WARNING: This story details rape and may be upsetting.

A young man who raped an intoxicated sleeping woman at a party while his pregnant partner was in another room and then lied about it to police, has had his prison sentence reduced by one year on appeal.

Fabian Olindo Arroyo-Munoz was found guilty by a Hamilton jury of two charges of raping the young woman at a party in September 2019.

He was sentenced to seven years in jail but Arroyo-Munoz appealed his conviction and sentence to the Court of Appeal, arguing the judge erred when summing up to the jury.

The Court of Appeal decision, dated May 11, stated the victim became drunk at the party and was helped to a bedroom by her friends, where she fell asleep.

The jury heard the woman, who has name suppression, was woken when someone at the party opened the bedroom door and saw two people having sex.

The complainant realised there was a man in the bedroom with her on the bed. He got up and closed the door, returned to the bed and either began or continued having sex with her.

“The complainant thought it was her boyfriend. She could not be sure whether the man had been having sex with her before the door opened because she was asleep.”

The sex was brief, after which the man left. The woman went out of the bedroom, saw the man and realised it wasn’t her boyfriend.

It was then she believed she had been raped and she told other partygoers “someone did something” to her.

The victim called the police, who arrived at 6am and questioned Arroyo-Munoz. He denied he raped the woman and said he had sex with another woman at the party.

But when DNA tests proved there had been sexual contact between the victim and Arroyo-Munoz, he told the jury it was consensual, and that the woman had seen him in the hallway and hugged and kissed him before leading him to the bedroom to have sex.

He claimed he did not continue the sex after someone opened the door and only lied because his pregnant girlfriend was also at the party and he didn’t want her to find out he’d had sex with two other women.

In his appeal, Arroyo-Munoz said the judicial directions unfairly restricted the jury’s ability to make findings of fact; erroneously directed that they must decide reasonable belief in consent on the basis of whether they believed the complainant or not; removed that defence from the jury; and invited the jury to not only find the appellant was lying, but also to convict him of the charges.

But Court of Appeal Justices Forrest Miller, Mark Woolford and Helen Cull disagreed, saying the District Court judge’s comments did not amount to misdirection and the conviction stood.

However, they agreed with Arroyo-Munoz that his offending was opportunistic, rather than moderately pre-meditated as determined by the judge when he sentenced the defendant.

They agreed with Arroyo-Munoz’s counsel that there were no features of pre-meditation such as grooming, plying the victim with drugs and alcohol, or other predatory behaviour.

“The circumstances as described by the judge do not, in our view, amount to premeditation.

“The judge appears to have reached this conclusion largely on the basis that the appellant ejaculated into his underwear, which the judge said reflected the fact that he knew that his best chance of escaping detection was to avoid leaving any DNA trace behind.

“However, it is equally plausible that the appellant panicked and focused on his girlfriend and their relationship. His girlfriend was pregnant ... he did not wish to make the complainant pregnant as well.

“In any event, an attempt to avoid detection after the fact does not mean that the offending was premeditated. A hasty ill-thought-through attempt to avoid detection (if that was the case) does not reflect premeditation.”

The starting point should have been seven years and the discount for youth, previous good character apart, from minor driving convictions, positive influence on his community, the impact on his young child and partner, and his poor upbringing should have amounted to a total discount of 15 per cent instead of 12.

This brought the end sentence to six years’ imprisonment instead of seven.

-Natalie Akoorie, Open Justice

Natalie Akoorie is the Open Justice deputy editor, based in Waikato and covering crime and justice nationally. Natalie first joined the Herald in 2011 and has been a journalist in New Zealand and overseas for 27 years covering health, social issues, local government, and the regions.

SEXUAL HARM

Where to get help:
If it's an emergency and you feel that you or someone else is at risk, call 111.
If you've ever experienced sexual assault or abuse and need to talk to someone, contact Safe to Talk confidentially, any time 24/7:
• Call 0800 044 334
• Text 4334
• Email [email protected]
• For more info or to web chat visit safetotalk.nz
Alternatively contact your local police station - click here for a list.
If you have been sexually assaulted, remember it's not your fault.