KEY POINTS:
The victim of an historic pack rape in Mount Maunganui has applied to the High Court in Wellington for a judicial review of the decision to let one of her attackers out on parole.
Peter McNamara was jailed for seven years on August 5, 2005 for his part
in the 1989 rape of the victim, known as Ms A, after a jury found him guilty of her rape and abduction.
At the time of McNamara's conviction the judge said it "was a pack rape in the worst sense" and said the men used their positions of influence in the community to "manipulate" the victim to keep quiet.
After being declined parole three times in 2007, McNamara was released on parole on January 22 this year.
Ms A's lawyer Nikki Pender told the High Court in Wellington today that the Parole Board had "erred in law" in releasing McNamara and asked for a judicial review to recommend the board's order for his parole be quashed and for the board to reconsider its decision.
In her submissions to the court Ms Pender said the board "failed to consider or give due weight" to relevant factors.
The first of these was that the sentencing judge had to sentence McNamara at 1989 sentencing levels and was not able to impose a minimum period of imprisonment (MPI) because MPI orders were not introduced until 1993.
Ms Pender said that had McNamara been sentenced for the attack in 1989 he would have been forced to serve at least two-thirds of his sentence.
Because he was sentenced after new legislation this did not apply.
"It would be repugnant if the law were to permit these men to receive significant credit just because they managed to `get away with it' for 16 years," Ms Pender said.
She said his release sent out a "very unsatisfactory message socially".
McNamara's failure to show any remorse for his actions, or empathy for the victim, should also have been taken into account, she said.
"The board itself struggled with the issue of personal deterrence and whether it should take into account Peter McNamara's continued failure to admit wrongdoing or demonstrate any empathy towards Ms A."
Ms Pender said the ongoing symptoms suffered by Ms A and the re-victimisation since the sentencing should also have been taken into account by the board.
"The purpose of Ms A's submissions to the board was not simply to restate the harm caused by the rape, but to draw attention to other incidents...In particular, the conduct of Peter McNamara's appeals in the Court of Appeal and Supreme Court.
"And the fact that two of his friends fabricated evidence in a misguided attempt to help him overturn the convictions."
Rene Mangnus and Paul Turney were found guilty on September 18, 2007 of attempting to pervert the course of justice and sentenced to 12 months imprisonment each.
The charges relate to false affidavits made by the two in support of McNamara.
"The board erred in not treating his willingness to gamble with Ms A's wellbeing as relevant to whether it was consistent with community safety to release him on parole."
Ms Pender said the board did not address restorative justice in its release decision.
As McNamara continued to deny any wrong doing restorative justice was not "realistically possible', she said.
Austin Powell, acting for the New Zealand Parole Board, said in his submissions to the court McNamara had benefited from changes in sentencing and parole legislation because he had "escaped detection and prosecution for so long".
"He has a shorter non-parole period than he would have had if he had been convicted and sentenced shortly after he committed the offence.
"(McNamara) was granted release on parole and so his custodial period is shorter that it would have been, but he remains subject to the sentence, and therefore the possibility of recall, for longer than he would have under the earlier Act."
Mr Powell's submission said the relevance of victims submissions to the board's decision was limited to "the extent that they weigh on the paramount consideration of the safety of the community".
He said this was the case in Australia, the United Kingdom and Canada.
"The board may impose special conditions on parole that provide for the reasonable concerns of victims."
Appearing for McNamara David Jones QC said submissions made on behalf of Ms A today were "extremely arbitrary" and said the case had very limited general application because it was historical and affected by legislation changes between 1989 and 2005.
"(Ms A) is disgruntled, she is unhappy with the release of McNamara...and that being the case the decision has been determined as wrong (in her opinion)," he said.
The parole board must make its decision based on material available at the time, he said.
"(Ms A) attributes anything to do with this whole matter to Mr McNamara and lays it at his door...All ills cannot be laid at McNamara's door."
He said victims' concerns were considered at sentencing and were a "muted" concern at a parole board level.
Mr Jones will continue his submissions to the court tomorrow.
- NZPA
