R v Finau (No 2)

Case [2020] ACTSC 193

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
R vKemppainen; R v Rose [2020] ACTSC 69
R v Lindsay [2020] ACTCA 25
R v LQT [2018] ACTSC 246
R v MT [2014] ACTSC 162
R v MZ [2019] ACTSC 341
R v Palmer [2017] ACTSC 357
R v UG [2018] ACTCA 64

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

  1. 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.

  1. The offender has been in custody since 16 June 2020.

Facts

  1. The facts are set out in R v Finau [2020] ACTSC 155.

  1. 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. 

  1. 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. 

  1. 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. 

  1. 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. 

  1. The offender grabbed the complainant, pushed her over,…

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AGLC
R v Finau (No 2) [2020] ACTSC 193
Case
[2020] ACTSC 193
Decision Date

CaseChat Overview and Summary

In the matter of Regina v Finau, the appellant faced the Supreme Court of Victoria following a conviction for engaging in sexual intercourse without consent. The case, referred to as "date rape", involved allegations that the appellant had non-consensual sexual intercourse with the complainant. The court was tasked with determining an appropriate sentence in light of the offence's gravity and the appellant's background.

The primary legal issue the court had to address was the determination of an appropriate penalty for the appellant's actions. This involved assessing the severity of the offence, the appellant's criminal history, and the principles of sentencing relevant to sexual offences. The court also considered the impact of the offence on the victim and the need for deterrence and rehabilitation.

In delivering the judgment, the court meticulously examined the nature of the offence, highlighting its seriousness due to the lack of consent. The court acknowledged the appellant's lack of a prior criminal record and his remorse, but balanced these factors against the need to uphold the law and protect the community. The court concluded that a sentence of two years and six months’ imprisonment, suspended after nine months, was appropriate. This sentence was further mitigated by the condition of the appellant entering into a good behaviour order. The court aimed to achieve a balance between punishment, deterrence, and the potential for rehabilitation.

Orders

Orders of the court

The offender is sentenced to two years and six months’ imprisonment, suspended after nine months on entering into a good behaviour order.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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