R v Versteeg

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:

1. 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.

1. 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.

1. 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

1. The disputed facts relate to the charge of sexual intercourse without…