The two men would have suffered hardship had their names been made public, judge says.
Warning: Contains evidence of a sexual nature which some readers may find upsetting
Two Auckland men were lambasted by a judge today for “absolutely abhorrent” sexually degrading treatment of underage girls, but they were also allowed to serve sentences of home detention and to keep their names permanently secret.
The men, both 27, were 16 and 17 when the illegal acts occurred a decade ago. They were the subject of a large-scale, high-profile police investigation soon after but not arrested until 2020 - after the first victim, who was 14 at the time of the offending, told police that she was ready to cooperate after years of counselling.
A second victim, also 14 at the time of offending, came forward soon after the first.
Neither victim attended today’s hearing in Auckland District Court but their written victim impact statements were read aloud for them.
The first victim said the offending - and the fact it was recorded and shared with the defendants’ friends - resulted in her mental health spiralling downward. Both women said they still have flashbacks and need medication to deal with the trauma they endured.
“This will affect me for the rest of my life,” she said.
The second victim described the defendants as “predators” who manipulated her into their “vile sexual fantasy” then continued to victimise her by dragging out the criminal justice process for as long as they could.
“I feel as though evil goes unpunished and society has discarded me,” she said, adding that she strongly opposed name suppression so that others can be protected.
Today’s hearing, before Judge John Bergseng, came almost exactly a year after the men pleaded guilty to sexual connection with a young person aged 12-16, which carries a maximum punishment of 10 years’ imprisonment.
“The defendants believed the girls were consenting at the time,” states the agreed summary of facts for the case. “However, looking back with the maturity and experience achieved because of their own maturity they now realise that the girls, given their age, intoxication and the circumstances, can be seen as not being capable of providing informed consent to the sexual conduct.”
The first victim said she met one of the defendants at the school they both attended. Despite being aware of her age, he invited her to a garage that had been converted into a bedroom. The co-defendant and another teen were also there and joined in the sex acts.
All participants were intoxicated as the sexual acts were repeated over several months in late 2012 and early 2013. Most are too graphic to print.
“On one occasion, she was unable to retrieve her shoes from [one of the defendants] who told her he’d give her the shoe if she gave him a ‘blowjob’,” court documents state. “She left the address dressed but without her shoes and wearing her socks only.”
Judge Bergseng’s voice momentarily quavered as he recited the details today, seemingly on the verge of tears.
The victim said she was unaware the degrading sex acts had been filmed until peers told her they had seen the video.
Both men pleaded guilty to a single representative charge encompassing all of the encounters with the first victim.
Only one of the men pleaded guilty to a second charge involving the second victim, who said she met the defendant at an Auckland park during school holidays and went with him to the converted garage bedroom intending to lose her virginity.
However, she told police that she was not wanting to engage in a threesome or anal sex, which is what occurred.
Defence lawyer Ron Mansfield KC, who represented the man charged with victimising only the first girl, argued today that while the details might be shocking to an adult it wasn’t illegal except for the age of the girls.
“The reality is group sexual activity or conduct does occur among young people,” he said. “When she went around to the address, she knew they’d be ... getting drunk and ... she’d be engaging in sexual activity with more than one high school student.”
Lawyer Annabel Cresswell, who represented the other defendant, acknowledged that the summary of facts “makes for some difficult and uncomfortable reading”. But she urged the judge to consider that it happened before the #MeToo movement.
“He is being sentenced in a vastly different landscape,” she said, adding that “the public understanding of consent and toxic masculinity” is now much higher.
Both lawyers sought discharges without conviction for their clients as well as permanent name suppression. Mansfield argued that without it “his future will be put at risk in a significant way”. There would be a risk of vigilante justice and difficulties with getting jobs in the future, he said.
Cresswell said her client had suffered death threats, abuse and harassment for a decade now because of the case and suffered post-traumatic stress disorder as a result.
They pointed out repeatedly that had the defendants been charged when they were still young, the case might have stayed in Youth Court, which has much stricter and more ingrained suppression rules.
Crown prosecutor Lily Nunweek argued that the case would have been likely elevated to the district court regardless of their ages.
She said it was a “mischaracterisation” by the defence to downplay the offending as “sexual experimentation by high schoolers”. This was serious sexual offending against vulnerable young girls who were plied with alcohol and abused by multiple offenders.
“It’s hard to imagine anything more dehumanising, degrading,” she said, arguing against name suppression and discharge without conviction.
“This is not a case where open justice should yield.”
Judge Bergseng began his sentencing remarks by saying it is impossible to think they wouldn’t have known what they were doing was wrong “whether you are a 16-year-old or not”.
Their actions, he said, were pre-meditated and designed to cause “maximum humiliation” of the young girls. But he said it’s also important to make the distinction that neither man has been charged with rape.
“I’m not persuaded there are high levels of remorse on the part of either of you,” he added. “I find your remorse is more focused on what you yourselves have gone through. There is very little remorse in terms of the effects of your offending on the victims.
“The harm to the victims can only be described as profound.”
He declined the applications for discharge without conviction, sentencing the defendant with two victims to serve 11 months’ home detention and the defendant with one victim to serve seven months’ home detention.
However, the two meet the threshold of “extreme hardship” regarding name suppression, he said.
As a result of the name suppression ruling, aspects of the case cannot be reported.
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.
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