Justice Mathew Downs later ordered substantial prison sentences for the trio – referred to in court documents as B, O and S – and declined their applications for permanent name suppression.
However, they still cannot be identified because they plan to appeal the suppression decision.
“I am far from persuaded of any remorse on your part,” the judge told O. “Your trial testimony was a series of arrogant lies and embellishments.”
All of the defendants, he noted, seem to have a concerning lack of insight into the harm they have caused.
‘Help’
During a weeks-long trial earlier this year, jurors were repeatedly shown CCTV footage from outside popular K Rd nightclub Family Bar and from a secluded industrial carpark in Avondale, where all three defendants were seen taking turns moving into a back seat with the victim.
The 19-year-old was likely unconscious when the trio violated her but, at a minimum, she was so obviously drunk that she could not have consented, prosecutors said.
The complainant has only patchy memories of the night but appeared to be in agony as she described to a police interviewer how she woke up to find a man she didn’t know in the process of intercourse, while others in the vehicle spoke to each other in a language she didn’t recognise.
All three men, aged 19 and 20 at the time of the offences, denied the rape charges, but for different reasons.
B, whose DNA was found on the inside crotch of the complainant’s clothes, said he engaged in consensual sexual activity with the woman but did not have penetrative sex. O, whose DNA was found during a gynaecological exam of the victim, admitted to having sex with her but claimed it was she who propositioned him.
Family Bar on Karangahape Rd. Photo / Jason Dorday
S admitted he was also in the van but said he was asleep in the back row throughout the incident. DNA testing for him, which he seemed to encourage during an interview with police, was inconclusive. But a witness told police that S had bragged later that morning about all three defendants having sex with a woman who was “too drunk”.
Jurors rejected their claims.
B and O were both found guilty of three counts of rape – one count referring to their own participation and two others of aiding or encouraging the others in the vehicle to do the same. S was found guilty of a single charge of raping the woman but acquitted of allegations that he encouraged his mates.
Shortly before getting into a van with the men, the victim had sent a text to her friends: “gilde”. It was a typo, she said, of the German word for “help”.
The defence had noted that “gilde” could be interpreted as “team” or “group”, but the victim said “gilde” was an archaic word in the German language that wasn’t in her vocabulary. The jury and the judge were also unconvinced.
Justice Downs said today that he believed the meaning was clearly “help”, with a typo being attributed to “intoxication, haste or fear”.
The victim sent another message to friends seeking help after the rapes. She was then driven by the trio to the Auckland Central hostel where she was staying.
“She was essentially dumped unceremoniously onto the footpath,” Justice Downs recounted.
‘Wanted to tear my skin off’
In a lengthy and harrowing victim impact statement today, the victim took issue with not only the defendants but the legal system and the media.
“It has always been my biggest dream to spend a year abroad and travel the world,” she explained. “Unfortunately, this dream did not unfold the way I had hoped … which is why we are here today.”
She still has flashbacks to waking up in the hospital after the rapes, she said, explaining that hospitals now “trigger extreme panic”. And the sense of having lost control still haunts her to this day.
“The moment I woke up in the hospital, it was already beyond my control whether I wanted to tell anyone or involve the police – they were already there and already knew,” she said. “From that moment on, I was forced to explain myself and could no longer decide against it.”
She considered not reporting the rape at all because she just wanted it to be over, but “police made that decision for me”, she said. She described hospital staff as kind and sensitive, but that didn’t stop the invasive sexual assault exam from being any less traumatic.
Judge Mathew Downs. Photo / Jason Oxenham
“I felt disgusted and hungover. My body had been touched and used against my will,” she explained. “People had seen me naked and abused my body. I felt ashamed, repulsive, and wanted to tear my own skin off.”
Reading “exaggerated and sensationalised” accounts of the rape in the media later deepened the trauma, she said.
“It is perverse. It is disgusting. And it takes away my control all over again,” she told the court. “Having to read things about myself that I cannot even say out loud because they are so terrible – that is a pain that cannot be put into words.”
The victim said she wanted the defendants named to help protect others in the community. But it’s unfair, she said, that she has the burden of making such a decision when the defence argues that doing so will ruin the lives of three young men.
“Even though I have suffered so much, I am put in a position where I am expected to feel sympathy for my rapists,” she said. “And I do not want to feel sympathy. That feeling destroys me. It tears me apart.”
The victim also recalled feeling physically ill when reading comments about the case online.
“I do not understand how, even today, there are people who accuse victims of making things up. How can you?” she said. “Why would I do that? Why would I put myself through a process that only destroys me further? I gain nothing from this.”
She concluded the statement, which took over an hour to read, by noting that the defendants still insist they have done nothing wrong.
“I hope that one day they will truly regret what they have done to me and my life – not because they are punished for it, but because they are genuinely sorry,” the victim said.
Minimum period declined
As he did immediately after the guilty verdicts were returned, Justice Downs reiterated today that the jury’s decisions were “entirely commensurate with the evidence”.
Each man faced up to 20 years’ imprisonment for the rape charges.
Crown prosecutors Fiona Culliney and Pip McNabb suggested a starting point of 14-and-a-half years for B and O, who each had three convictions, and 13-and-a-half years for S. That was too high, the judge concluded.
Crown prosecutor Fiona Culliney. Photo / Brett Phibbs
But the defence’s suggested starting points were too low, he also concluded, settling on 13 years for B and O and 11 years for S.
Justice Downs allowed 20% in combined reductions for the defendants’ youth, previous good character and rehabilitation prospects.
He declined substantial reductions due to their backgrounds, noting that they all grew up in good families, even though they may have trauma for other reasons that cannot be reported.
It resulted in end sentences of 10 years and five months for B and O and eight years and 10 months for S.
Prosecutors had also asked the judge to impose a minimum term of imprisonment of up to 50% for the defendants, who would otherwise be eligible to begin applying for parole after serving a third of their sentence.
The seriousness of the crimes, paired with their refusal to accept responsibility, does warrant a minimum period, the judge said. But he ultimately decided against one, noting that their youth would make such a sentence “crushing”.
‘I felt disgusting’
Just before announcing the sentences, Justice Downs repeated a lengthy passage from the victim impact statement that had been read at the start of the hearing.
“The entire court process was the worst thing I have ever had to endure,” he quoted the victim saying. “In court, I felt like I was the criminal …
“During the trial, I thought I was going to die. I felt as if I were standing naked in front of millions of people who did not believe me, judged me, saw me as a slut, and would eventually beat me …
“I felt disgusting.”
There’s an ongoing discussion in New Zealand and abroad, the judge said, about whether the adversarial trial system is sufficient to the needs of victims of sexual offending.
Justice Downs said he hopes the statement will add to that debate as to “whether the balance is appropriately struck”.
Craig Kapitan is an Auckland-based journalist covering courts and justice. He joined the Herald in 2021 and has reported on courts since 2002 in three newsrooms in the US and New Zealand.
Sign up to The Daily H, a free newsletter curated by our editors and delivered straight to your inbox every weekday.