A Waikato woman who had consensual sex with her brother then laid a false rape complaint with police.
That saw the woman's brother, aged in his 40s, spend seven months in custody, and her last year charged with attempting to pervert the course of justice and two charges of incest.
She was sentenced on those charges in the Hamilton District Court, narrowly avoiding jail time.
Her counsel, Mark Sturm, noted her presence and how traumatised she had been, not only from the offending, but awaiting the outcome of the court process.
"It's not something she is putting on today, she is a fragile person," he told Judge Crayton.
"Her history has been well set out by [psychologist] and she has had a tough life and it continues to be tough."
The judge soon after took a moment to set her at ease about her fate.
"You are not going to prison today," he told her. "That doesn't mean that this is not a serious offence ... but if it were not for the material I have in court today, it would be difficult for a judge to reach the point I have."
The woman, aged in her late 50s, laid a complaint to police that her brother had sexually violated her. He was charged with rape and put into custody.
At the time, he was 48, and "it must have been a traumatic experience for him", the judge said.
She was then interviewed by police on November 7, 2020, when she persisted with the allegation, despite knowing he had been put in custody.
On June 8 last year she was confronted by police and a week later, she confessed that the sex was consensual.
The court heard the two incidents happened between October 4 and November 4, 2020 when her brother was sharing a house with her.
The woman was recently out of and recovering from, a violent and abusive relationship.
She was at home and looking after a young grandchild who was asleep at the time.
The woman was showering and her brother at that point, "unsolicited and uninvited" came into the shower with her, naked.
She told him to get out and asked him why he was there.
He approached her and touched her sexually - she put on a dressing gown.
However, the brother grabbed her again which soon led to a sexual encounter.
After the incident he told her, "don't think of me as your brother, but your friend".
Judge Crayton found that although the sex was consensual, the woman was "going along with it rather than promoting or instigating" it.
Her culpability was high given the length of her lie as she "could at any step told the truth".
The impact on the victim had been "significant" and although he would have also been charged with incest, he wouldn't have had to spend any time in prison.
"It's the intention behind it. Here, the intention was to make a false allegation of the most serious type.
"Plainly you stood by that allegation for those seven months and it's something which clearly you felt no great emotion or need to rectify.
"Nobody could downplay the seriousness of a charge of rape either genuine or false," the judge told her.
"People need to know that if a false allegation is made and sustained, there will be significant sentences imposed."
However, he accepted the findings of a psychologist's report which detailed her upbringing and her witnessing her mother's abuse.
She herself then went on to go through a series of "unsupportive" relationships as an adult, culminating in the six-year one she had just been through.
"You were someone who had to grow up fast, who became a mother at a very young age.
"You effectively have had a large number of events occur that have left you traumatised in need of support and help."
She was also drinking to excess around the time of the incidents.
He could understand why she felt anger and shame after the incidents with her brother and said it appeared he played on her vulnerability.
He took a four-year starting point, and for the incest added a further five months.
Judge Crayton accepted that she was vulnerable at the time not only due to her recent break-up, but also her upbringing which her brother would have known about.
The judge then applied discounts for her guilty plea and the "inextricable" link between her history and what happened before arriving at a final endpoint of 12 months' home detention.
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 support@safetotalk.nz
• 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.
-By Belinda Feek
Open Justice multimedia journalist
