Director of Public Prosecutions v Tuivaga (a pseudonym)
[2024] VCC 1041
•11 July 2024
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| KEVUELI TUIVAGA (A PSEUDONYM) |
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JUDGE: | HIS HONOUR JUDGE DOYLE | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 8 July 2024 | |
DATE OF SENTENCE: | 11 July 2024 | |
CASE MAY BE CITED AS: | DPP v Tuivaga (a pseudonym) | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 1041 | |
REASONS FOR SENTENCE
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Subject:Criminal Law
Catchwords: Plea of guilty – rape - standard sentence offence - belief was not reasonable - Opportunistic – disinhibited by alcohol -deportation - no prior convictions - reasonably good prospects of rehabilitation.
Legislation Cited: Sentencing Act 1991 (Vic)
Cases Cited:DPP v Mokhtari [2020] VSCA 16 [63]; R v Mason [2001] VSCA 62 [8]
Sentence: 5 years and 10 months imprisonment, non-parole period of 3 years and 8 months.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms B. Goding | Office of Public Prosecutions |
| For the Accused | Mr R. Chaudhuri | Tyler Tipping and Woods |
HIS HONOUR:
1Kevueli Tuivaga,[1] you have pleaded guilty to one charge of rape, for which the maximum penalty is 25 years' imprisonment. Rape is also a category 1 offence, which means that I must impose a sentence of imprisonment. Furthermore, rape is a standard sentence offence. The standard sentence is 10 years.
[1] A pseudonym.
2The facts of this matter are described in detail in the prosecution opening which was tendered as an exhibit on the plea and read out by the prosecutor. I will summarise those facts.
3At the time of the offending in this case you were 42 years of age. You were born in January 1979. You were living in Victoria Street in Moe. The victim in this matter is Ms Irene Luveni.[2] She was 30 years old.
[2] A pseudonym.
4You and the victim are both Fijian nationals. You were in Australia on three-year working visas. You were both working at an abattoir in Moe. You both obtained your employment through Wales Work Force, which provides accommodation for its workers in Moe.
5The victim lived with three other workers, including Ms Siwatibau.[3] She and Ms Siwatibau shared a bedroom. Each had a single bed.
[3] A pseudonym.
6On 2 September 2022 the victim went back to her accommodation after she finished work. Siwatibau was there as well, but the other residents had left for the weekend. During the evening Siwatibau called her friend Mr Tupou[4] and invited him over for a drink. The victim was asleep in her bed.
[4] A pseudonym.
7Mr Tuivaga, you and two others also went to the victim's accommodation. The other two were Mr Pyne[5] and Mr Naupoto.[6] The victim knew all three of you.
[5] A pseudonym.
[6] A pseudonym.
8You and the other men drank alcohol and listened to music in the lounge room. You had also been drinking before you arrived at the victim's accommodation. In his statement Mr Naupoto describes you as 'clearly drunk'. Mr Pyne in his statement refers to your group drinking that evening and says at the victim's place you were drinking cask wine. The victim remained in bed whilst you were drinking.
9You asked about her and Ms Siwatibau told you she was sleeping. You then said you wanted to go to sleep, and Ms Siwatibau said you could use her bed.
10You and Ms Siwatibau went into the bedroom. The victim was lying in her bed.
11You asked the victim if you could lie down next to her. She agreed. You then started to push your body against her, which made her feel awkward. She told you to stop, but you said, 'It's okay, I won't do anything to you.'
12Siwatibau was still in the room at that time. The victim asked her to stay. You told Siwatibau to leave, which she did.
13You told the victim you had been at a nightclub in Traralgon, and you had also been drinking at Tupou’s place. The victim tried to roll away from you, but you were pushing against her, cuddling her from behind.
14You started touching her face with your hand. You rolled her onto her back and started to kiss her face and mouth. She told you to stop, but you persisted. You lifted her pyjama top and started touching her breasts with your hands and mouth. She repeatedly told you to stop, but you told her to shut up and continued touching her breasts. You removed your pants, exposing your erect penis. You put your hand over her mouth. You rolled her onto her back and lay on top of her and put your penis in her vagina without her consent. The prosecution case and the basis of the resolution in this matter is that, whilst you had a belief the complainant was freely agreeing to sexual intercourse, that belief was not reasonable.
15The victim was in pain, and she was crying and shaking as you penetrated her vagina. Your hand remained over her mouth, which prevented her calling out for help.
16During the incident, Mr Pyne opened the bedroom door. You whispered to the victim to be quiet. Mr Pyne recalled entering the bedroom at around 2 am and seeing you and the victim in the bed. He said it was dark and no one said anything, so he closed the door and left.
17The victim got out of the bed, put her pants on and went to the bathroom. She locked herself in the bathroom and began to cry.
18The victim stayed in the bathroom for some time before returning to her bedroom. You were still in the bed. She then went to a different bedroom.
19Mr Tupou entered the bedroom and saw the victim crying. He asked the victim what happened and eventually the victim told him that you had 'fucked her'. Siwatibau was also present when the victim said this.
20Tupou confronted you and asked you why you had done this to the victim. You did not respond. You were told to leave.
21On 4 September 2022 the victim wanted to report the matter to the police but was told by Tupou and another Fijian person that she should not do so, as this would cause shame on their families in Fiji.
22On 5 and 6 September 2022 the victim went to work. She did not tell anyone about the incident. Then on 7 September 2022 she saw her general practitioner in Moe and told the doctor what had happened.
23On 8 September 2022 she told her manager at work and then police were informed. The victim went to the police station and made a statement.
24On 8 September 2022 she made a pretext call to you. You did not deny sexual penetration took place, but you asserted consent.
25You were arrested and interviewed on that same day. Again, in the interview you did not dispute penetration but gave a version of consensual sexual intercourse.
26You were remanded in custody, and you have remained in custody since you were arrested.
27The victim was cross-examined at a contested committal and again in October last year at a s198B hearing. The matter was listed for trial in the April circuit at the Latrobe Valley. The matter would not have been reached in that circuit and there was also difficulty obtaining an interpreter for the trial. However, when the matter was called on for mention I was told that resolution discussions were taking place and ultimately the matter did resolve.
28Whilst your guilty plea cannot be characterised as an early guilty plea, I am satisfied it indicates a willingness to facilitate the course of justice and that the utilitarian value of the plea is significant. The trial would have been adjourned to a later circuit and the victim would have been denied closure for a further period. You have spared the prosecution and the police the use of the resources required to run a trial. Importantly, you have spared the witnesses, particularly the victim, the experience of having to give evidence in a trial. Your guilty plea remains a significant mitigating factor in this case.
29The victim made a victim impact statement which was tendered as an exhibit. She says she had some ongoing soreness from the incident. She has been affected emotionally, in that she becomes angry and upset, and she feels like crying every day when she is alone. She feels unworthy and is suffering depression and anxiety. She has recurring memories of the incident. She says that she feels ashamed and feels she has brought shame to her family. While she feels this way, she should not, the shame is yours, Mr Tuivaga. She misses the people she worked with. She left the employment because of this incident. It has also affected her socially.
30The impact of your offending has been substantial and enduring on the victim. This is an important matter which informs just punishment for the crime you have committed.
Gravity of the offence
31Obviously, any offence of rape is a serious crime, as reflected by the maximum penalty and the standard sentence.
32In the case of Mason v The Queen referred to in the prosecution submissions, the Court of Appeal said:
The crime of rape is an intensely personal crime which, for sentencing purposes, cannot be divorced from its effects on the victim. But the effects include not only those which flow from the physical invasion of the victim's person and security, but also those which flow from the violation of the more intangible intellectual properties of the victim's rights and freedoms.[7]
[7] R v Mason [2001] VSCA 62 [8]
33In the case of Mokhtari the court said:
The very act of rape is inherently serious, simply by virtue of the invasion of the victim's bodily integrity without consent. It is, quite simply, an act of violence, whether or not accompanied by other violent conduct. The violation is physical, emotional and psychological. It follows that, aggravating features apart, all acts of non-consensual penetration are objectively serious, irrespective of the form and the extent of the penetration. [8]
[8] DPP v Mokhtari [2020] VSCA 16 [63].
34The prosecution submitted this was a serious example of rape for the following reasons:
· the victim was vulnerable;
· she was asleep in her own bed;
· you persisted with the rape in the face of the victim crying and shaking and, I might add, saying 'stop';
· you put your hand over the victim's mouth to prevent her from calling for help;
· you did not wear a condom, exposing the victim to the risk of sexually transmitted diseases or infections or pregnancy.
35The prosecution conceded that offence was opportunistic rather than planned.
36Your counsel, Mr Chaudhuri, submitted that:
·this was a lower-end example of a rape offence because it was a 'one off' and was not prolonged, lasting only minutes;
·the complainant sustained no injuries;
·there were no threats of harm or overt violence;
·the two of you knew each other;
·you were affected by alcohol;
·the offending was opportunistic rather than planned.
37The duration of the offending is not, in my opinion, of great significance in assessing the gravity of this offence. The penetration in this case was not momentary and the offence lasted until Mr Pyne came to the door and interrupted your conduct. The absence of threats or additional violence, which would have been aggravating features, is not a mitigating factor of itself. Further, I do not see how the fact that you knew the victim is in any way mitigating in these circumstances. There is no suggestion of any pre-existing relationship or attraction between the two of you that might explain but not excuse your conduct. She had not been socialising with you. This was not a case where you mistook some sort of signal from her. That cannot be suggested. She was asleep in her bed, entitled to feel safe and be safe, and you took advantage of her for sexual gratification.
38Moreover, the fact that you were affected by alcohol at the time of the offending is not a mitigating factor.
39I accept the offending was opportunistic in nature. The basis of the resolution in this case is that you had a belief, but not a reasonable belief, that the complainant was consenting. In the face of the complainant's resistance and your actions, that belief can only be explained by the alcohol you had consumed before the incident. Otherwise, her lack of consent would have been crystal clear to you. On a trial, of course, the effects of alcohol would not have been relevant to the reasonableness of your belief. The prosecutor in her submissions described your belief as somewhat delusional and there is some truth to that.
40Nonetheless, having regard to the agreed settlement of this matter, the concession by the prosecution that you held a belief but not a reasonable belief is relevant to the assessment of your moral culpability.
41Even allowing for this, having regard to the serious features of this offence as submitted by the prosecution, I regard your culpability for the offence in this case as significant.
42I do not accept this was a low-end example of rape. I accept the submission that this was a serious offence of rape.
Standard sentence
43As I have already noted, the standard sentence for rape is 10 years' imprisonment. The standard sentence applies to an offence in the middle range of seriousness based only on its objective factors. The standard sentence is just one of the many matters to which I must have regard in deciding the sentence in this case. It is a legislative guidepost or yardstick. In deciding the sentence in this matter, I have had regard to the standard sentence. As will be seen, the sentence I will impose is less than the sentence.
Current sentencing practices
44In considering current sentencing practices for a standard sentence offence, I am restricted to sentences impose under the standard sentencing provisions. I have had regard to the cases referred to in the prosecution table of cases. There are of course significant differences between most of those cases and this one. No two cases are ever quite the same. Current sentencing practices are a guide but not a controlling factor in the deciding the appropriate sentence.
Personal circumstances
45Your personal circumstances are described in the psychological report of Ms Sandra Cokorilo, which was tendered as an exhibit on the plea. You were born in Fiji. You were the youngest child of six. You have a close relationship with your siblings. You had a positive relationship with your parents, who stayed together until your mother died in 2002. Your father remarried and you have a positive relationship with your stepmother. Your father died in 2008 of cancer.
46You left the family home at the age of 14 to live with your brother for a year. You then went to a boarding school for the next three years before returning to live with your parents. You finished school at the end of Year 11. You have completed some short courses in hospitality and tourism. You have worked as a farmer, truck driver, bartender, and waiter. You have been employed, on your estimate, for about 40 per cent of the time since you left school. You found it difficult to find consistent employment in Fiji, which was presumably the reason you came to Australia in April 2022 for work.
47You have had one significant relationship in your life, with your wife. You have been together for 24 years. You have three daughters, aged 22, 17 and 8, and a son aged 14. You speak to her every week over the phone, and she remains supportive of you. You have found it difficult to tell your children about your charges and you have deferred those conversations until after you are sentenced. When you are released from custody you intend to return to Fiji to live with your family. You have no real choice, as you will not have a visa allowing you to remain in Australia. Deportation is all but inevitable in your case.
48You told Ms Cokorilo, the psychologist who assessed you, that your drinking increased significantly after you arrived in Australia. You struggled here with the demands of your employment and being away from your family. You used drinking as a coping mechanism.
49You have no history of mental illness.
50You were assessed by Ms Cokorilo as having a low risk for general reoffending and a low risk of sexual recidivism. Your counsel submitted that this offence should be seen as something of an aberration, given your history.
51Ms Cokorilo diagnosed you as experiencing an adjustment disorder with mixed disturbance of emotions and conduct after you arrived in Australia. She also says you are currently suffering from a generalised anxiety disorder.
52During the period you have been remanded in custody you have had no visits, but you have maintained contact with your family over the phone. I accept that your time in custody in this country has been and will be a lonely, isolated experience for you and that this, your first period of incarceration, will weigh heavily on you.
53I give some weight to the fact that whilst you have been remanded there were some restrictions in prison at the tail end of the COVID pandemic.
54Mr Chaudhuri submitted your guilty plea and the things you said to Ms Cokorillo about the impact of your offending on the victim indicate profound empathy and insight and are consistent with very substantial remorse. I accept that you have insight, and you are remorseful, but, on the other hand, you asserted consent and you ran a committal hearing where the victim was cross-examined. The plea of guilty came at a late stage of the proceedings. Whilst I give weight to the remorse that you have shown, I am not satisfied that it is as profound as suggested by your counsel in his submissions.
55In assessing your prospects of rehabilitation, I take into account that the offending in this case was opportunistic and occurred in circumstances where you were disinhibited by alcohol. Furthermore, you do not have any prior convictions and in Fiji you have a family who remain supportive of you.
56In my opinion, given the matters to which I have referred, you have reasonably good prospects of rehabilitation. The reality is you will be returned to Fiji when you are released. The evidence suggests that your alcohol abuse, a factor in the offence, was a product of issues you had adapting to living and working in Australia. In Fiji you will be in a familiar environment, supported by your family. These should be protective factors against further offending.
57In respect of deportation, this is not a case where you were settled in Australia or had any expectation of remaining here. On the material before me you would have returned to Fiji and your family at the end of your three-year working stint but for this offending. Therefore, the risk of deportation is not a factor which mitigates the sentence in this case by elevating the burden of your imprisonment other than I accept you will have some anxiety about whether you will be released at the end of the non-parole period that I will fix, which is legitimate.
58In this matter I must give weight to general deterrence, specific deterrence, just punishment and denunciation of this serious offending through the sentence that I impose. I must also attempt to facilitate as best I can your rehabilitation. That is difficult in circumstances where inevitably you will be returned to Fiji upon your release. I am not entitled to have regard to whether you will be released at the end of your non-parole period and then deported, and I do not know whether that will happen. I have therefore fixed a non-parole period in accordance with ordinary principles, which in my view is consistent with the object gravity of the offence but which mitigates punishment in favour of rehabilitation.
Sentence
59Mr Tuivaga, the sentence I impose in this matter is as follows.
60For the offence of rape, you are sentenced to five years and 10 months' imprisonment.
61I fix a non-parole period of three years and eight months.
62I indicate that but for your plea of guilty the sentence I would have imposed is eight years' imprisonment with a minimum non-parole period of five years and nine months.
63I allow 672 days of pre‑sentence detention are to be deducted administratively from the sentence that I have imposed pursuant to s18 of the Sentencing Act.
64There are no other orders needed?
65MS GODING: No orders.
66HIS HONOUR: No, all right. Do you want the link left open for a moment?
67MR CHAUDHURI: Yes, I'd be grateful for that.
68HIS HONOUR: All right, I'll do that. All right, thanks to both counsel for your assistance in this matter.
69MR CHAUDHURI: As the court pleases.
70HIS HONOUR: We'll adjourn till tomorrow.
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