R v Ennis [2018] NZDC 6929 (11 April 2018)

Last Updated: 13 May 2019

EDITORIAL NOTE: CHANGES MADE TO THIS JUDGMENT APPEAR IN [SQUARE BRACKETS]

NOTE: PUBLICATION OFNAME(S), ADDRESS(ES), OCCUPATION(S) OR IDENTIFYING PARTICULARS, OF COMPLAINANT(S) PROHIBITED BY S 203 OF THE CRIMINAL PROCEDURE ACT 2011.

IN THE DISTRICT COURT AT AUCKLAND

CRI-2016-044-000746 THREE STRIKES WARNING

[2018] NZDC 6929

THE QUEEN

v

JOSEPH JAMES ENNIS

Hearing:	11 April 2018
Appearances:	F Culliney for the Crown G Anderson for the Defendant
Judgment:	11 April 2018

NOTES OF JUDGE R G RONAYNE ON SENTENCING

[1] I need first to give you a strike warning. Given your conviction for rape you are now subject to the three strikes law. I am now going to give you a warning of the consequences of another serious violence conviction. You will also be given a written notice outlining these consequences which lists the serious violent offences.

[2] If you are convicted of any serious violent offences, other than murder, committed after this warning and if a Judge imposes a sentence of imprisonment, then you will serve that sentence without parole or early release. If you are convicted of murder committed after this warning, then you must be sentenced to life imprisonment. That will be served without parole unless it would be manifestly unjust. In that event the Judge must sentence you to a minimum term of imprisonment.

R v ENNIS [2018] NZDC 6929 [11 April 2018]

[3] You are here for sentence because you have been found guilty of a charge of rape by jury.

[4] The facts are these. On the night of [date deleted] 2013, a party was held at an Auckland address. It was attended by, as far as the evidence shows, 20 to 30 people. It seems a number planned to drink and stay the night. You attended the party. [The victim] also attended. She was [under 18 years of age]. She was an inexperienced naïve drinker and drank too much at the party.

[5] However, she did so thinking that it was a safe place to drink. She became heavily intoxicated and you knew that. During the evening, you saw her talking to a young man called [Jim]. In the early hours of the next morning as the party wound down, [the victim] was seen by a number of partygoers to be heavily intoxicated, slurring her words and unable to walk properly. You also saw this.

[6] You then obtained a mattress, a pillow and a thin blanket and you set up a bed of sorts in the laundry. The laundry was in a relatively isolated part of the house, a house with which you were familiar.

[7] In your first interview with the police, when you were being interviewed as a witness rather than as a suspect, you described [the victim] as slumped over or words to that effect. I am quite satisfied on the evidence that you could see very clearly indeed that she was heavily intoxicated and needing to sleep.

[8] You then escorted [the victim] to the laundry. You let her slump onto the bed and you left that room for a short time. I am satisfied that your intention was to wait until she had completely either fallen asleep or lost consciousness. She did just that.

[9] It is noteworthy that your own view of intoxication is that a person cannot form memories of events when so drunk. You were wrong but, importantly, that was your view.

[10] With that perception, you then returned to the laundry and forcibly removed [the victim]’s shorts, breaking a button in the process.

[11] She was coming in and out of consciousness and had no motor skills. All of that was, on my view of the evidence, obvious to you.

[12] There was no positive act by [the victim] by word or conduct to suggest that she consented to anything you did. The fact of the matter is she was entirely incapable of consenting to your actions. The law reflects the facts in this case. She was quite obviously unconscious or semi-unconscious.

[13] You then forced yourself on her having intercourse with her. She could not resist. She was incapable of doing so. You finished using her in this way, then you got up and left to get yourself another drink.

[14] During your act of intercourse, she became sufficiently aware that someone was having intercourse with her, that she asked who it was. You said to her that it was [Jim].

[15] Although it is not entirely clear how long after, but it cannot have been very long at all, [the victim] became distraught and her upset became apparent to others. She was approached in the laundry and immediately complained that she had been raped by [Jim].

[16] When this commotion became obvious to others in the lounge, [Jim] was confronted with an accusation of rape. Naturally he denied it. You, despite no one actually accusing you, immediately sought to distance yourself by saying you had been watching a movie. You were, in effect, even then, setting up your alibi.

[17] Medical samples for scientific analysis were taken from [the victim] but you of course were not to know that until later.

[18] [Jim] was interviewed by the police as a suspect. That cannot have been a pleasant experience.

[19] You were interviewed as a witness within about five days of the party. You took that opportunity to describe how heavily intoxicated [the victim] was and you simply helped her to bed then left. You also took that opportunity to mention to the

police that you had seen [Jim] with her that night. I am quite satisfied that this was a continuation of your cynical and devious attempt to have [Jim] blamed for the rape. You were quite content to avoid your responsibilities and potentially have an innocent man blamed for rape. In your witness interview, you made complete denial of any sexual activity with [the victim].

[20] Your undoing came with the results of scientific analysis of vaginal swabs which simultaneously excluded [Jim] and implicated you.

[21] You were then interviewed as a suspect and proceeded to come up with an entirely new set of lies. You inevitably had to admit intercourse but claimed it was consensual, inventing a story about [the victim] kissing you and taking an active part in the intercourse, something she was quite incapable of doing. In this second story of yours you downplayed her level of intoxication.

[22] You gave evidence in your trial endeavouring to maintain your fictional account. Your complete inability to honestly explain your lies in your first interview was patent, manifest and excruciating to listen to.

[23] I am quite satisfied that not only was there no realistic basis to suggest that any reasonable sober person would have believed [the victim] was consenting, you did not in fact hold such a belief. In other words, you had intercourse forcibly with her knowing perfectly well that she was not consenting. You lied to her as to who was raping her because you knew exactly what crime you were committing at the time. There was no unreasonable mistake on your part. Your offending was premeditated and deliberate.

[24] You then wandered back to the party to have a drink and maintain your lie.

[25] Thus, it is obvious to me that any remorse you might have today or have expressed to anyone else is entirely situational and self-centred.

[26] This Court has heard [the victim] read her victim impact statement. It would be presumptuous of me to add anything to what she has eloquently and painfully had to say.

[27] A pre-sentence report has been prepared by a probation officer. You just continue to maintain your lie. You take no responsibility for what you have done. You told the probation officer more or less the same lies you told to the Court. You told the probation officer that the two of you sat on the bed and exchanged words. You could not remember what was said. You told the probation officer that you and the victim of your rape started kissing which led to sexual intercourse. You told the probation officer that you thought the sex was consensual. You are absolutely and utterly failing to accept any responsibility for what you have done. So, under the heading “Remorse and offers to make amends” in the report, where you are described as very apologetic and remorseful for your actions, you are quoted by the officer writing the report as saying, “If it was truly how she remembers it then I am truly sorry.” That is conditional and worthless as an apology.

[28] Written submissions have been filed by the Crown and by your lawyer. The Crown submits that the Court should adopt a starting point of eight years. Mr Anderson, on your behalf, submits that I should adopt a starting point of six years. Primarily it seems on the basis of one culpability factor of victim vulnerability and because the planning and premeditation is difficult to assess.

[29] There is very much in your case, Mr Ennis, a need to hold you accountable, a need to promote in you a sense of responsibility and to denounce and deter this sort of behaviour. I need, of course, to take into account the interests of the victim, [the victim]. I obviously have to assess the gravity of your offending and be as consistent as I can in my approach to your sentencing with other cases.

[30] In my view, the aggravating features of your offending are these. The first and most painful aspect to deal with is the effect that your offending has had on [the victim]. Additionally to what she has said, plainly no protection was used for this rape risking pregnancy and infection. I will say it again, I cannot and will not attempt to

add to what [the victim] has said about the awful effects that your rape of her has had on her and no doubt others.

[31] The second aggravating factor is that there was an abuse of trust. You deliberately placed yourself in the position of trust. You were in effect the good Samaritan as the older male helping a heavily intoxicated [under 18-year-old] to find a safe place to sleep off her drink. I am sure you were happy to be seen by others in this false light. Certainly no one else seemed to have any cause for concern. This factor is present to a moderate degree.

[32] The next aggravating factor is the vulnerability of the victim. She was not only very intoxicated but she was only [under 18 years of age] and you placed her in a somewhat isolated room in order to have sex with her. Most responsible people seeing a

[under 18 year old] in her state would think more about placing her in the recovery position and keeping a close eye on her rather than raping her. This factor is present to a high degree.

[33] Lastly, you planned your offending carefully in my view. You set up the room and you escorted the victim to the room. Then you left and you waited for her to become, in effect, unconscious thinking, as you did, that in that state she was incapable of forming any memories. This factor is present to a moderately high degree.

[34] Any discount that I might give you for your relative youth at the time has to be only modest. You were almost 21 years old at the time. As to any discount for prior good character, none is available. I accept that you have committed another [offence] but, for fair trial reasons, you were not convicted. Because of delay you were deprived of the opportunity to be dealt with in the Youth Court. So the matter did not proceed. I accepted the evidence of the other victim.

[35] In my view, there are three distinct culpability factors present, one moderate in degree, one moderately high and one high in degree. Thus, your offending falls to be dealt with under rape band 2. I come to that view bearing in mind the exemplar cases

referred to in R v AM1 in both bands 1 and 2, and bearing in mind also that the bands overlap at the top of band 1 and the bottom of band 2 and thus, I conclude that an eight year starting point is appropriate.

[36] Given your other sexual offending, your actual age at the time of this offending and your age now, your uncertain prospects of real rehabilitation, I give you a four month discount to reflect your youth. You are sentenced to seven years and eight months’ prison.

R G Ronayne District Court Judge

1 R v AM [2010] NZCA 114; [2010] 2 NZLR 750