R v Vatanitawake

[2020] ACTSC 304

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

1. 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)).

1. 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.

1. The offender has been in custody since 5 December 2019.

Facts

1. 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.

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 the offenders were based. She chatted to Masivesi.  She flirted with Vunilagi and the two began to kiss and embrace. Both were very intoxicated.

1. 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.

1. 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.  

1. 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…