R v Versteeg
[2020] ACTSC 180
•8 July 2020
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Versteeg |
Citation: | [2020] ACTSC 180 |
Hearing Dates: | 10–11 June 2020 |
DecisionDate: | 8 July 2020 |
Before: | Burns J |
Decision: | See [37]–[38] |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – disputed facts hearing – sexual intercourse without consent – act of indecency without consent – penile/vaginal intercourse – dispute regarding extent and duration of penetration of complainant’s vagina – whether indication of complainant’s lack of consent to intercourse |
Cases Cited: | Filippou v The Queen [2015] HCA 29; 256 CLR 47 |
Parties: | The Queen (Crown) Jake Elias Versteeg (Offender) |
Representation: | Counsel R Christensen (Crown) M Jones (Offender) |
| Solicitors ACT Director of Public Prosecutions (Crown) Kamy Saeedi Law (Offender) | |
File Number: | SCC 320 of 2019 |
BURNS J:
On 10 June 2020 the offender was arraigned on an indictment alleging one count of engaging in sexual intercourse with NI (the complainant) without her consent, being reckless as to whether she was consenting and two counts of committing an act of indecency on NI without her consent, being reckless as to whether she was consenting. The offender entered pleas of guilty to the charge of engaging in sexual intercourse without consent (CC 2019/7321) and one charge of committing an act of indecency (CC2019/7322). The Crown accepted those pleas in full satisfaction of the indictment.
The offender has disputed some of the facts alleged by the Crown on
10 and 11 June 2020. I heard evidence on behalf of the Crown and the offender, and I now publish my findings of fact before setting a timetable for sentencing.
In making findings of fact, I bear in mind what was said by the majority of the High Court in Filippou v The Queen [2015] HCA 29; 256 CLR 47 at [64]:
But, as was established in R v Olbrich, a sentencing judge may not take facts into account in a way that is adverse to the offender unless those facts have been established beyond reasonable doubt and, contrastingly, the offender bears the burden of proving on the balance of probabilities matters which are submitted in his or her favour. Where, therefore, the prosecution fails to prove a fact or circumstance which is adverse to the offender, but the judge is not satisfied on the balance of probabilities of an alternative version more favourable to the offender, the judge is not bound to sentence the offender on a basis which accepts the accuracy of the more favourable version. If the prosecution fails to prove beyond reasonable doubt a possible circumstance of the offending which, if proved, would be adverse to the offender but the offender fails to establish on the balance of probabilities a competing possibility which, if proved, would be favourable to the offender, the judge may proceed to sentence the offender on the basis that neither of the competing possibilities is known…
(Citations omitted).
The dispute
The disputed facts relate to the charge of sexual intercourse without consent. It is accepted by the offender that on 3 June 2018, he engaged in penile/vaginal intercourse with the complainant. The dispute essentially relates to the extent and duration of penetration of the complainant’s vagina, and whether the complainant said or did anything before or during intercourse up to the point where the offender withdrew his penis, that indicated the complainant’s lack of consent to the act of intercourse.
The Crown’s evidence consisted of evidence given by the complainant as well as complaint evidence by two witnesses, KN and GN. The offender also gave evidence. In addition, documentary evidence consisting mainly of copies of Facebook messages between the complainant and the offender were tendered. As is usually the case in such matters, the Evidence in Chief of the complainant consisted mainly of a recorded interview between the complainant and police. The complainant was asked further questions in Evidence in Chief by the Crown prosecutor and was cross-examined by Counsel for the offender. Each of the other witnesses gave oral evidence at the hearing, including cross-examination.
The complainant’s evidence
There is no dispute that the offender and the complainant met on a cruise to Vanuatu in May 2018. The complainant had an interest in burlesque dancing, which was the theme of the cruise. The offender is the son of a friend of the complainant. For the duration of the cruise, the complainant and the offender spent some time together participating in cruise activities along with the complainant’s other friends. By the end of the cruise, the complainant considered the offender to be a friend.
On 2 June 2018, the complainant drove from Canberra to Newcastle, NSW, to perform in a burlesque show. By that time, the complainant had become somewhat romantically attracted to the offender. The complainant testified, however, that she had spoken to the offender twice in the days prior to 3 June 2018, telling him that she was not going to have sex with him because he had not been tested for sexually transmissible infections and he was not keen on wearing protection such as a condom. The complainant testified that she said to the offender “[l]ook, I’d hypothetically have sex with you, but for that to happen, you would need to get tested, which takes more time than a day. So that’s clearly not going to happen any time soon. And you would need to accept the fact that you’re going to have to wear protection. So until those things change, it’s just off the cards altogether.”
After the show finished in Newcastle late on the evening of 2 June 2018, the complainant drove back to Canberra. During that trip, she and the offender conversed by telephone. It was arranged that the complainant would stay at the offender’s house when she returned to Canberra in the early morning of 3 June 2018. The complainant indicated that she was not sure that she would be interested in engaging in any
sexual activity with the offender that morning because she would be tired from the long trip.
When the complainant arrived at the offender’s house, she had a shower and they watched a movie. They kissed and there was also some consensual sexual touching, consisting of the offender touching her breasts on top of her shirt. The complainant said that the offender rolled her over onto her stomach and started to pull her pants down. The complainant testified that she said “no”. She stated that the offender laughed and did not appear to be listening to her. She said to him “[n]o, I’m serious. I’m really not joking. Stop. You’re annoying me. Stop”. She said that the offender said “[o]h, I’m just going to, like, rub it against you”. She replied “[n]o, I don’t care what you’re doing. Just don’t do it”. The complainant testified that she had one hand behind her trying to pull her pants up, but she was unsuccessful. She testified that the offender then put his penis into her vagina and it was very painful and she said loudly “[o]w”. She also said “[s]eriously, stop. I don’t want you to. It’s going to hurt me”. She believed that he continued to engage in sexual intercourse with her for about one minute before she managed to turn her head and bite him on the shoulder. She said that this appeared to shock the offender and she was able to push him off. The complainant said that the offender then began apologising, saying that he thought that the complainant had wanted it. The complainant testified that she said to the offender “[w]hy? I told you to stop. I told you it was going to hurt. Like, what more could I have said to make that clear?”
The complainant testified that the offender then said that the complainant had told him on the cruise that he could have sex with her. In her recorded interview with police, the complainant denied that she had ever said anything like that to the offender on the cruise. When the offender said that to her on the morning of 3 June 2018, she said “it kind of freaked me out because it was just – he said it like he really believed it.” The complainant testified that she then reminded him of the conversations they had previously engaged in about the need for him to be tested and for him to use protection before she would be willing to engage in sexual intercourse with him. The complainant testified that she reminded the offender of those conversations, and he kept apologising and trying to kiss her. She then said to him that she was going to sleep. In her evidence, the complainant said that she was concerned because she was alone with the offender in the house, and was very tired after the trip back from Newcastle. She then changed into a set of very thick pyjamas and rebuffed any further attempts by the offender to touch her, saying that she was very tired.
In further questioning during the hearing on 10 June 2020, the complainant was asked to describe the act of penile penetration that occurred. She said that it was “basically straight into the orifice of the vagina”. She went on to say that the offender then began thrusting his penis into her vagina, penetrating further with each thrust until he was “all the way in”.
The complainant stated that when she arrived at the offender’s house in the early hours of 3 June 2018, the offender had just finished smoking cannabis. She herself did not consume any cannabis or alcohol.
In cross-examination, the complainant accepted that she and the offender became close friends on the cruise. She denied, however, that she and the offender had attended a play together on the cruise and had held hands. She also denied having kissed the offender on the cruise. She accepted that on 26 May 2018, not long after the cruise ended, she had messaged her friends in a Facebook group chat saying that she had experienced a surprising sexual reaction to the offender. I observe that in a Facebook message about one minute after that in which the complainant said that she had experienced a sexual reaction to the offender, she said “[b]ut towards the very end I was like…oh no…there’s a slight urge I didn’t expect”.
The complainant agreed in cross-examination that on 1 June 2018 she drove the offender back from a burlesque event. She said that some kissing occurred between herself and the offender, but each remained in their own seat in the car. She agreed that there was a conversation about the conditions (to which I have already referred) that would need to be fulfilled before she was prepared to engage in sexual intercourse with him. It was at that point that the offender suggested that she come back to his house after she finished her burlesque show in Newcastle on 2 June 2018.
In cross-examination, the complainant agreed that the offender resided in the south of Canberra while she resided in the north. She agreed that by travelling to the offender’s home in the early hours of 3 June 2018 it added 15 or 20 minutes to her journey. The complainant was questioned about what sexual activity with the offender she may have been prepared to engage in on the morning of 3 June 2018. She said that she was prepared to engage in “hand stuff” that did not involve the risk of sexually transmitted infection. She denied that she had been willing to allow the offender to perform oral sex on her. She denied having smoked cannabis with the offender after arriving at his house. She also denied having put pyjamas on immediately after showering when she arrived at the offender’s house.
The complainant said that she was wearing Lycra leggings after she showered. She described them as tight, but they were not difficult to get on and off. She said that while she was lying on her stomach on the bed the offender pulled her leggings down about 10 cm below her bottom. Her legs were not splayed at the time that she said that the offender engaged in sexual intercourse with her. She rejected the proposition that sexual intercourse could not have occurred in that position.
The complainant was cross-examined at length about Facebook messages between herself and her female friends after the incident on 3 June 2018. She said that she tried to downplay the incident, and she continued to have mixed feelings for the offender. She did not want to believe that she had been sexually assaulted. She agreed that on 11 June 2018 she sent a text message to a friend saying “[h]e literally put it in a bit and it fucking hurt”, but denied the proposition that she had used the description “a bit” to indicate how far the penis penetrated her vagina. She said that she was attempting to minimise the situation with her friends. She said that she lied to her friends because she did not want them to know. Similarly, in a text message with a friend on 19 July 2018, in response to a question “[h]e raped you dude?”, The complainant responded, “[l]ike for a second”. The complainant said that she was intending to convey to her friend that the offender had placed his penis in her vagina for a second, but this was not the truth.
The complainant rejected a suggestion that on the morning of 3 June 2018 she and the offender had engaged in oral sex. She agreed that the offender said to her in a text message on 17 July 2018 that he had told his friend that “we gave each other oral”, and she did not respond that that was untrue, but said by this point in the conversation she had given up arguing with him. Finally, the complainant disagreed with a suggestion that the offender’s penis had penetrated her labial area for no more than a second, and that he had immediately withdrawn it when she became angry.
KN’s evidence
KN gave evidence that she is a friend of the complainant through the burlesque scene. She also knows the offender’s mother in the same way. On 3 June 2018, KN received a telephone call from the complainant. At that time KN was in a hotel in Sydney. KN said that the complainant told her that she, the complainant, had been on the phone to the offender throughout the night as she was driving home and she had gone over to his house. KN said that the complainant did not disclose any details, but said that an incident had occurred. About a week later, the complainant and GN came to KN’s house and the complainant gave her further information. KN said about this conversation:
She told me that she had gone over to Jake’s house the week before and he tried to make some advances on her which she declined. He then managed to roll her onto her stomach at some point after pulling her pants down a couple of times and her pulling them up at which he entered her, I think, I suppose…
In cross-examination, KN was taken to the Facebook message on 11 June 2018 where the complainant had said “[h]e literally put it in a bit and it fucking hurt”, and agreed that her understanding from that was that the penetration had taken place for a very short time.
GN’s evidence
GN gave evidence that she had been present during a conversation when the complainant had provided some details regarding what occurred on 3 June 2018. She was unable to recall the exact words, but said:
the gist of the conversation was that [the complainant] had gone over to Jake’s place really late one night, or whether it was early in the morning. She wasn’t really – she didn’t really want to go. She was really tired. I think she was coming back from travelling or something like that and Jake was pretty insistent that she come over, so she said – because they were friends, she said, “Yeah, I’ll come over but we can hang out in the morning. I’m really tired. I just want to sleep”…
GN said that the complainant appeared “visibly shaken and uncomfortable” while giving this version of events.
The offender’s evidence
The offender gave evidence that in June 2018 he was living with his parents. At the time that he gave evidence he was 29 years old. His mother was part of the burlesque community, and with her he went on the cruise in May 2018. Before that time, he was aware of the complainant, but had little to do with her. On the cruise they became much better acquainted. By the end of the cruise, he considered that they were very close friends. He was romantically interested in her, and believed that she felt the same way towards him. On 1 June 2018 the complainant drove him home from an event and they kissed and he caressed her neck and shoulders in the car. At that time, the offender said, the complainant told him that she was happy to engage in sexual intercourse with him, but he needed to be tested for sexually transmitted infections and she would require him to wear a condom.
The following day the complainant drove to an event in Newcastle. He invited the complainant to come back to his house after the event finished. They remained in telephone contact during her return journey. She arrived at his house at about 5 am. He had been smoking cannabis during the night and, he said, he and the complainant then shared cannabis together. The offender testified that the complainant then had a shower and changed into her flannel pyjamas, after which they sat down in his bed and put on a movie. They then engaged in kissing and hugging, as well as touching each other over their clothes. They removed their tops and continued kissing, hugging and touching each other. The offender stated that the complainant eventually pulled his shorts off and put his penis in her mouth for about 10 minutes. She then stopped and laid next to him, and they kissed again. He then pulled her pants down, with her consent, and engaged in cunnilingus. That took about five minutes. The offender then testified:
After that, she was laying on her back, like because that’s how she was laying when I – while I was doing it. I climbed up onto her and I was kissing her as I was moving towards her face. Kissed her on the face. I put my penis on her thigh and I moved a bit, moved it so it would be a bit closer to her vagina and she said “No, I don’t want to do this” We -…and as she was saying that, I moved so my penis just touched the top, just the inside of her – the lips.
The offender estimated that the head of his penis penetrated the complainant’s labia by about 5 mm. He said that the complainant then yelled “[n]o … I don’t want to do this. Get off, get off”, and he immediately got off her. He denied that his penis was ever fully inserted into the complainant’s vagina, and denied that the complainant made any sound or complaint which indicated that she was in pain. He said that he realised that he had offended the complainant and was subsequently apologetic to her.
In cross-examination, the offender accepted that the complainant had made it clear prior to 3 June 2018 that she was concerned about sexually transmitted infections. She made it clear to him that if sexual intercourse was going to occur, he would need to be tested for sexually transmitted infections and he would need to wear a condom. He agreed that, on his version of events, the complainant had taken his penis into her mouth for about 10 minutes while he was not wearing a condom. He also agreed that she had not asked him to use any type of protective device when he performed oral sex on her.
In cross-examination, the offender stated that after the complainant had engaged in fellatio with him, he masturbated himself until he ejaculated, while the complainant watched him. It was after this occurred, he said, that he performed oral sex on her before he moved on top of the complainant and moved his penis to within 5 cm of the complainant’s vagina. She made no complaint about what he was doing until his penis momentarily penetrated her vulvar. He denied that the complainant ever used her teeth on his shoulder.
During Examination in Chief, the offender was taken to a number of Facebook communications between himself and the complainant in the weeks following 3 June 2018. On 11 June 2018 the offender sent a Facebook message to the complainant asking her if he had done anything wrong. She responded “[i]t’s just a bit weird since what happened the other night. Just made me really uncomfortable and I don’t really know how to feel about it”. Later the same night, the offender messaged “I know it was like I went 17 year old bullshit wild… I don’t know what came over me and ive [sic] got it together now, I don’t want that to ruin what we could have had together”.
On the afternoon of 12 June 2018 the offender Facebook messaged the complainant saying “[l]ook dude im [sic] sorry I hope you don’t think I’m a monster, I acted like a teenager and I’m sorry I hurt you. I look forward to hearing from you”. The complainant responded
Okay first of all you did not act “like a teenager”. It was not some harmless childish shit. Stop minimising it and stop insinuating I should forgive you because we “all do bad things” because actually not everyone acts like that. And don’t ask me to hold your hand through your Experience [sic] of being sad that you’ve done the wrong thing. You’re not the victim here no matter how much you’ve convinced yourself that you are. I don’t think you get it at all. You’re so busy talking and thinking about your feelings you don’t think about anyone else’s.
The offender responded, saying, amongst other things, “I understand, im [sic] trying to come up with an excuse but I cant [sic], I know im [sic] not the victim I only feel so bad because of how I must have made you feel, scared and trapped thats [sic] fucked…”
The following Facebook messages then occurred (deleting some parts that are not relevant):
Complainant: Jake I told you you [sic] were too pushy the first time.
The second time you have since freely admitted that you knew when I woke up that I wasn’t happy but what did you do about it? You kept pushing
I quite literally had to push you off me.
Regardless of what I wanted
Even though I have told you from the start that sex wasn’t a go you literally fought me to put it in again and again
And at one point succeeded and hurt me, and acted surprised
You then claimed I had told you on the cruise that you could have sex with me which 100% did not happen – although even if that was true it still doesn’t take away my right to say no
And you then went on to claim that I clearly was lying about my sex drive because I wasn’t letting you
You tried every trick in the book to manipulate me into doing what you wanted
And I’m so over hearing you say that’s teenager like
Sorry but even a teenager acting like that is rapey. That is not harmless immature shit.
Your 27 years old btw so that excuse wouldn’t fly
But I’m genuinely concerned about how many women have been manipulated into having sex with you after how you acted with me.
I was laying there mentally preparing the list of things I would have to do after you Forcing [sic] me – get tested, see a doctor, decide whether to say anything, go back to therapy
…
Offender: I know I admitted and I said I needed big obvious no signs, that last time definitely there was no excuse.
I didnt [sic] act surprised I genuinely was im seriously [sic] I didn’t see any clear signs or anything thats all ive got [sic]
…
Complainant: And Jake the signs were really clear. You need to stop expecting people to make things clearer for you and accept responsibility. It’s time you started listening better to other people
Offender: Look im sorry im a fuck up okay what else do you want me to say, im [sic] sorry what’s done is done I honestly feel like head-butting the wall all day I’m such an idiot! Im [sic] not expecting people to do shit for me I just need a little help every now and then and what I mean is that ive never gone that wild where ive lost my self-control like that [sic]…
On 25 June 2018 the complainant sent the following Facebook messages to the offender in response to multiple messages from the offender:
Stop blaming me for not telling you sooner or not making things clear
I made things VERYclear [sic]
And I told you at the time I was uncomfortable
I said no again and again and again
I told you I wanted space
It’s not my job to give YOU closure
YOU fucked ME over, not the other way around so stop putting the onus on me
Stop acting like I should have done something differently
You are so tied to the idea that you’re a good person that you’re incapable of seeing how incredibly self centred you are
And until you reach that point how could you ever change
Sure. When I’m done with class I’ll spend more of my time explaining to you how you’re manipulative just for you to not listen anyway
Still blaming me for not being clear. I fucking said no a thousand times, I was clearly in pain & that morning I told you in plain terms how I felt
And then told you AGAIN later
So don’t you dare pretend you didn’t know
If you didn’t know after being told AGAIN AND AGAIN AND AGAIN then it’s clear that you didn’t care enough to listen
…
You literally have held me down and put your dick inside me after I said no.
Think about that for a while.
…
And the fucking bullshiy [sic] about how you can’t read my mind – YOU NEVER HAD TO. NOONE ASKED YOU TO. YOU JUST HAD TO LISTEN WHEN YOU WERE CLEARLY TOLD A THOUSAND TIMES
I didn’t hate you after it happened but every time you try to twist it into being my fault, and try to make excuses for how you CHOSE to not listen to me and respect me, I get more and more afraid of you and closer to hating you
…
The offender replied:
I wasn’t listening at all, I was in another place I was taken by mega concentration I cant explain, its like being plugged into a game I cant hear the outside world [sic]…
On 16 July 2018, in response to a Facebook message from the offender to her saying “I think you’re over reacting [sic]”, the complainant replied saying, amongst other things:
You literally put your dick inside me while I was struggling and telling you not to
And have harassed me since, and you have the fucking audacity to say I’m overreacting? You’re lucky I didn’t call the cops, if anything I have fucking UNDERreacted this entire time
…
Later in that Facebook conversation, the offender said:
I am sorry for not fucking realizing either, I thought we were playing a game at the time, when I knew I wanted to shoot myself I still fucking do…
In cross-examination the offender agreed that he in his version of events, penetration of the complainant’s vagina was a very brief and effectively accidental. He accepted, however, that in his Facebook conversations with the complainant he had not taken issue with her accusations that she had been held down and that she had said “no” before the act of penetration. He said that he disagreed with the complainant’s description of events, but he did not want to engage in an argument with her and was hoping to salvage the relationship. With regard to the Facebook message at [35]’s above, in which he stated that he believed they were playing a game at the time, the offender stated that he was trying to stop smoking cannabis at that time and that his messages were somewhat erratic.
Consideration
I am satisfied beyond reasonable doubt that the events of the early morning of 3 June 2018 occurred as the complainant described them, and not as the offender described them. I have reached this conclusion on the basis of the following:
(a)the evidence given by the complainant is consistent with her description of the events in her Facebook messages to the offender after the event;
(b)it is inherently unlikely that the offender would not have sought to challenge the complainant’s assertions that he held her down, that she had said “no” on multiple occasions before he engaged in sexual intercourse and had indicated clearly that she was in pain if events had occurred as he says;
(c)the offender’s description of his conduct where he says “I’ve never gone that wild where I’ve lost my self-control like that” is inconsistent with his evidence of the events;
(d)the offender’s Facebook message that “I wasn’t listening at all, I was in another place, I was taken by mega concentration it’s like being plugged into a game I can’t hear the outside world” is also inconsistent with his evidence of the events;
(e)the Facebook messages from the complainant to her friends should be given less weight as accurately describing the events because it is understandable that she would not want her friends to know the whole truth, at least at the outset. The important communications are those between the complainant and the offender;
(f)in light of the complainant’s very clear concern about sexually transmitted infection, it is inherently unlikely that she would have engaged in oral sexual activity with the offender as he described; and
(g)similarly, it is inherently unlikely that she would have allowed the offender to move his penis within 5 cm of her vagina after he ejaculated and without wearing a condom.
I am satisfied that the offender rolled the complainant onto her stomach while she was on his bed. She was fully clothed at the time. He pulled her leggings down despite the complainant’s physical attempts to stop him and her verbal indications that he should stop and that she did not want to engage in sexual intercourse. He then placed his erect penis into her vagina, causing the complainant pain. The complainant said “Ow” loudly, indicating that she was in pain. The offender continued to thrust his penis into the complainant’s vagina despite her indications that she did not want to engage in sexual intercourse. I am unable to find beyond reasonable doubt for how long this occurred, or how deeply his penis penetrated her vagina, but I am satisfied that I was for a longer period, and a deeper penetration than the offender submitted. This continued until the complainant bit the offender on his shoulder.
| I certify that the preceding thirty-eight [38] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Burns. Associate: Date: |