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Home / New Zealand

Pair appeal conviction for trying to put spoon up friend's bottom, filming it

Melissa Nightingale
By Melissa Nightingale
Senior Reporter, NZ Herald - Wellington·NZ Herald·
1 Feb, 2021 09:51 PM4 mins to read

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The pair are appealing their convictions and sentences. Photo / File

The pair are appealing their convictions and sentences. Photo / File

Two people who filmed themselves try to put a plastic spoon up their sleeping friend's anus are appealing their convictions and sentences for indecent assault.

The offending, passed off by the pair as a prank among friends, happened following a drunken night out in 2019 while the victim was asleep in the back of a car.

According to a summary of facts, the victim had consumed an unknown amount of alcohol and cannabis during the night and was "severely intoxicated".

As he lay unconscious in the back seat of his friend's vehicle, the 28-year-old male offender began filming with his phone, and called out to check if the victim was awake.

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When no response came, the 21-year-old female offender leaned over from the front seat and tried to put the plastic spoon into the victim's anus.

She continued trying to insert the spoon as the pair laughed and joked, before eventually removing it.

She then put a scoop of soft serve ice cream down the back of the victim's pants, at which point he woke up and asked what they were doing, the summary said.

The offenders then suggested he have a spoonful of his ice cream, and he passed out again.

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The pair, who have interim name suppression, were sentenced in Palmerston North last year by Judge Jonathan Krebs, who described the offending as "simply unacceptable".

"This was not a prank, this bordered on attempted sexual violation," he said at the time.

The woman was charged with indecent assault, while the man was charged with inciting indecent assault.

Judge Krebs sentenced them to four weeks of community detention and ordered each of them to pay $1000 reparation to the victim.

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The matter has now reached the High Court at Wellington, where the duo are appealing the convictions and sentences.

While neither had name suppression at sentencing, their lawyers today made last-minute applications for interim name suppression, citing the presence of media and the effect prior publication has had on the pair since sentencing.

Justice Jillian Mallon granted the interim order so the matter could be argued further at a later date.

The man's lawyer, Sandy Baigent, said there were a "number of errors" that he was sentenced on, including an issue around whether or not he sent the video of the offending to the victim.

He pleaded guilty to the summary of facts, which stated he sent the video to victim himself. However, he now denies that aspect of the summary, and Baigent said the judge shouldn't have treated the sending of the video as an aggravating feature of the offending.

She also argued the court didn't have enough information to assess the relationship context of the offending - that it happened between friends who remained friendly for some time after the incident.

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"This is how these people interacted with each other," she said.

Lucie Scott, lawyer for the woman, said the judge assessed the offending as more serious than it actually was.

"This is not a situation where they have premeditated and set upon someone who is unconscious to get some type of sexual gratification ... it's just simply not of that high gravity that his honour has placed it," she said.

"I know it can be distasteful to say an indecent assault is not as serious as another, but we are in that situation. It was not to humiliate him, it was not to be aroused by what they are doing."

She said her client had been rejected for numerous jobs after revealing she had a conviction, and despite now having a part-time role in a bakery she was unable to plan for "a brighter future".

Crown lawyer Briar Charmley said today's appeal was attempt to have another shot at getting a discharge without conviction by filing new evidence that could have been put before the court at the time of sentencing.

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She said some of the new evidence seemed to be trying to show the victim was not as traumatised as he claimed to be in his victim impact statement.

"It's not for the appellants to say the victim was more or less traumatised than what he claims to be."

Justice Mallon has reserved her decision.

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