R v Vunilagi
[2020] ACTSC 303
•11 November 2020
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 days (approximately four months and two weeks) in custody in relation to the offences. Consequently, the sentences will date from 26 May 2020.
Facts
8. The full factual findings relating to Vunilagi 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 Vunilagi. Although Vunilagi is not to be sentenced for offences committed by others,
it is necessary to refer to those offences to place Vunilagi’s criminality in a proper
context.
9. 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.
10. At about 4:30 AM, she entered the street level area of Mooseheads Bar and approached the table where Vunilagi, the co-offenders, and Macanawai were based. She chatted to Masivesi. She flirted with Vunilagi, and the two began to kiss and embrace. Both were very intoxicated; an off-duty security officer described them as
“onto the sloppy side of drunk”.
11. 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.
12. 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. As the complainant exited the premises, Vunilagi (who had been evicted because of his intoxication and/or belligerent behaviour and was standing just outside Mooseheads) spoke briefly to her.
13. The complainant walked alone to the corner of East Row. Having reached the corner, she turned and returned to the area outside Mooseheads Bar, where former patrons, including the co-offenders, were loitering. As she walked back, she passed Vunilagi, who was chatting to another man at the London Circuit end of Verity Lane. When she neared Mooseheads, 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.
14. Vunilagi returned to the area 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.
15. 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.
16. 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.
17. 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”.
18. Masivesi and a fifth man, TW, travelled to Masivesi’s home in a second taxi.
19. As soon as the vehicle carrying Vunilagi and the complainant arrived at Masivesi’s
residence, Vunilagi and the complainant went to the bedroom. Vunilagi directed the
complainant to perform “oral” and she did so for about five minutes, causing him to
become erect. They engaged in penile/vaginal intercourse.
20. The complainant did not do so willingly. She felt overborne. Vunilagi is an extremely tall and well-built man. She perceived his behaviour to be aggressive. She began to cry, at which Vunilagi lost his erection.
Count 3. Vunilagi laid the complainant on her back and started “fingering” her violently.
It was painful. She cried and told him to stop, but he did not stop.
Count 4. He began to violently “dry hump” her, while asking her whether she liked it.
She continued crying. This behaviour continued for about 10 seconds.
23. Vunilagi remained unable to revive his erection.
24. He called Vatanitawake into the room 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.
25. 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.
Count 6. 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.
27. Vatanitawake left the room. The complainant stood to dress.
28. Macanawai entered the room. When the complainant said that she was leaving, Vunilagi told her that she must get back on the bed. He pushed her onto the bed and directed her to have oral sex with Macanawai. He then directed her to have penile/vaginal intercourse with Macanawai. The complainant felt intimidated and did as she was told.
29. Count 9. While Macanawai was having penile/vaginal intercourse, Vunilagi repeatedly
pushed his fingers into the complainant’s vagina, and the associated severe pain
caused her to cry and scream loudly. The sound was drowned out by loud Islander
music in the living room.30. Macanawai left the room.
31. Masivesi entered the room and told Vunilagi to stop and leave the room. Masivesi tried to comfort the complainant and told her to get some rest. He left the room for 20 or 30 seconds.
32. Masivesi then returned to the room and began to caress the complainant. When she
protested, he assured her that she was “safe” with him and that he would “take care”
of her. However, he proceeded to perform cunnilingus and to digitally penetrate her.
She was crying and began to hyperventilate. He left and told her to sleep.33. Count 14. The complainant fell asleep. She was awoken by Vunilagi digitally penetrating her. She began to cry in protest.
34. The complainant said that she needed to urinate. She was permitted to go to the toilet under escort; Vatanitawake stood at the doorway. At 7:16 AM, she tried to send a text
message to a friend saying “please help me”, but the message did not transmit. The
attempt to message may have occurred on another occasion when she went to the
toilet.35. After going to the toilet, the complainant walked back to the lounge room, where Vunilagi and the other men were located. She sat on the lounge and started to put on her shoes, preparing to leave.
Count 15. Vunilagi sat beside her and digitally penetrated her vagina in the presence of the other men, pulling her leg up to facilitate the penetration.
Counts 16 and 17. Vunilagi then pulled the complainant upright and escorted her back to the bedroom, where he engaged in cunnilingus and obliged her to fellate him.
38. Vunilagi left the bedroom. The complainant dressed and gathered her belongings.
39. Masivesi re-entered the room and made advances, but she pushed him away and walked out. By that stage, she was feeling more sober. As she exited, Vunilagi told her that she should stay, but she pushed past him and walked to the main road.
40. When she reached the main road, the complainant 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.
41. 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.
42. DNA testing of vaginal samples located DNA matching that of Vatanitawake.
Victim impact
43. There was no victim impact statement.
44. 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 Vunilagi.
45. However, 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.
Objective seriousness
46. The offender escorted the complainant to Masivesi’s residence in the hope (and
probably in the expectation) that she would willingly engage in sexual activity. However, when it became clear that she did not want to engage, he persisted, initiating an event
in which—together with others—he sexually assaulted the complainant over a
considerable period.
47. Although no violence or threat of violence was employed and no weapon was used, the complainant was intimidated by the size, physique and bearing of Vunilagi, and by his words (demanding that she do certain things) and forceful conduct (such as grabbing her hair and pulling her into the bedroom). In relation to the offences that were
not committed in company, she was cognisant of the fact that Vunilagi’s friends were
just outside the bedroom.
48. There was no evidence as to the duration of any offence committed by Vunilagi, other than that the subject of Count 4, and I proceed on the basis that none was of long duration. However, except for Count 4, the nature and circumstances of the conduct the subject of each charge were such that it could not have been of very brief duration.
49. The complainant described Vunilagi as the only offender who was physically “rough”.
50. I have no doubt that, if Vunilagi had been sober, the incident would not have occurred. His drunkenness explains but does not excuse the incident. As Dr Stevens, a psychologist, reported:
The level of intoxication would have affected his impulse control and could have led to poor judgement with perhaps little concern for the consequences.
51. I accept the Crown submission that Counts 6 and 9 were the most serious offences, not only because they were offences of aggravated sexual intercourse without consent
(invoking a greater maximum penalty), but also because of the particular “in company”
circumstances that attended each offence. This is not to say that the offender is to be
sentenced for the conduct of the co-offender with whom he was “in company”; clearly,
he is not.
52. The offences were part of the same course of conduct; the Crown chose to proceed by charging each individual act.
53. The most significant additional facts informing the objective seriousness of each offence are as follows.
Count 3: sexual intercourse without consent (digital/vaginal penetration)
54. While the nature of the intercourse was digital and the duration was not lengthy, the
offender’s actions were violent and caused pain to the victim, who was crying. It was
obvious that she did not consent.
Count 4: act of indecency without consent (“dry humping”)
55. The nature of the conduct was not of the worst sort and the duration was brief (about 10 seconds). This was an offence of low objective seriousness.
Count 6: sexual intercourse without consent in company with Vatanitawake (penetration of mouth with penis during penile/vaginal penetration by Vatanitawake)
56. This was an objectively serious offence. It was accompanied by violence (grabbing the complainant by her hair) and occurred when the complainant was pinned down by the co-offender. The incident was orchestrated by Vunilagi. In the context in which it occurred, the offence was a degrading and humiliating offence in which the complainant was highly objectified.
Count 9: sexual intercourse without consent in company with Macanawai (digital/vaginal penetration while Macanawai continued penile/vaginal penetration)
57. Like Count 6, this was an objectively serious offence. After obliging the complainant to engage in oral and vaginal intercourse with Macanawai and while she was held down by Macanawai, Vunilagi penetrated her. The penetration was very painful. Like Count 6, in the context in which it occurred, the offence was degrading and humiliating, and it involved a high level of objectification of the complainant.
Count 14: sexual intercourse without consent (digital/vaginal penetration)
58. The offence occurred when the complainant was vulnerable because she was asleep.
Count 15: sexual intercourse without consent in company (digital/vaginal penetration in the loungeroom in the presence of co-offenders)
59. The offender was in company with not one, but three others. The offence was physically painful. It was particularly insulting to the complainant as the men were drinking and partying; in effect, Vunilagi made the complainant part of the entertainment. It was physically painful.
Count 16 and 17: sexual intercourse without consent (cunnilingus, penetration of mouth with penis)
60. Although the complainant had repeatedly indicated that she did not consent to sexual interaction, Vunilagi continued to engage in controlling behaviour.
Subjective features
61. The offender is 32 years old. At the time of the offence, he was 31 years old.
62. To his credit, he attained a relatively mature age without acquiring a relevant criminal record.
63. He was born in Fiji and raised in a remote Fijian village. His family was—and remains—
loving and supportive, and it enjoys a high standing in their community. He was raised with Christian values (his father now serves as a pastor) and his family had high moral standards. He maintains contact with his parents and sister, who reside in Fiji. He is proud of his Fijian heritage.
64. In Fiji, he completed his Year 10 certificate, qualified as a plumber, and worked in that capacity for three years.
65. In 2014, he relocated to Australia to pursue opportunities playing rugby union and more generally. In Leeton, NSW, he met his fiancée and her family through the local rugby
union club. In 2018, he and his fiancée moved to Canberra to pursue the offender’s
rugby ambitions. Since 2018, he has lived in Canberra with his fiancée, her sister, the
sister’s partner, and the sister’s young child.
66. His life has revolved around this family, rugby union and his church. He has been a
great help to his fiancée’s sister, providing childcare for her young child (who is now
three years old), and thereby enabling her to work and undertake university studies. He has provided invaluable support to his fiancée, who suffers a chronic health issue. Since the offender was taken into custody, she has spoken by telephone with him every day and visited him weekly.
The offender’s fiancée is a permanent resident of Australia. Currently, he is in Australia
on a bridging (partnership) visa. His visa conditions do not permit employment. A sentence of imprisonment of 12 months or more will mean that consideration is given
to whether the offender’s visa should be cancelled. I am satisfied that, having regard to
the nature of the offences and the sentences that must be imposed, it is likely that the
offender’s visa will be cancelled and he will be deported to Fiji, with significant and
negative implications for the offender, his fiancée and her family.
68. He is actively involved in church affairs and in the Fijian community.
69. The offender told the author of the pre-sentence report that his use of alcohol was not
problematic, but Dr Stevens disagreed, referring to “a pattern of heavy social drinking”.
He has a conviction for driving with a high range prescribed concentration of alcohol
(in July 2017). Dr Stevens reported that the offender “does have a problem with abusing
alcohol in social settings but does not meet the criteria for alcohol use disorder”.70. The offender has used cannabis intermittently since the age of 14 but is not dependent on drugs. He has been abstinent since his arrest in December 2019.
71. The offender is aware that others consider his alcohol use to be excessive, and he has voluntarily commenced a six-week drug and alcohol program within the prison.
72. The offender’s fiancée and other character witnesses described the offender as
humble, generous, and kind-hearted; a “gentle giant” who is always the first to help
others. Several witnesses gave evidence that the offender is generally respectful, caring, and considerate towards women. During the trial, his rugby coach gave evidence that the offender is a leader within the team and is held in high regard.
73. Dr Stevens assessed that the offender is at low–moderate risk of sexual recidivism, but
the author of the pre-sentence report assessed him as at moderate risk. I consider that the risk of recidivism is low. As noted by Dr Stevens, the offences were atypical of the
offender’s usual pro-social behaviour, he has a supportive family and fiancée, and he
is willing to undertake treatment for alcohol abuse.
74. I am satisfied that the offender is remorseful. He told Dr Stevens that he regretted the events of 3 November 2019, and he showed an understanding that his actions had hurt the complainant emotionally and psychologically. He also appreciated the hurt caused to his fiancée. His fiancée and other character witnesses provided evidence that the offender is deeply remorseful.
75. In a letter to the Court, the offender apologised for the hurt that he has caused, acknowledged that the complainant was scared, and stated that, when released, he wants to use his life to give back to his community through his church and rugby club. He would like to marry his fiancée, raise a family, and lead a quiet life that involves working with young people to help them to improve their lives.
76. The offender knows that he will need to work hard to regain the respect of his family and community in Fiji. He is aware of the damage that he has caused to his relationship with his fiancée and is working to repair it. In these endeavours, the offender has been bolstered by his faith. Several referees attested to his recent spiritual growth. The reverend for the Fijian Methodist Church in Canberra stated that, during the past six
months, the offender had “completely transformed”, devoting himself to building his
spiritual life.
Comparable cases
77. The Court was referred to cases that were said to be somewhat comparable, including R v Al Abbassi [2017] ACTSC 239, R v Versteeg (No 2) (ACT Supreme Court, Burns J, 25 September 2020), Singh v The Queen [2015] ACTCA 65, and Singh v The Queen [2017] ACTCA 17 (the Singhs were co-offenders). The Crown conceded that the facts in Singh were more objectively serious than those in the present case.
78. The Crown also provided a table of sentences that summarised key features of cases that were said to be somewhat comparable.
Other sentencing considerations
79. In sentencing the offender, the Court is required to have regard to the matters in s 33 of the Crimes (Sentencing) Act 2005 (ACT), insofar as those matters are known and relevant. I believe that I have referred to the relevant factors above.
80. As with most offences of this type, the sentencing purposes of general deterrence, denunciation, and recognition of harm to the complainant assume prominence: R v Wyper [2017] ACTCA 59 at [114].
81. In this case, rehabilitation is also an important sentencing purpose. I am satisfied that the offender has excellent prospects of rehabilitation.
82. I am satisfied that the objective seriousness of the offence and the relevant sentencing purposes mean that a sentence of imprisonment must be imposed and that a substantial sentence of full-time imprisonment is necessary.
Sentences
83. I impose the following sentences.
(a) Count 3: sexual intercourse without consent (digital/vaginal penetration)—12 months’ imprisonment, from 9 June 2020 to 8 June 2021. (b) Count 4: act of indecency without consent (“dry humping”)—three months’ imprisonment, from 26 May 2020 to 25 August 2020.
(c) Count 6: sexual intercourse without consent in company with Vatanitawake (penetration of mouth with penis during penile/vaginal penetration by Vatanitawake)—three years and six months’ imprisonment, from 9 September
2021 to 8 March 2025.
(d) Count 9: sexual intercourse without consent in company with Macanawai (digital/vaginal penetration while Macanawai continued penile/vaginal penetration)—three years and six months’ imprisonment, from 9 March 2023 to
8 September 2026.
(e) Count 14: sexual intercourse without consent (digital/vaginal penetration)—15 months’ imprisonment, from 9 September 2020 to 8 December 2021. (f) Count 15: sexual intercourse without consent in company (digital/vaginal penetration in the loungeroom in the presence of co-offenders)—two years’
imprisonment, from 9 June 2021 to 8 June 2023.
(g) Count 16: sexual intercourse without consent (cunnilingus)—18 months’ imprisonment, from 9 December 2020 to 8 June 2022.
(h) Count 17: sexual intercourse without consent (penetration of mouth with penis)—18 months’ imprisonment, from 9 March 2021 to 8 September 2022.
84. The total sentence is six years, three months and 14 days’ imprisonment, from 26 May
2020 to 8 September 2026.
85. I fix a nonparole period of three years and one month’s imprisonment, from 26 May
2020 to 25 June 2023.
I certify that the preceding eighty-five [85] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Chief Justice Murrell.
Associate:
Date: 13 November 2020
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