R v Finau (No 2)
[2020] ACTSC 193
•15 July 2020
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Finau (No 2) |
Citation: | [2020] ACTSC 193 |
Hearing Date: | 15 July 2020 |
DecisionDate: | 15 July 2020 |
Before: | Murrell CJ |
Decision: | The offender is sentenced to two years and six months’ imprisonment, suspended after nine months on entering into a good behaviour order. |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – Sexual intercourse without consent – “Date rape” |
Legislation Cited: | Crimes (Sentencing) Act 2005 (ACT) ss 7, 33 Crimes Act 1900 (ACT) s 54(1) |
Cases Cited: | R v Buda-Kaa [2013] ACTCA 46 R v Finau [2020] ACTSC 155 Wyper v The Queen; R v Wyper [2017] ACTCA 59 |
Parties: | The Queen (Crown) Ropati Dominic Finau (Offender) |
Representation: | Counsel P Dixon (Crown) M Jones (Offender) |
| Solicitors ACT Director of Public Prosecutions (Crown) Kamy Saeedi Law (Offender) | |
File Number: | SCC 245 of 2019 |
MURRELL CJ
On 16 June 2020, I found the offender guilty of the offence that, on 24 November 2018, he engaged in sexual intercourse without consent, contrary to s 54(1) of the Crimes Act 1900 (ACT). The maximum penalty is 12 years' imprisonment.
The offender has been in custody since 16 June 2020.
Facts
The facts are set out in R v Finau [2020] ACTSC 155.
In brief, on 23 November 2019, the offender and the complainant met in Civic. They were work colleagues but only had a passing work acquaintance. Together, they attended several nightclub venues in Civic.
They shared a taxi from Civic to the complainant's Belconnen residence. The complainant occupied a one-bedroom apartment but used it as a studio apartment. She slept on a sofa bed in the living room of the apartment.
When the taxi arrived at the complainant's apartment, she proposed that the driver would continue to the offender's residence, but the offender paid the taxi driver and said that he would order another. He said that he needed a glass of water, he was feeling sick, and he wanted to use the toilet. It appeared to the complainant that he was quite intoxicated. She agreed to the offender coming upstairs and calling a taxi from her unit.
The complainant changed into sleeping attire. When she returned to the living room/bedroom, the offender was lying on the sofa bed in his underwear. She asked him to dress and handed his pants to him. He began to put his pants on but then directed her attention to the fact that he had an erection. He pulled her down to kiss her, but she resisted, reiterating the need to call a taxi or uber and saying that she just wanted to go to bed.
The offender grabbed the complainant, pushed her over, and pinned her down to the sofa. He kicked her tracksuit pants down to her feet and attempted to prise her legs open while she resisted. She repeatedly said words to the effect of, “Get off me. This is not happening. Stop it” and “No, stop, I don't want to have sex. I don't want you to do this”, but he ignored her. She resisted, pushing against his windpipe and slapping him.
The accused became angry and said, “I want this, I'm here”. When she objected, he covered her mouth with his hand, and she had difficulty breathing. The offender positioned himself to insert his penis into her vagina. The complainant hit him in the face. He struck her cheekbone and she froze. The offender engaged in penile-vaginal penetration for “less than a minute”. The complainant was in pain. The offender did not use a condom.
The intercourse was interrupted when the complainant's cat jumped onto the sofa bed. The offender said that he was terrified of cats. The sex ceased and the offender pulled up his pants.
The complainant estimated that the event took less than 10 minutes.
The complainant called a taxi for the offender. She went downstairs to wait with him, and he left.
When she returned to her apartment, the complainant took photos of the injuries to her left upper cheekbone and took photographs of her left shoulder, which felt sore.
Victim impact
After the offence, the complainant felt like a different person. She lost her faith and “ran away from God”. She felt unworthy of respect from the church and others. She lost interest in her appearance, lost self-confidence and self-respect, and began to feel as though her only identity was as a sexual object. She pushed loved ones away and adopted a cynical and negative view of life.
The complainant continues to feel scared. She felt unsafe in her apartment and, as a consequence, moved from it. She fears that smiling at a stranger could lead to a further assault, and that if she refuses an advance, her refusal will not be accepted. In public, she is scared for other women and what they may be going through. She constantly asks herself whether women are safe with their male companions.
Objective seriousness
The following factors render the offence objectively serious:
(a)It was committed in the complainant's own home where she was entitled to feel safe;
(b)It was associated with physical violence; the offender pushed the complainant onto the sofa and pinned her down, covered her mouth and struck her face once, causing visible injury;
(c)The offender actually knew that the complainant did not consent. She told him that she did not want to engage in sexual intercourse, and then once it started, she repeatedly told him to stop;
(d)The intercourse was penile-vaginal intercourse, although the type of intercourse is not definitive of objective seriousness; and
(e)The offender did not use a condom.
On the other hand, the incident was relatively brief. The penetration lasted less than a minute and the whole incident lasted less than 10 minutes.
There is no evidence of premeditation in the sense that the offender deliberately came up to the unit with the intention of engaging in an offence. Rather, it would seem that his intention was to come up to the unit or invite himself up to the unit, perhaps in the hope of having sexual intercourse with consent, and then when that did not occur, he proceeded to sexual intercourse without consent.
I do not accept the Crown's submission that the offence involved a breach of trust. There was no relevant relationship of trust or authority between the complainant and the offender.
Subjective features
At the time of the offences, the offender was 24 years old. He is now 26 years old.
The offender has no prior criminal record and he is a person of otherwise impeccable character.
He is one of three children. He is of Samoan background and is proud of his Samoan heritage. He was raised in a modest but stable, loving and supportive household. He remains very close to his family, which is extensive. He resides with his father, younger sister, cousin, and brother. Currently, his mother lives in Samoa and cares for her mother, who is unwell.
After completing Year 12 and undertaking a Certificate IV in youth work, the offender gained employment in customer service roles. His most recent employment was terminated when he was remanded in custody for this matter. Work colleagues who provided references described him as a hardworking, respectful and friendly colleague who was prepared to go out of his way to help others. One described him as a “quiet achiever”. Through his employment, the offender was able to provide significant financial support to his family both in Australia and in Samoa.
The offender is an occasional social drinker who said that, at most, he consumes five standard drinks per night. He also said that he had not consumed any alcohol since the matter came before the Court in February 2020.
The offender has a long connection with the Queanbeyan Whites Rugby Union Football Club. He plays socially. He is also engaged in fundraising by the club for various Queanbeyan charities. He supports and mentors Pacific Islander players who have come to Canberra where they have limited family or social support.
The offender is a devout Christian and an active member of the Samoan Methodist Church, where he volunteers with fundraising and by supporting the church youth group. In the past, he has been a Sunday school teacher and he has led prayers. Through the church, he is involved in presenting a dance performance at the Canberra Multicultural Festival.
Character referees describe the offender as caring, generous, well-mannered and trustworthy, and a person of considerable integrity. They said that he was introverted, gentle and not prone to aggression or violence. They have observed him to be protective and respectful towards women. He supports his first cousin who is severely intellectually and physically disabled with cerebral palsy. He has provided both emotional and practical support to her family.
The offender, in return, enjoys enormous support from the Samoan, rugby, and general Queanbeyan communities. The large attendance at Court for these sentencing proceedings is evidence of that.
The offender is fit and healthy. His pastimes involve church activities, rugby activities, and spending time with family and friends.
Clearly, the offence was completely out of character.
The offender has continued to deny the offence, maintaining that the complainant consented to the sexual intercourse, did not resist or tell him to stop, and that he did not strike her. No doubt, given the respect that others accord to him, it has been difficult to accept his dramatic fall from grace.
The author of the pre-sentence report assessed the offender as being at a low risk of general reoffending and an average risk of sexual reoffending due to his unemployment and failure to acknowledge the offence. However, having regard to the offender's strong positive community and family connections, I consider the risk of sexual reoffending to be low. The offender has excellent prospects of rehabilitation.
I am asked to take into account the fact that, during the current pandemic, imprisonment will be much more onerous than usual because it will be associated with a greatly increased risk of contagion and a high risk of a prisoner spending long periods of confinement to cell: R vKemppainen; R v Rose [2020] ACTSC 69. Further, prisoners at the Alexander Maconochie Centre are not allowed personal visits.
Comparable cases
I was referred to a number of comparable cases.
In R v Lindsay [2020] ACTCA 25, the offender and the complainant had been staying in shared accommodation at a hostel. The offender asked the complainant for a kiss and to massage her shoulders. She told him to go away. He then straddled the complainant and grabbed her by the throat. She said, “if I do this, you won’t hurt me?”, to which the offender responded that he would not. The offender engaged in penile-vaginal sexual intercourse with the complainant. The offender pleaded guilty. He had a lengthy criminal record and serious mental health issues. There was a causal connection between the mental condition and the offending conduct, reducing the offender’s moral culpability and the objective seriousness of the offence. The Court of Appeal dismissed an appeal alleging manifest inadequacy and confirmed the sentence of two years’ imprisonment.
In R v UG [2018] ACTCA 64, the offender broke into the complainant’s home and engaged in sexual intercourse without consent when the complainant was asleep. The complainant was the sister of the offender’s fiancée. The offender made full admissions during his police interview. The Court of Appeal found that the sentencing judge had made specific errors. For the offence of sexual intercourse without consent, the Court resentenced the offender to 22 months’ imprisonment (reduced from two years and six months’ imprisonment), suspended after nine months. The Court suspended the total sentence of two years and five months’ imprisonment after 10 months.
In Wyper v The Queen; R v Wyper [2017] ACTCA 59 (Wyper), the Court dismissed a Crown appeal alleging manifest inadequacy. The offender had been sentenced to two years and six months’ imprisonment to be served by way of an intensive correction order with a condition that he perform 100 hours of community service work. The offender and the complainant had lived together until the day of the offence, when the offender asked the complainant to move out. Following an argument about the relationship breakdown, the offender pinned the complainant down and forcibly engaged in digital penetration for a couple of minutes, hurting and frightening the complainant. She suffered bruises and abrasions to her arms and upper thighs and a laceration at the base of her vagina. The offender was a person of prior good character who advanced strong subjective features. The sentencing judge described the offence as “an uncharacteristic aberration”: at [73]. The Court of Appeal considered that the sentence was “indeed lenient” but within the available range: at [130].
In R v Buda-Kaa [2013] ACTCA 46, the Court dismissed an appeal against the inadequacy of a sentence of three years’ imprisonment for sexual intercourse without consent. The offender was known to the complainant. The offender had entered the complainant’s residence while she was asleep, climbed into her bed, and digitally penetrated her. The Court considered that, although the sentences imposed were lenient and at the low end of the appropriate range of sentences, they were not manifestly inadequate: at [29].
In R v MZ [2019] ACTSC 341, the offender and the complainant were married but had separated. They slept in separate bedrooms in the same home. While the complainant was asleep, the offender entered her bedroom and engaged in sexual intercourse with the complainant. The complainant woke shortly after the intercourse commenced and told the offender to stop, which he did. The offender was found guilty by a jury. Mossop J sentenced the offender to 22 months’ imprisonment, suspended after four months.
In R v MT [2014] ACTSC 162, after a trial, the offender was convicted of one count of engaging in sexual intercourse without consent. The offender and the complainant had met shortly before the incident. They were staying at the same residence. Earlier on the night of the offence, the complainant had acted flirtatiously. The complainant awoke to find the offender engaging in intercourse. He was not wearing a condom. The offender continued the sexual intercourse after the complainant woke up. The complainant froze. The offender was 19 years old, had no criminal record, and had “excellent prospects of rehabilitation”: at [87]. Refshauge J imposed a sentence of two years’ imprisonment with a nonparole period of nine months.
In R v LQT [2018] ACTSC 246, the offender and the complainant had been married for 10 years. At the time of the offence, they were estranged and sleeping separately. The offender repeatedly asked the complainant to engage in sexual intercourse, but she refused. He then engaged in penile-vaginal intercourse without consent. When she asked him to stop, he did so. The offender was of Nepalese background. He advanced strong subjective circumstances and had no prior criminal history. He pleaded guilty. I imposed a sentence of 22 months’ imprisonment (discounted for the plea of guilty) and suspended the sentence after 37 days, noting that the offence had occurred “in a highly charged emotional situation involving a relationship breakdown” and referring to cultural differences: at [15]–[16].
The ACT Sentencing Database statistics indicate that sentences for this offence are often in the range of three to five years' imprisonment.
Other sentencing considerations
In sentencing the offender, I am required to have regard to the factors in s 33 of the Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act) in so far as they are known and relevant. I have referred to the relevant factors above.
In the case of sexual offences such as the present, general deterrence, denunciation, and recognition of harm to the complainant are prominent sentencing purposes under s 7 of the Sentencing Act: see Wyper at [114].
In R v Palmer [2017] ACTSC 357, Elkaim J said (at [29]):
General deterrence is clearly important because sexual assault by young intoxicated men is not uncommon and is extremely serious. Furthermore, the conduct must be denounced. Violent sexual assaults against women is conduct which the law treats very seriously and is socially unacceptable.
In Wyper, the Court observed that, in relation to the offence of sexual intercourse without consent, a period of full-time imprisonment is usually necessary to give effect to relevant sentencing principles: at [114].
In this case, it was conceded that a sentence of imprisonment was the only appropriate penalty and that, ordinarily, a sentence of full-time imprisonment would be appropriate penalty for an offence of this nature and in these circumstances. However, it was submitted that in the current circumstances, the Court should consider imposing an intensive correction order. Alternatively, it was submitted that a partially suspended sentence would be an appropriate penalty.
In my view, an intensive correction order would fail to recognise the considerable objective seriousness of the offence and would fail to adequately acknowledge sentencing purposes of general deterrence, denunciation, and recognition of harm to the complainant.
However, having regard to the effect of the pandemic on the circumstances of imprisonment, the offender's otherwise exceptionally good character, the low risk of reoffending, and the excellent prospects of rehabilitation, I consider that it is appropriate to impose a partially suspended sentence that nevertheless sees the offender serving a substantial period of full-time imprisonment adequate to recognise relevant sentencing purposes.
Sentence
The offender is sentenced to two years and six months’ imprisonment from 16 June 2020 to 15 December 2022.
I make an order suspending the sentence after nine months (i.e. on 15 March 2021), on the offender entering a good behaviour order for 21 months until 15 December 2022.
| I certify that the preceding fifty-one [51] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Chief Justice Murrell. Associate: Date: |
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