R v Masivesi
[2020] ACTSC 305
•13 November 2020
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
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)).
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).
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.
The offence of act of indecency without consent is contrary to s 60 of the Crimes Act. The maximum penalty is seven years’ imprisonment.
The offender has been in custody since 9 December 2019.
Facts
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.
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.
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.
Masivesi himself had been drinking since 7 or 8 PM.
Following an aggressive exchange between Vunilagi and another man, at about 4:54 AM, the complainant accompanied Vatanitawake to the downstairs toilet area.
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 outside Mooseheads Bar, where she spoke to several men for several minutes and then sat down on the pavement.
Vunilagi pulled her to her feet and she willingly accompanied him down Verity Lane to a taxi rank, where the two entered a taxi van. Vatanitawake and Macanawai also entered the taxi van. Vunilagi had asked the offender whether he could take the complainant to the offender’s residence in Northbourne Avenue, and the offender had agreed. The taxi van proceeded to Masivesi’s residence.
Masivesi and another man, TW, travelled to Masivesi’s residence in a second taxi. By the time that the offender arrived home, Vunilagi was in the bedroom with the complainant, apparently engaging in sexual behaviour. Masivesi sat in the living room area of the small apartment with the other men, drinking and playing music.
Masivesi saw Vunilagi “drag” Vatanitawake and Macanawai into the bedroom and, to his knowledge, at one stage Vunilagi and Macanawai were in the bedroom together.
By his own admission, at another stage the offender walked into the bedroom, saw Vunilagi using his fingers to “touch up” the complainant, told Vunilagi to desist, and reassured the complainant. He also witnessed Vunilagi attempting to touch the complainant’s genital area in the living room.
At the trial, the offender maintained that the complainant had offered herself to him, but he had refused the offer. However, I rejected that evidence and accepted the evidence of the complainant beyond reasonable doubt.
I accepted her evidence that, following a number of sexual interactions with Vunilagi, Vatanitawake and the third man (who, according to Masivesi, was Macanawai), Masivesi entered the bedroom for the first time and witnessed Vunilagi’s interaction with the complainant. He told Vunilagi to stop and leave the room. When Vunilagi did so, he comforted the complainant and told her get some rest.
Count 11. Masivesi left the room for 20 or 30 seconds but then returned and began to caress the complainant’s face, arms and breasts, moving down to her genital area. When she protested, he assured her that she was “safe” with him and that he would “take care” of her. He grabbed her shoulders and began to kiss her on the lips and body.
Count 12. The offender engaged in cunnilingus for a short time, and the complainant began to cry.
Count 13. The offender “fingered” her with his right hand, penetrating a considerable distance, until she began to cry uncontrollably in pain and “hyperventilated” such that she feared that she was having a panic attack.
The offender desisted and tried to calm the complainant and comfort her. He apologised, told her to go to sleep and said that she would be taken home when she woke up. The complainant did go to sleep.
Sometime later, she woke up. Vunilagi engaged in further unwanted sexual activity with her.
The complainant left the premises at about 10:20 AM on 3 November 2019, pushing past the offender and Vunilagi as she left. When she reached the main road, she spoke to a passer-by, who observed her distress and assisted her to call a taxi. She made a general complaint to the passer-by and the taxi driver who conveyed her home.
Later that day, the complainant reported the incident to police and was medically examined at the Canberra Hospital. The examination revealed minor soft tissue injuries, including two abrasions in the external genital area.
Victim impact
There was no victim impact statement.
There was evidence that the complainant had sustained soft tissue injuries, which would have been transient. The evidence did not permit a conclusion that all or any of the physical injuries resulted from the offences committed by a particular offender.
The incident must have had a dramatic psychological impact on the complainant. The strangers whom she encountered immediately after the incident (the passer-by and the taxi driver) observed that she was distressed. Almost 12 months later, when she gave evidence at the trial, she sobbed when her pre-recorded evidence-in-chief interview was played.
As Vunilagi was the instigator of the event and the principal offender, much of the psychological impact must be attributed to his conduct. However, all offenders must accept some responsibility.
Objective seriousness
In Vunilagi (No 2) at [524]–[525], I said:
I am satisfied beyond reasonable doubt that Masivesi was reckless about the complainant’s lack of consent; indeed, as he counselled the co-accused against similar conduct, he must have known that she probably did not consent.
… Consistent with the character evidence, Masivesi did not become aggressive, recognised that what was occurring was disrespectful to the complainant, and was somewhat sympathetic to the complainant’s plight. Regrettably, in his intoxicated condition, he also succumbed to the temptation to abuse her.
The act of indecency was multifaceted, involving the intimate touching of various parts of the complainant’s body.
Although the offences could be described as opportunistic, they occurred in the context that the offender was aware that others (particularly Vunilagi) had abused the complainant and he had expressed disapproval.
In conducting himself as he did, the offender added insult to injury, reducing the complainant to a highly anxious state; she felt that she was having a panic attack. When he commenced to abuse the complainant, the offender was aware that she had been abused by others but nevertheless went ahead to the point that she experienced significant physical pain.
On the other hand, the offender’s sexual interaction with the complainant would have been relatively brief and he ceased when it became apparent that the complainant was very distressed. The offences were part of the same relatively short course of conduct. The offender’s actions were not accompanied by violence or the threat of violence (other than to the extent necessarily associated with his actions violating her body) and no weapon was employed.
Subjective features
The offender is 45 years old. At the time of the offence, he was 44 years old.
Despite his mature age, he has no prior criminal record.
He was born in Fiji. He completed a university degree in Fiji and then worked as a civil engineer.
In 2004, he enlisted into the Royal Navy and thereafter he worked in the UK and elsewhere.
In 2006, the offender married. The couple has one child.
In 2012, the offender made a significant sacrifice, leaving the Navy at the rank of Leading Seaman to become a full-time carer for the couple’s then three-year-old child and enable his wife to advance her career.
In 2017, the family relocated to Australia so that the offender’s wife could pursue a scholarship at the Australian National University.
In 2018, the offender’s wife and child returned to Fiji so that his wife could work, as required by the terms of the scholarship.
The offender remained in Australia. He applied for and obtained a protection visa. Because of the convictions, the protection visa was cancelled. Once the offender is released from custody, he will be deported to Fiji.
At the time of his arrest, the offender was employed in the construction industry. While in custody, he has attended education classes and worked at the prison bakery.
The author of the pre-sentence report assessed the offender at a low risk of general reoffending and at an average risk of sexual reoffending. I do not accept the latter assessment. The offender is a man of long-standing good character who has strong family and community ties. The incident was an aberration.
During the trial, the offender called strong evidence of good character.
The offender belongs to the Methodist Church in Canberra. He is held in high regard at the Fijian High Commission, where he has been helpful and reliable in assisting with visits from dignitaries.
The offender’s wife provided impressive character evidence at the trial and by way of a letter tendered in the sentencing proceedings. She described the offender as a loving husband and father. She said that he was respectful towards women and was caring and honest. Even when intoxicated, he did not become aggressive in any way. Based on her knowledge of him, she could not accept that he had committed the offences.
The offender’s convictions and sentences will have a very substantial negative impact on his wife’s career. She wishes to pursue higher studies in countries which are now unlikely to admit the offender.
In prison, the offender has been isolated from his wife and child, who reside in Fiji. Because of the pandemic, they have been unable to visit the offender in prison. This has had a significant psychological impact on the offender’s child, who is very close to the offender but has not seen him for the past 15 months.
Comparable cases
I have referred to somewhat comparable cases in my reasons for sentencing the co- offender, Vunilagi: R v Vunilagi [2020] ACTSC 303 at [77]. As noted in those reasons, the Court was provided with a helpful table referring to other cases.
Other sentencing considerations
In sentencing the offender, the Court is required to have regard to the matters set out in s 33 of the Crimes (Sentencing) Act 2005 (ACT) in so far as those matters are known and relevant.
General deterrence, denunciation, and the recognition of harm to the victim are important sentencing purposes. However, because the offender’s prospects of rehabilitation are good, rehabilitation is also a very important sentencing objective.
I am satisfied that the only appropriate sentences are sentences of imprisonment and that the objective seriousness of the offences requires that the sentences are served by full-time imprisonment.
Sentences
I impose the following sentences:
(a)Count 11: act of indecency without consent (touching breasts and genital area and kissing lips and body)—12 months’ imprisonment, from 9 December 2019 to 8 December 2020.
(b)Count 12: sexual intercourse without consent (cunnilingus)—12 months’ imprisonment, from 9 June 2020 to 8 June 2021.
(c)Count 13: sexual intercourse without consent (digital/vaginal penetration)—15 months’ imprisonment, from 9 October 2020 to 8 January 2022.
The total sentence is two years and one month’s imprisonment, from 9 December 2019 to 8 January 2022.
I fix a nonparole period of 12 months and 14 days’ imprisonment, from 9 December 2019 to 22 December 2020.
| I certify that the preceding fifty-six [56] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Chief Justice Murrell. Associate: Date: 13 November 2020 |
0
2
2