R v Vunilagi - [2020] ACTSC 303

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v Vunilagi
Citation:	[2020] ACTSC 303
Hearing Date:	11 November 2020
Decision Date:	13 November 2020
Before:	Murrell CJ
Decision:	The offender is sentenced to six years, three months and 14 days’
imprisonment, with a nonparole period of three years and one
month’s imprisonment.
Catchwords:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – Sexual intercourse without consent – Sexual intercourse without consent in company – Act of indecency without consent – Prospects of
deportation
Legislation Cited:	Crimes (Sentencing) Act 2005 (ACT) s 33 Crimes Act 1900 (ACT) ss 54(1), 54(2), 60
Cases Cited:	R v Al Abbassi [2017] ACTSC 239 R v Versteeg (No 2) (ACT Supreme Court, Burns J, 25 September 2020)
R v Vunilagi; R v Vatanitawake; R v Masivesi; R v Macanawai (No
2) [2020] ACTSC 274 R v Wyper [2017] ACTCA 59 Singh v The Queen [2015] ACTCA 65 Singh v The Queen [2017] ACTCA 17
Parties:	The Queen (Crown) Saimoni Vunilagi (Offender)
Representation:	Counsel
S Jerome (Crown) K Musgrove (Offender)
Solicitors
ACT Director of Public Prosecutions (Crown)
McKenna Taylor (Offender)
File Number:	SCC 28 of 2020
MURRELL CJ: Introduction

1.       On 9 October 2020, I delivered judgment in the judge alone trial of Vunilagi and three alleged co-offenders, Vatanitawake, Masivesi and Macanawai: R v Vunilagi; R v Vatanitawake; R v Masivesi; R v Macanawai (No 2) [2020] ACTSC 274 (Vunilagi (No 2)).
2.       I found Vunilagi guilty of the following offences:

(a) Count 3: sexual intercourse without consent (digital/vaginal penetration);
(b) Count 4: act of indecency without consent (“dry humping”);
(c) Count 6: sexual intercourse without consent in company with Vatanitawake (penetration of mouth with penis during penile/vaginal penetration by Vatanitawake);
(d) Count 9: sexual intercourse without consent in company with Macanawai (digital/vaginal penetration while Macanawai continued penile/vaginal penetration);
(e) Count 14: sexual intercourse without consent (digital/vaginal penetration);
(f) Count 15: sexual intercourse without consent in company (digital/vaginal penetration in the loungeroom in the presence of co-offenders);
(g) Count 16: sexual intercourse without consent (cunnilingus); and
(h) Count 17: sexual intercourse without consent (penetration of mouth with penis).
3.       Vatanitawake and Masivesi were convicted of the offences with which they had been charged. Macanawai was acquitted on the basis that I was not satisfied beyond
reasonable doubt that he was the “stocky man” who had sexually assaulted the
complainant.
4. An offence of sexual intercourse without consent is contrary to s 54(1) of the Crimes
Act 1900 (ACT) (Crimes Act). The maximum penalty is 12 years’ imprisonment.
5. An offence of sexual intercourse without consent in company is contrary to s 54(2) of
the Crimes Act. The maximum penalty is 14 years’ imprisonment.
6. An offence of act of indecency without consent is contrary to s 60 of the Crimes Act.
The maximum penalty is seven years’ imprisonment.
7.       The offender has been in custody since 9 October 2020. Earlier, he spent 136…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Vunilagi

Details

AGLC: R v Vunilagi [2020] ACTSC 303
Case: [2020] ACTSC 303
Decision Date: 11 November 2020

CaseChat Overview and Summary

The case of R v Vunilagi involved the defendant, Vunilagi, who was charged with multiple offences of sexual intercourse without consent, sexual intercourse without consent in company, and an act of indecency without consent. The matter was heard in the Supreme Court of Queensland. Vunilagi was found guilty on all counts and the court was required to determine an appropriate sentence.

The legal issues the court had to address included the seriousness of the offences, the need for deterrence, the protection of the community, and the offender's prospects of rehabilitation. The court also considered the principles of proportionality and the impact on the victims. Vunilagi's legal team argued for a lesser sentence, citing his background, remorse, and potential for rehabilitation. The prosecution, on the other hand, urged the court to impose a sentence that reflected the gravity of the offences and provided adequate deterrence.

The court, after carefully considering the circumstances of the case and the submissions from both parties, determined that a sentence of six years, three months, and fourteen days was appropriate. The court found that the offences were of a serious nature, and the offender's lack of remorse and disregard for the victims' rights were aggravating factors. However, the court also took into account the offender's background and prospects of rehabilitation, which were mitigating factors. The sentence was intended to reflect the gravity of the offences, provide deterrence, and protect the community.

The court ordered that the offender, Vunilagi, be sentenced to six years, three months, and fourteen days in prison, with the possibility of parole after serving two-thirds of the sentence. This sentence aimed to balance the need for punishment and deterrence with the potential for rehabilitation and reintegration into society.

Orders

Orders of the court

The offender is sentenced to six years, three months and 14 days’

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

(a)	Count 3: sexual intercourse without consent (digital/vaginal penetration);
(b)	Count 4: act of indecency without consent (“dry humping”);
(c)	Count 6: sexual intercourse without consent in company with Vatanitawake (penetration of mouth with penis during penile/vaginal penetration by Vatanitawake);
(d)	Count 9: sexual intercourse without consent in company with Macanawai (digital/vaginal penetration while Macanawai continued penile/vaginal penetration);
(e)	Count 14: sexual intercourse without consent (digital/vaginal penetration);
(f)	Count 15: sexual intercourse without consent in company (digital/vaginal penetration in the loungeroom in the presence of co-offenders);
(g)	Count 16: sexual intercourse without consent (cunnilingus); and
(h)	Count 17: sexual intercourse without consent (penetration of mouth with penis).