R v Masivesi

[2020] ACTSC 305

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

R v Masivesi

Citation:

[2020] ACTSC 305

Hearing Date:

11 November 2020

DecisionDate:

13 November 2020

Before:

Murrell CJ

Decision:

The offender is sentenced to two years and one month’s imprisonment, with a nonparole period of 12 months and 14 days’ imprisonment.

Catchwords:

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – Sexual intercourse without consent – Act of indecency without consent

Legislation Cited:

Crimes (Sentencing) Act 2005 (ACT) s 33

Crimes Act 1900 (ACT) ss 54(1), 60

Cases Cited:

R v Vunilagi; R v Vatanitawake; R v Masivesi; R v Macanawai (No 2) [2020] ACTSC 274

R v Vunilagi [2020] ACTSC 303

Parties:

The Queen (Crown)

Josefa Navunisinu Masivesi (Offender)

Representation:

Counsel

S Jerome (Crown)

S Whybrow (Offender)

Solicitors

ACT Director of Public Prosecutions (Crown)

Boxall Legal (Offender)

File Number(s):

SCC 24 of 2020

MURRELL CJ:

Introduction

1. On 9 October 2020, I delivered judgment in the judge alone trial of Masivesi and three alleged co-offenders, Vunilagi, Vatanitawake and Macanawai: R v Vunilagi; R v Vatanitawake; R v Masivesi; R v Macanawai (No 2) [2020] ACTSC 274 (Vunilagi (No 2)).

1. I found Masivesi guilty of the following offences:

(a)Count 11: act of indecency without consent (touching breasts and genital area and kissing her lips and body);

(b)Count 12: sexual intercourse without consent (cunnilingus); and

(c)Count 13: sexual intercourse without consent (digital/vaginal penetration).

1. The offence of sexual intercourse without consent is contrary to s 54(1) of the Crimes Act 1900 (ACT). The maximum penalty is 12 years’ imprisonment.

1. The offence of act of indecency without consent is contrary to s 60 of the Crimes Act. The maximum penalty is seven years’ imprisonment.

1. The offender has been in custody since 9 December 2019. 

Facts

1. The full factual findings relating to Masivesi and the alleged co-offenders are to be found in Vunilagi (No 2). The following is a summary of those facts, particularly as they relate to Masivesi. Although Masivesi is not to be sentenced for offences committed by other offenders, it is necessary to refer to those offences to place his criminality in a proper context.

1. Between about 10:30 PM on Saturday, 2 November 2019 and 4:30 AM on Sunday, 3 November 2019, the complainant was drinking and socialising at various venues in Civic.

1. At about 4:30 AM, she entered the street level area of Mooseheads Bar and approached the table where Masivesi and the co-offenders were based. She chatted to Masivesi. She flirted with Vunilagi and the two began to kiss and embrace. Both were very intoxicated.

1. Masivesi himself had been drinking since 7 or 8 PM.

1. Following an aggressive exchange between Vunilagi and another man, at about 4:54 AM, the complainant accompanied Vatanitawake to the downstairs toilet area.

1. Mooseheads Bar closed at 5 AM. The complainant and Vatanitawake separated and exited Mooseheads Bar. After walking to the corner of London Circuit and East Row, the complainant returned to the pavement area…