R v Rakena [2017] NZDC 3266 (17 February 2017)

Last Updated: 3 May 2017

EDITORIAL NOTE: NAMES AND/OR DETAILS IN THIS JUDGMENT HAVE BEEN ANONYMISED.

IN THE DISTRICT COURT AT HAMILTON

CRI-2016-019-001338 [2017] NZDC 3266

THE QUEEN

v

_{LUKE RAKENA}

Hearing:	17 February 2017
Appearances:	R Mann for the Crown K Holden for the Defendant
Judgment:	17 February 2017

_{NOTES OF JUDGE M L S F BURNETT ON SENTENCING}

[1] Mr Rakena you are 33 years of age and you are here today for sentence, having been found guilty at trial on four counts of rape, representative counts, both anal rape and genital rape at [street name deleted]. Those are representative charges and they each carry a maximum penalty of 20 years’ imprisonment. Then there is sexual violation by unlawful sexual connection, which also carries a maximum penalty of 20 years’ imprisonment, and one of attempt to commit sexual violation, which carries a maximum penalty of 10 years’ imprisonment.

[2] The facts before the jury are those set in paragraphs 2 through to 12 in Crown submissions. I do not propose to cover those, but if the members of your family were to hear those in detail, they would be shocked at the level of the offending

_{against the young child who was your step-daughter.}

R v LUKE RAKENA [2017] NZDC 3266 [17 February 2017]

[3] The pre-sentence report records that you maintain your innocence and this, of course, is additionally damming to all the victims who include, of course, your family with whom you have got two biological children and your former wife as well as your stepdaughter. They are the people who are left with the destruction of your conduct which includes attempted suicide, high risk of self-harm, of course the psychological damage, the inability to trust, to have stable emotional relationships, loss of ability to focus on everyday things like school, all of those things that lead to good outcomes for young lives. Those things are lost to your victim and as she says, it is a life sentence for her and she will never be free from this. It divides families, as is evident from today. The mother of your step-daughter is also partially blamed for your conduct by her daughter because her mother did not protect her from your actions. These are all ongoing damage that you inflicted on the family that you have left behind.

[4] You have got good support from your sibling family here today and they no doubt believe in your innocence. The jury did not. The jury accepted the evidence of the young complainant, the young victim, and you say, “Well maybe this was all part of the jealousy from your ex-partner or for money.” That quite frankly is just a dangerous and facile explanation for what has been placed before the Court. What prompts a young child to have to go through what she did, both in Court and before coming to Court, before strangers? The young child is not motivated by money and no ex-partner could have persuaded her child to have fabricated the evidence that was given before Court and the jury did not go along with any such notion either.

[5] Your explanations as to motivation are worrying because when it comes to consideration of a minimum period of imprisonment for all of the reasons set out in s 86(2) they are relevant to an assessment that a minimum period of imprisonment is appropriate. The pre-sentence report assesses you at being at a high risk of harm to others but at this point a low risk of re-offending given the limited information to hand and the absence of accurate psychological risk assessment. The Court cannot be satisfied given the circumstances presented at sentencing that you do not present an ongoing risk in the future.

[6] As to the victim’s age when you commenced offending against her, from the evidence that I accept which includes the plain reading of the evidential interview and evidence, it commenced when your victim was between five and six and continued through to when she was approximately nine.

[7] The aggravating features of the offending include vulnerability of the victim, her age obviously, she was entirely unable to prevent your actions and her mother left most days leaving you in charge of the young victim. The victim was entirely unable to prevent your conduct and therefore given her age and the circumstances she was extremely vulnerable. The impact of your offending is on the entire family. There is high risk of suicide and attempted suicide. As to the scale of the offending you returned to the family home at [street name deleted] after a period in Australian and you simply took up the offending again. It was persistent and repetitive, included anal rape, which relates to the degree of violation, and the length of time over which you offended in respect of the victim.

[8] Ms Holden on your behalf says that premeditation is not at a high level. There was no alcohol involved. There was no sexual grooming. Indeed there did not have to be. She was a young child who was simply left in your care as you were her step-father. You were quite able to isolate the victim from her younger half-sisters. You simply sent the younger half-sisters away to another area of the house if they were awake, requiring the victim to stay with you. That is all that is required with young children, that and removing the victim from her bedroom and taking her into your bedroom and into your bed and covering you both with blankets or into the lounge where her younger half-siblings were not present. It does not require alcohol. It just requires you taking that everyday action of isolating a very young child.

[9] As to planning and premeditation, I do not accept is at the lower end, particularly when you returned to the family after a period of being away and continued your offending.

[10] There have been full submissions both in writing and orally about where the offending falls within the relevant bands set out in R v AM1. There were repeated rapes of a young family member. I am satisfied that the offending falls within band 4 which is a band of between 16 and 20 years and I am of the view that a starting point within band 4 would be appropriate.

[11] I have heard both from Ms Holden as well as having read the written submissions and I do not accept a lower starting point. A starting point in my view would be between 16 and 18 years. I accept it is towards the more moderate end of band 4 and the starting point is 16 years and 10 months with concurrent sentences. As for a minimum period of imprisonment, I do accept that it is orthodox in cases of serious sexual offending, and given your explanations as to the fabrication by the young complainant for what has been serious sexual offending, I am of the view that for the reasons set out in s 86(2) - both holding you accountable for the harm done to the victim, denouncing your conduct, deterring you from similar offending and even the protection from you in the future - that a minimum period of 50 percent sentence of imprisonment is appropriate. I do not have anything else to add and you may stand down.

M L S F Burnett

_{District Court Judge}

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