager] where you have worked for the last [number deleted]-odd years, who speaks, again, of your sterling qualities as a worker and colleague.

[17] The pre-sentence report echoes your acceptance and acknowledgement of responsibility and the consequences that fall as a result. It emphasises the need that you complete an appropriate child sex offenders’ programme while serving the inevitable sentence of imprisonment. Again, it echoes the information that I have of your hardworking life, to the point that you have had virtually no social life. You do not drink alcohol. You have never used drugs. This grossly aberrant behaviour has emerged totally inexplicably.

[18] The Crown prosecutor submits that based on the seriousness of what you did and Court of Appeal guidance on cases of this kind, a starting point somewhere between 17 and 18 years’ imprisonment is warranted. The Crown acknowledges the full quota of credit by way of discount from that starting point is due to you because of your early acceptance of responsibility and guilty plea.

[19] The Crown submits that this offending was so serious that the minimum mandatory serving period of a third of the nominal sentence is insufficient to serve the primary purposes of deterrence and denunciation and protection of the community, and that a minimum sentence of at least 50 percent of the overall sentence should be imposed.

[20] The Crown accepts that it is warranted in the circumstances that there be a final order suppressing publication of your name or any details that could identify your victim or, indeed, the family. That is clearly appropriate and will follow.

[21] Mr Antunovic on your behalf accepts the seriousness of what happened and that the starting point identified by the Crown is appropriate in terms of the law. Mr Antunovic submits that the minimum period of imprisonment should be lower than 50 percent while accepting the inevitability at law that there would be a minimum period of imprisonment because, he submits, that might provide an incentive to you to maintain your resolve through commitment to the various treatment programmes and

provide some light at the end of the tunnel of imprisonment that you are about to formally enter as a sentenced prisoner.

[22] He submits that as well as the one-quarter discount from that starting point for your guilty plea and acceptance of responsibility, there should be credit for your earlier devotion as a worker and provider to your family, for your genuine remorse, and for your commitment to seek therapy for whatever drove this offending.

[23] With those submissions, I turn to the sentence itself.

[24] I draw guidance from the Court of Appeal case of R v AM.1 The approach I take is that the representative charges of rape are the lead charges, and the sentence starting and end points are constructed around these. The other sexual violations by unlawful sexual connection and the indecency are inbuilt into that overall sentence, although reflected in lesser concurrent sentences.

[25] The aggravating factors are firstly, the premeditation and planning that went into this. This was effectively a calculated, long-term exercise in grooming your young daughter through, firstly, indecency and touching that extended to full genital penetration with a finger, then full sexual intercourse, to the point that she became conditioned to the role of your sexual plaything, available to you on demand.

[26] The duration and her age are part of the seriousness of this. This started when she was 11, and it became clear that as she got older, she became aware of what was going on and concerned, bravely, that this nightmare should not be visited on her [siblings]. That was one of the elements that brought her submission and compliance to your demands. Further, you brought and enforced that submission by anger and removing privileges when she baulked at your demands.

[27] Then, there was the regularity; by around [year deleted] you were having full sex with her several times a week, running the gamut from digital, oral, and full sexual intercourse.

1 R v AM [2010] NZCA 114, [2010] 2 NZLR 750

[28] This encompassed, of course, a total and absolute breach of trust. The one male she should have been able to trust and rely on absolutely was continuously raping her for years. She was totally vulnerable and at your mercy. There was no way that she could escape you. You ran the household, and you were her father.

[29] And then, there is the effect on her. As well as enduring the acts themselves, she must bear the effects of that forever. Hopefully, and with the support of your family, her resilience will enable her to do that. But what is clear is that you have blighted her life. And as you say in your letter, what you did can never be undone.

[30] Looked at as a whole, this falls squarely into Band 4 of the sentencing bands in R v AM. I consider that a starting point of 18 years’ imprisonment is warranted.

[31] What I then do is I factor in the totality principle. It must be seen to be applied in order that the total criminality is not outweighed by the accumulating sum of its parts. That is effectively an intuitive rather than an arithmetical exercise, and I apply it by deducting one and a half years from that total, to a reference point of 16½ years.

[32] I then look at personal factors. There is nothing in your past that would up the ante. You have no convictions. On a personal level, I accept Mr Antunovic’s submission that as well as your early guilty pleas, you draw extra credit by the genuine remorse that you have displayed – it is palpable, it is real – and by your expression of commitment to undertake whatever therapeutic courses will be available.

[33] I recognise that while there was seven years of this offending going on beneath the cover of your ostensibly blameless presentation, there is recognition due to the fact that for many years before that, and dovetailing with it, you were also the hardworking and committed provider for your family.

[34] Those factors, along with the early guilty pleas, in my view, warrant a total discount of one-third from the reference point.

[35] I note in that regard that your early guilty pleas not only meant that your daughter was avoided the trauma of having to give evidence and relive this at a

criminal trial, but because those guilty pleas were early, she was not beset by what is inevitably the increasing and cruel anxiety that young victims endure at the prospect of having to give evidence before a roomful of strangers in a criminal jury trial. All of that is factored into that one-third discount.

[36] That reduces the effective sentence from a reference point of 16½ years to 11 years, which is allocated as follows.

[37] In respect of all of the charges of rape, 11 years’ imprisonment.

[38] On all of the sexual violation by unlawful sexual connection charges, five years’ imprisonment concurrent.

[39] And on the one charge of indecency, a sentence of two years concurrent.

[40] As far as the imposition of a minimum term of imprisonment is concerned, you effectively accept that is inevitable. The superior Courts have made it clear that a minimum period of imprisonment of around half the sentence is routine in cases of multiple counts of sexual offending against a child or children. In this case I find the primacy of the purposes of accountability for the harm to the victim, and denunciation and deterrence, not only of you but of any like-minded others, are heightened. That primacy is illustrated when one considers those last two rapes on successive days in [month deleted] after she had disclosed this offending to her mother, after you had been confronted, after you had apologised, and then when your wife was out of the house you took advantage of that fact and the vulnerability of this victim to visit this behaviour on her again. That showed at that time your apology was meaningless, your concern for your daughter was non-existent. That, alongside the offending itself, warrants a minimum period of imprisonment of 50 percent of the effective term.

[41] Finally, there is a final order for name suppression. It is an order for suppression of your name, the names of any of your family, and the suppression of any details that could identify your victim or your family. I need to emphasise, that order is solely to protect your victim’s identity and, of course, that of the extended family who have been caught up in all of this.

D R W Barry District Court Judge