Justices Mark Wooford, Forrie Miller and Helen Cull reserved their decision.
Pervan went on trial twice for the allegations. The first trial, which involved two accusers, was aborted because of Covid-19 complications that led to a depleted jury. The re-trial was reduced to one complainant after the other woman, who was overseas, was unavailable to testify.
Pervan and the woman he was convicted of having raped had known each other for years through the close-knit Catholic community, Judge Jelas noted at the sentencing.
“During 2017 the victim undertook a year-long programme for young adults seeking to deepen their understanding of the Catholic religion at the Catholic Discipleship College (CDC),” the judge said, according to sentencing notes obtained by the Herald. “You were one of the leaders at CDC. During that year you developed a friendship with the victim.
“During that same year you also began an intimate relationship with one of the other students at CDC. I note that it was against the rules for leaders of CDC to form personal intimate relationships with students.”
Pervan and his accuser had consensual sexual contact on numerous occasions, but there were also multiple times when it was not consensual, the woman testified.
The rape conviction stemmed from an incident in February 2019, during which Pervan refused repeatedly to leave the woman’s home and was eventually allowed to stay on the couch, the court was told. She told him to stop when he instead got in bed with her, she testified, describing how her words “literally meant nothing” to him.
“...It didn’t matter what I did, like he wasn’t gonna listen,” the woman testified. “And so that was one of the times, yeah, when he raped me.”
The second charge involved an incident two months later in Rotorua, as he stayed for the weekend on a couch at a flat belonging to the victim’s father. He was described as “quite forceful” as he tried to initiate sex.
“I was telling him to stop but he wasn’t listening to anything I was saying - just kept going, kept going, kept going,” the woman testified. “We were there for at least five minutes fighting back and forward.”
The woman said she was able eventually to lock herself in the bathroom.
“When I came out he was really mad, and I didn’t know why he was mad,” the woman explained. “I was kinda trying to talk to him and, like, ask why he was mad and what was going on. And eventually he just got really upset again and he broke down and he told me he was mad at himself because he knew that what he’d done was wrong and he knew that he’d made that same mistake again, even though he promised me that wasn’t going to happen again.”
The jury rejected Pervan’s insistence that the first incident was consensual and that he did not persist on the second occasion when the woman told him to stop.
The same jury was unable to reach a consensus on three other rape charges and acquitted Pervan of an additional charge of assault with intent to commit sexual violation.
“I consider the jury’s hung verdicts were indicators that they found the victim’s evidence to be by in large credible and reliable, but without more evidence, they could not be sure of those offences,” Judge Jelas said at sentencing.
During the Court of Appeal hearing this week, Cross argued it was inappropriate for Judge Jelas to have accepted all of the evidence as credible and reliable when most of the charges didn’t result in convictions.
But that is “quite a difficult submission” given Judge Jelas sat through the entire trial, Court of Appeal Justice Miller responded.
“The judge has clearly formed quite a dim view of him, which she is entitled to do,” he said.
Cross also argued that the trial judge incorrectly assessed the gravity of the offending. The judge mistakenly said Pervan “continued to violate [the victim] despite her express requests to stop”, Cross said. The evidence was that the woman said no before the intercourse but not during it, she argued.
But Crown prosecutor Matthew Nathan disagreed, describing the sentence Pervan received as “consistent with her clear evidence on what occurred” and with the jury’s finding.
“This is not about misreading social cues,” he said. “This is a circumstance in which the appellant repeatedly ignored clear statements...
“The ultimate sentence cannot be found ... to be manifestly excessive.”
Both sides agreed, however, that a minor tweak to the sentence is in order because Judge Jelas promised a 20 per cent discount off her original starting point of seven years because of various mitigating factors. The end sentence of five years and nine months equated to a 17 per cent reduction - roughly two months longer.
But no reduction of the sentence beyond that small amount was warranted, Nathan argued, describing the trial judge’s 20 per cent discount as “essentially beyond reproach”.
