R v Vatanitawake
[2020] ACTSC 304
•13 November 2020
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Vatanitawake |
Citation: | [2020] ACTSC 304 |
Hearing Date: | 11 November 2020 |
DecisionDate: | 13 November 2020 |
Before: | Murrell CJ |
Decision: | The offender is sentenced to two years and six months’ imprisonment, with a nonparole period of 15 months’ imprisonment. |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – Sexual intercourse without consent in company |
Legislation Cited: | Crimes (Sentencing) Act 2005 (ACT) s 33 Crimes Act 1900 (ACT) s 54(2) |
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) Isimeli Ilimeleki Natuwawa Vatanitawake (Offender) |
Representation: | Counsel S Jerome (Crown) J Sabharwal (Offender) |
| Solicitors ACT Director of Public Prosecutions (Crown) Sharman Robertson (Offender) | |
File Number(s): | SCC 25 of 2020 |
MURRELL CJ:
Introduction
On 9 October 2020, I delivered judgment in the judge alone trial of Vatanitawake and three alleged co-offenders, Vunilagi, Masivesi and Macanawai: R v Vunilagi; R v Vatanitawake; R v Masivesi; R v Macanawai (No 2) [2020] ACTSC 274 (Vunilagi (No 2)).
I found Vatanitawake guilty of one count of sexual intercourse without consent in company with Vunilagi, contrary to s 54(2) of the Crimes Act 1900 (ACT). The maximum penalty is 14 years’ imprisonment.
The offender has been in custody since 5 December 2019.
Facts
The full factual findings relating to Vatanitawake 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 Vatanitawake. Although Vatanitawake is not to be sentenced for offences committed by others, it is necessary to refer to some of 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 the offenders were based. She chatted to Masivesi. She flirted with Vunilagi and the two began to kiss and embrace. Both were very intoxicated.
Following an aggressive exchange between Vunilagi and another man, the complainant became upset. At 4:54 AM, Vatanitawake attracted her attention, and she followed him downstairs to an area outside the female toilets, dabbing her eyes. Vatanitawake appeared to console her, and they began to kiss and cuddle. The complainant led Vatanitawake into the female toilets area, where the amorous exchange continued.
When Mooseheads closed at 5 AM, patrons were required to leave. At 5:05 AM, the complainant and Vatanitawake emerged from the female toilets area, separated, and left the premises.
The complainant walked alone to the corner of London Circuit and East Row. Having reached the corner, she turned and returned to the area outside Mooseheads Bar, where former patrons, including the offenders, were loitering. Vatanitawake beckoned to her. She chatted to him, another man, and Masivesi for several minutes, before sitting down on the pavement next to where Vatanitawake was standing.
Vunilagi returned to the area immediately outside Mooseheads Bar and pulled the complainant up by her arm. She willingly accompanied him up Verity Lane towards the taxi rank on Alinga Street. Vatanitawake, Masivesi and Macanawai followed some distance behind. Masivesi had agreed to Vunilagi taking the complainant to his one-bedroom apartment on Northbourne Avenue, Dickson.
The complainant entered a taxi van and Vunilagi told the driver that two other men were coming. Macanawai entered the rear seat. Vunilagi entered and sat beside the complainant. She appeared to be happy with this arrangement.
However, after Vatanitawake entered the front seat of the taxi, the complainant told the taxi driver that she was “not comfortable” with him. She seemed troubled. Nevertheless, when the taxi driver asked whether she was “good”, she responded in the affirmative.
The taxi driver gave evidence that all seemed well until the taxi neared the Downer/Dickson lights. At that point, the complainant “started refusing” Vunilagi. The male passengers began to speak “rudely” to each other. The complainant became unhappy and unfriendly towards them. Her behaviour changed and she was “refusing stuff”.
Masivesi and a fifth man travelled to Masivesi’s home in another vehicle.
As soon as the vehicle carrying Vatanitawake arrived at Masivesi’s residence, Vunilagi and the complainant went to the bedroom. Vatanitawake and the other men remained in the living room.
After she had been in the bedroom with Vunilagi for a relatively short period, the complainant began to cry, making it clear to Vunilagi that she was not happy to continue sexual interaction with him. Vunilagi lost his erection.
Vunilagi called Vatanitawake into the bedroom and spoke to him in another language. Vunilagi gestured to Vatanitawake that he should undress and get on top of the complainant. She remained on the bed, crying, as she felt too intoxicated to do anything.
Vatanitawake undressed quickly, “made out” with the complainant until he became erect and had penile/vaginal intercourse with her while Vunilagi was watching. He ejaculated inside the complainant. He did not use a condom.
While Vatanitawake was having penile/vaginal intercourse, Vunilagi grabbed the complainant by her hair and required her to “suck” him again. She was on her back. This continued until Vatanitawake ejaculated.
Vatanitawake left the room.
Thereafter, Vatanitawake remained in the living room, drinking and socialising. The complainant was subjected to sexual assaults by Vunilagi, Masivesi and a third man. On one or two occasions, she emerged from the bedroom to go to the toilet.
Some hours later, when she was much more sober, the complainant pushed past Masivesi and Vunilagi and left the premises. 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. She showered.
Later that day, she reported the incident to police and was medically examined at the Canberra Hospital. The examination revealed minor soft tissue injuries to the neck, right side of the body, and right buttock, genital tenderness and two abrasions in the external genital area.
DNA testing of vaginal samples located DNA matching that of Vatanitawake.
At the trial, Vatanitawake did not dispute that sexual intercourse had occurred, but maintained that it had been consensual.
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
At [483]–[484] of Vunilagi (No 2), I stated:
I am satisfied beyond reasonable doubt that Vatanitawake was reckless as to the complainant’s consent. … Even if he was highly intoxicated, Vatanitawake must, at least, have realised that the complainant may not have been consenting, especially given the presence of Vunilagi. Vatanitawake made no inquiry of the complainant.
I am satisfied beyond reasonable doubt that Vatanitawake’s conduct occurred in the company of Vunilagi. At first, Vatanitawake may not have known that Vunilagi intended to engage in simultaneous intercourse. However, throughout the time that Vatanitawake engaged in sexual intercourse with the complainant, the men were present together for the purpose of Vatanitawake engaging in sexual intercourse. While Vatanitawake’s intercourse continued, Vunilagi obliged the complainant to fellate him in circumstances which must have been known Vatanitawake.
At [438], I said:
[I]t can readily be accepted that, when extremely intoxicated and sexually frustrated, Vunilagi directed the younger man who owed him respect to engage in sexual intercourse while requiring the complainant to fellate him.
The offence was not planned; the offender did not initiate the offence but responded to Vunilagi’s invitation or direction to enter the room. Vunilagi was considerably older than Vatanitawake and, for that reason and because of his status as an excellent rugby union player, he was owed respect. Further, Vatanitawake may have been influenced by Vunilagi’s somewhat overbearing presence.
Nevertheless, Vatanitawake was an adult to whom the complainant’s physically vulnerable position would have been apparent and who must have realised that the complainant may not have been consenting.
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.
The failure to use a condom exposed the complainant to the risks of disease and pregnancy.
Subjective features
The offender is 21 years old. At the time of the offence, he was 20 years old.
The offender was raised in Fiji. He is the second oldest of five children. His family are members of the Methodist Church. He has loving and supportive relationships with his family, particularly with his mother.
The offender left home at the age of 15 and lived with his uncle, who looked after him and took charge of his promising rugby union career. He completed high school, excelling in rugby. He aspired to play rugby union at a professional level.
In 2017, the offender travelled to the Sunshine Coast and was selected to play a season for the Melbourne Storm Under 20s team.
In 2019, he returned to Australia and played two games for the Canberra Raiders Under 20s team. The offender then joined the Gungahlin Bulls. Currently, he is on a sport visa sponsored by the Gungahlin Bulls.
Prior to his arrest, the offender lived in a share house with Macanawai and three other men.
In Australia, he found employment as a scaffolder and bricklayer while working as a semi-professional football player.
The offender denied abuse of drugs or alcohol. However, he stated that he would often consume up to 10 full-strength beers on a night out. On the other hand, he has always maintained a high level of physical fitness.
The author of the pre-sentence report opined that, because the offender disagreed with the statement of facts, he “displayed a poor attitude to the offence”, a “lack of insight and [an] apparent inability to express victim empathy”. The author assessed the offender’s risk of sexual recidivism as above average. The author also stated:
The offender appeared well supported by his family group in his home country; and it may be that their absence, and attendant guidance and boundaries such support may imply, contributed to his offending behaviours.
I do not accept that there is a significant risk of sexual recidivism. I consider that the offence was an isolated offence committed by an immature young man who was encouraged to commit the offence by an older man whom he respected. The offence occurred in the context that the offender was living away from his family and lacked mature adult guidance.
When released from custody, the offender will be conveyed to the Villawood Immigration Detention Centre, from where he will be deported to Fiji.
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) insofar as those matters are known and relevant.
General deterrence, denunciation, and the recognition of harm to the victim are important sentencing purposes. However, because of the offender’s youth and because his prospects of rehabilitation are good, rehabilitation is also a very important sentencing objective.
I am satisfied that the only appropriate sentence is one of imprisonment and that the objective seriousness of the offence requires that the sentence is one of full-time imprisonment.
Sentence
The offender is sentenced to two years and six months’ imprisonment, from 5 December 2019 to 4 June 2022.
I fix a nonparole period of 15 months, from 5 December 2019 to 4 March 2021.
| I certify that the preceding fifty-two [52] 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