R v Demetriades

[2013] NZHC 964

ORDER PROHIBITING PUBLICATION OF NAME, ADDRESS, OCCUPATION OR IDENTIFYING PARTICULARS OF VICTIM PURSUANT TO S 202 CRIMINAL PROCEDURE ACT 2011.

IN THE HIGH COURT OF NEW ZEALAND TIMARU REGISTRY

CRI 2011-076-1970 [2013] NZHC 964

REGINA

v

JADEN KARL DEMETRIADES JAMIE ALAN SULLIVAN SLADE JOHN EVERETT

(Heard at Christchurch) Counsel:         A R and A M McRae for Crown

A S Greig for Mr Sullivan
T W Fournier for Mr Everett and Mr Demetriades

Judgment:      3 May 2013

SENTENCING REMARKS OF PANCKHURST J

[1]      Jaden Demetriades, Jamie Sullivan and Slade Everett this is an awkward sentencing from my perspective.   You three were tried but acquitted of rape. However,  the jury found  you  guilty of having  sexual  intercourse with  a  young woman, a girl really under 16 years of age.  The fact of you having intercourse with her was not in dispute, nor was her age.   You therefore faced a reverse onus to

establish the only defence available to this charge and you failed to do so.

R V DEMETRIADES SULLIVAN AND EVERETT HC TIM CRI 2011-076-1970 [3 May 2013]

[2]      For reasons which will become apparent this gives rise to a situation in which there are real difficulties for me in determining the factual basis upon which you should be sentenced.  I have also heard conflicting submissions from your counsel on the one hand, and Crown counsel on the other, as to the appropriate approach.

[3]      The Crown case was advanced effectively through the complainant alone. The girl, aged 15 years and 5 months at the relevant time, knew all three of you and indeed she had been your girlfriend, Mr Sullivan.  That was an intimate relationship, but one which ended some weeks before the relevant night of 16 October 2011.

[4]      That night the complainant, to her discredit, left home against her parents’ wishes.  She got a lift into town.  Once there she began drinking and in the early hours of the morning she went to the Sullivan home where there was a birthday party underway for Mr Sullivan senior.   Later still, the complainant travelled by taxi to High Street.  She maintains that she was taken to the clubrooms of the Road Knights gang.   It has never been suggested that you were members of that group, but you were occasional visitors to the clubrooms. The complainant said that she drank some more there, smoked some cannabis after which she felt “fuzzy”.  Her ability to walk unassisted was affected.

[5]      She then described being taken to a house, number 44, a few doors away, this being the home of Mr Everett senior. At this stage, in the early hours of the morning she said there was initially another female present and that this young girl was propositioned, verbally abused and then left the address. Attention then turned to the complainant.  On her account there were five men present, you three, another young man named she thinks ‘Jessie’, who had come from the clubrooms, and an older man aged about 40, also from the clubrooms.  She gave evidence that she was threatened and that you Mr Sullivan pushed her onto the couch, removed her clothing and had intercourse with her.  This she said occurred, while the other men were still in the same room, at times laughing while intercourse occurred.  Next she said that you Mr Demetriades had intercourse, followed by you Mr Everett and then the other two. As she put it, the five “took turns”.

[6]      The complainant then described being taken to a bedroom in the house and being put to bed.   By this point it must have been very late, at least 5.00 am, probably later.  She said she slept for several hours, awoke to find she was alone in the house. A short time later she sent a number of text messages and in the result she was eventually uplifted from the address by a girlfriend and the friend’s mother.  By this point it was early afternoon.

[7]      A complaint was made, she was interviewed and you three were spoken to by the police some time later. You declined to comment, as was your right.

[8]      However, at trial all three of you gave evidence, and for the first time a markedly different and essentially consistent account was told to the jury.  You said the complainant was not taken to the clubrooms, rather direct to number 44.  You Jamie Sullivan were not initially with the group because you remained a little longer at your father’s party and joined them later.  You maintain that there were only ever three men at number 44.  You say that the complainant had been drinking, but that she was not drunk to the point where she was unduly vulnerable.  Indeed, on your account, she was dancing provocatively, during the course of which she removed clothing to be topless.   The three of  you then described acts of an oral nature performed on you, followed by intercourse with all three of you.  It was then said that Mr Demetriades departed and went home.

[9]      The complainant slept with you Mr Everett in your bed, while Mr Sullivan slept in the same room but on a couch.  If that was not enough, your evidence also extended  to  details  of  an  act  of  intercourse  with  you  Mr Everett  before  the complainant left the house that day, and an oral act upon you Mr Sullivan.

[10]     In short, on the one hand the complainant described a gang rape involving five men, committed at a time when she was intoxicated and defenceless.  You three on the other hand describe an entirely consensual encounter involving multiple acts of both an oral nature and sexual intercourse as well.

[11]     As I have already acknowledged, I regarded the acquittals on the rape counts as unsurprising.    During cross-examination the complainant’s evidence was discredited in a number of important respects.  This included a denial that she had had intercourse with you Mr Everett at a party in late August, early September, when there was independent evidence from a neighbour that, to my mind, established that such an event had indeed occurred.  She also denied ever having been to number 44 before the night in question, but she was contradicted emphatically in relation to this by a number of witnesses, some of whom were friends or at least acquaintances of hers.  In the result her credibility was so affected that in my view the jury were right to find you not guilty of rape.

[12]     Unlawful sexual intercourse, however, was an entirely different matter.   It was undisputed that intercourse had occurred and that the complainant was only 15 years and five months at the time.  This meant that your only answer to the charge was the statutory defence where you had to prove, on balance, that you took reasonable steps to ascertain her age, believed she was at least 16 years of age and that she did in fact consent to the acts of intercourse.   In cross-examination you Mr Sullivan admitted that you knew her age.  You said that during your friendship, your relationship with her, you had asked her that because it was as you put it a

‘standard question’, and she said she was underage.  Mr Demetriades and Mr Everett maintained the assertion that you believed her to be 16 and that you had a reasonable basis for doing so. The jury rejected that defence.

[13]     In these circumstances, the Crown submits that the pattern of the verdicts should be interpreted in this way.  Firstly, that you were acquitted of rape because the jury would have doubted whether  a reasonable belief in consent  existed.   And, secondly, that in relation to unlawful sexual intercourse that the jury considered that this was not consensual, or established to be consensual on the balance of probabilities, by you.

[14]     I doubt the first proposition.  In my view the jury in all probability concluded they could not act on the complainant’s account, and exclude your version of events, and hence were left in reasonable doubt as to consent.  That, I think, explains the rape acquittals.

[15]     Turning to unlawful sexual intercourse, however, I consider it unlikely that the jury accepted your version of the sexual activity at face value, and rejected what the complainant said happened at number 44 out of hand.   As already discussed during the course of submissions there are aspects of the evidence which support this viewpoint.

[16]     At 4.30 am you Mr Sullivan sent a text message to Mr Demetriades which said ‘come out son’.  This in my view is consistent with needing somebody to come out of the clubrooms to let you into what is a fortified area, not to your arrival at number 44.

[17]     When examined the complainant had a minor internal injury which the doctor said caused her pain and discomfort on examination.  I find it inconceivable that she engaged in consensual sexual intercourse shortly before leaving the house, earlier that day.  She was distressed when uplifted by a friend and friend’s mother, and also walking gingerly as she got into the car, as if in discomfort.  She also left items of clothing, her bra and a belt in the house, where they were located subsequently by the  Police.    When  one  looks  at  these  indicators,  to  my mind,  they  are  simply inconsistent with an entirely consensual encounter of the kind you three described in evidence.

[18]     It is my responsibility to interpret the verdicts as best I can, and then to isolate the facts which are relevant to your sentencing.  That is further complicated in this case by the interaction between the statutory defence which you raised and s 24 of the Sentencing Act 2002.   Under the latter, aggravating features must be established  beyond  reasonable  doubt  before  they  may  be  taken  into  account  in

sentencing.  That your sexual intercourse with the complainant was non-consensual would obviously be an aggravating feature in relation to this offence of unlawful sexual intercourse.

[19]     But what concerns me is whether, as an aggravating feature, it had to be proved beyond reasonable doubt despite the fact that before the jury there was an onus on you to establish consent on the balance of probabilities.

[20]     There is  no  case in  point.    Mr McRae identified the case of  Mathieson decided in 20021  which is similar in that an accused was acquitted of rape, but convicted  of  unlawful  sexual  intercourse.     The  trial  Judge  in  that  instance nonetheless found for the purpose of sentencing that intercourse was non-consensual. His finding was upheld.  The Court of Appeal judgment did not confront s 24, and the facts of the case are so different to this one that I do not find it helpful from that

point of view.

[21]     In the circumstances I propose to proceed as follows.  As I have said I am satisfied that the rape verdicts were reached because the jury were not sure that there was an absence of consent.  The complainant’s credibility was too bruised to enable them to reach that conclusion to the required standard.  I am also satisfied that your reliance  on  the  statutory  defence,  most  likely  failed  in  relation  to  age.    You Mr Sullivan admitted you knew she was underage, and although Mr Demetriades and Mr Everett maintained that you believed on reasonable grounds she was 16, I think the reality was the jury thought you simply did not care.

[22]     In these circumstances, consent, or rather its absence, was not the driving factor in relation to the guilty verdicts.   This means that the fact, the absence of consent, was not an express or implied element of the verdicts.  I therefore propose to regard consent as an aggravating feature, relevant to sentencing which must be proved beyond reasonable doubt by the prosecution. This approach may, if anything, be favourable to the three of you.  Approaching matters on this basis I cannot be

satisfied that sexual intercourse was proved by the Crown to be non-consensual.

1      R v Mathieson CA 209/02, 18 September 2002.

[23]     But that said, I still regard this as a serious case of its kind.  I am in no doubt the complainant was grossly affected by alcohol, perhaps drugs, and to the point where she was vulnerable throughout this evening.   In that state, she was taken advantage of by three of you, in turn.  You treated her as an object for your sexual gratification, not as a young woman only 15 years of age who was entirely defenceless as well.  She was left with a minor internal injury, but emotional scarring as well, as is conveyed in the victim impact statement.  On the other hand, I accept as has been advanced by your counsel, that she was not a naive and innocent 15 year old, rather she was sexually active.  It is also the case that there had been previous sexual activity with you Mr Sullivan, and Mr Everett, and perhaps with Mr Demetriades as well.

[24]     What then is the appropriate starting point and approach to your sentencing? The Crown  argued that  I should start with a  sentence of two  and  a half  years imprisonment, before considering other factors.  That submission was made on the basis I could conclude intercourse was proved beyond reasonable doubt to have been non-consensual.   Defence counsel on the other hand, contended that community based sentences, or at most a 12 month imprisonment starting point was appropriate.

[25]    I have been referred to numerous previous cases concerning this crime, including two Court of Appeal cases decided recently, since the penalty for this offence was increased, and which contain surveys of other cases of this nature.2

None of them, to my mind, are close to this one.

[26]     I also have the benefit of a good deal of information about you.  It is striking that there are few, if any, points of distinction to be drawn between the three of you in relation to your backgrounds and current situations.  Age is an important factor in sentencing, particularly in relation to this offence.  You Mr Demetriades were almost

18 at the time, you Mr Sullivan 17 and a half, and Mr Everett you had turned 18 a couple of months earlier.   None of you had any previous convictions at the time, although Mr Sullivan you were convicted on an excess breadth alcohol charge a short time after the night in question, and this had occurred in July 2011. All three of

you have been in steady employment, in particular throughout the lengthy period you

2      R v Mi’ileki [2008] NZCA 513 and R v Johnson [2010] NZCA 168.

have been on  bail awaiting trial  and sentence.   You all enjoy parental support, because I am aware that members of your families were present in the Court in Timaru and again today.   I have as well, in your case Mr Everett, this impressive reference from a former teacher of yours, and indications in the pre-sentence reports that all of you are reasonable young men.

[27]     I struggle  to  reconcile  what  I have  read  about  you  in  preparing  for  the sentencing today with your conduct on this night.   You Mr Demetriades have belatedly written an apology to the complainant.  I hope she is able to read it in the way that you intend and put this behind her and, as you say, have a good future.  The reports also suggest that there is nothing to indicate a likelihood that you will offend again.  I hope they are right.

[28]     I  have  reflected  on  the  appropriate  sentencing  response  at  some  length. Could you stand up please.

[29]     I have come to the conclusion that  you  can  receive a community based sentence.  You will each be sentenced to five months community detention on the statutory conditions and at the approved addresses identified in the pre-sentence material.  During that five months you will be subject to a curfew from 10.00 pm to

5.00 am daily.    Because this sentence requires electronic monitoring, its commencement is postponed until Monday when those arrangements can be implemented.   Nonetheless, you remain subject to a curfew over this weekend imposed by me as part of the sentencing.  I also direct that you are to undertake 160 hours community work, about which you will be contacted by a probation officer.  I had considered whether you should also pay a financial penalty in the form of payment of reparation for emotional harm to the complainant.  She does not want to receive money from you, and for that reason this form of sentence is not appropriate.

[30]     I take it you are aware of the three strike legislation which was introduced recently.  Mr McRae has pointed out that this crime represents the first strike, so far as you are concerned.  I am therefore required to warn you of that, that you are now in that situation where the first strike will be on your records.  Should you offend again in relation to prescribed offences, you will be at risk, eventually, of more

serious penalties than would otherwise be the case.  Do you understand that?  The warning will also be communicated to you in writing so that you can digest and understand it.

[31]     You may stand down.

Solicitors:

A R McRae:  [e-mail]

Q Hix:  [e-mail]

A S Greig:  [e-mail]

T W Fournier:  [e-mail]