R v Wasarua

[2024] NSWDC 643

District Court

New South Wales

Medium Neutral Citation:

R v Wasarua [2024] NSWDC 643

Hearing dates:

12/8/24-23/8/24, 1/11/24, 15/11/24

Date of orders:

15/11/24

Decision date:

15 November 2024

Jurisdiction:

Criminal

Before:

Bourke SC DCJ

Decision:

Convicted and sentenced to an aggregate term of imprisonment of 5 years 6 months with a NPP of 3 years 8 months (22/8/24-21/4/28).

I find special circumstances.

Indicatives:

Count 1 – 4 years 2 months with NPP 2 years 9 months

Count 2 – 5 years 3 months with NPP 3 years 6 months.

Catchwords:

Crime – Sentence – Sexual intercourse without consent

Legislation Cited:

Crimes Act 1900

Crimes (Sentencing Procedure) Act 1999

Cases Cited:

Commonwealth DPP v De La Rosa (2010) 79 NSWLR 1

Category:

Sentence

Parties:

NSW DPP – Crown
Timoci Wasarua - Offender

Representation:

Mr H Sutherland for Crown
Mr I Wallach for Offender

File Number(s):

22/332923

Publication restriction:

Statutory non-publication of the identity of the victim.

remarks on sentence

1. The offender, Mr Wasarua, stood trial between 12 and 26 August 2024, at the District Court at Parramatta on an indictment containing two counts of sexual intercourse without consent. On that latter date, the jury found the offender guilty of both counts.

2. I note that a sentence hearing was set for Friday, 1 November 2024 but the proceedings were only partly completed that day because counsel for the offender indicated that he may wish to tender some additional evidence and make further submissions. Although no adequate explanation was provided as to why these matters had not been attended to in a timely fashion, I directed that any further material be filed and served by 5 November 2024. Despite that direction, no material was received until the afternoon of 12 November, when supplementary written submissions were filed on behalf of the offender and, on the morning of 13 November 2024, two letters were filed and served.

3. It is, of course, open to me to ignore this material, given that it was filed well outside the timetable, and with no explanation as to why that was so. Although that course of action has some attraction, it seems to me that it may involve punishing the offender himself for the apparent inadequacies of his legal representation. I will, therefore, have regard to this additional material to which I will make reference later in these remarks.

4. The offender is to be sentenced for two offences under s 61I of the Crimes Act 1900. Each offence carries a maximum penalty of 14 years imprisonment and a standard non-parole period of seven years is specified. The maximum penalty and the standard non-parole period are important guide posts in the sentencing exercise to which I have had regard.

FACTS

5. Turning to factual matters, given that this was a finding of guilt after trial, the facts are for me to determine but must be consistent with the jury’s verdicts. Any aggravating matters need to be proved to the standard of beyond reasonable doubt, whereas any matters in mitigation need only be proved on the balance of probabilities.

6. In written submissions, the Crown set out a suggested summary of the relevant facts, taken from the evidence at trial. During the sentence proceedings on 1 November 2024, counsel for the offender suggested there may be some dispute about these suggested facts. However, in supplementary submissions of 12 November he indicated that the offender did not wish to make further submissions about those proposed facts, other than in relation to the offender’s state of mind at the time of the offences, a matter that I will consider in the course of these remarks.

7. I find the following facts for the purposes of sentence:

8. The offender and the victim first met through social media in October 2022. They then met in person in late October 2022 at the victim’s house and there was some intimate contact in the form of kissing and cuddling on this occasion.

9. The next occasion they met was on 2 November 2022, when the offender attended the victim’s home and they had consensual sexual intercourse.

10. They remained in contact after this. However, the victim began to have concerns about the offender being possessive and controlling by his calling her constantly and asking what she was doing and who she was talking to.

11. On the morning of Friday, 4 November, the victim, upon waking at about 7.30am, noticed that she had seven missed calls and text messages from the offender, including an assertion “I’m not your priority. Who are you with? Why aren’t you awake yet? You should be up and taking your son to school.”

12. I note that in his police interview the offender agreed that he had sent texts to the victim which asked questions such as who she was with, and that she did not like this. Due to this behaviour, the victim decided to end her casual dating arrangement with the offender.

13. There had previously been a discussion about the offender coming over to the victim’s home on Sunday, 6 November 2022. However, during that day the offender called the victim and told him that she did not want him to come over that night. Despite this, the offender caught a train to a railway station near the victim’s home and called her and said he was on his way. Although the victim said words to the effect of “I don’t want you to come”, the offender said something like, “Don’t worry, babe, I’m still coming.” The victim made a decision to pick up the offender from the railway station. She explained that this was because she was worried that if she did not pick him up he would find his way to her home anyway.

14. The victim further explained in her evidence that although she could have called the police if the offender turned up, she decided that she would use the opportunity to try to have an adult conversation with the offender about not wanting to see him again.

15. While in the car, the offender tried to touch the victim’s leg, to which she responded, “Don’t touch me.” And when the offender leaned towards her for a hug, she said, “Don’t touch me, I’m not ready.”

16. When they arrived at the victim’s home, she put her son to bed and then told the offender she did not want to see him again. This caused the offender to become teary. However, he persisted in trying to kiss the victim but she pushed him away. After this discussion, the victim said she was going to her bedroom and that the offender should sleep on the couch in the lounge room. After the victim left the lounge room, the offender was calling out to her, “Are you going to leave me here like this?”

17. Although the offender claimed in his police interview that the victim then invited him into her bedroom, saying, “This is the last time you’re gonna be seeing me”, this suggestion was not accepted by the victim, nor, I conclude, by the jury. I do not accept it either.

18. Rather, I find that the offender, who was wearing no shirt, entered the victim’s bedroom without invitation, got into her bed and initially went to sleep. The victim around this time was texting her friend and, consistently with her evidence, she sent to her friend messages indicating that the offender was asleep next to her and that she was “in a situation” and telling her friend that if she texted the word “Pineapple” then her friend should call police.

19. About one hour and 20 minutes later, the victim did send the code word “Pineapple” to her friend who did, in fact, call police. That coded word message was sent approximately one hour and seven minutes after an earlier message from the victim which acknowledged a message from her friend which said, “Okay praying for you!”, “I love you!”, “Be safe”.

20. It was during that period of about one hour that the offender sexually assaulted the victim. This commenced with the offender placing his leg over the victim and then trying to touch her breast. The victim grabbed the offender’s hand and said, “If you touch me again I will break your fucking hand.” However, the offender laughed, ignored this and pulled the victim towards him and again touched her breasts, despite the victim’s complaints that this hurt her due to past surgery on her breasts. The offender continued, however, to touch the victim, despite being told that she did not want him in her bed and despite her removing his hand from her body numerous times.

21. The offender eventually got on top of the victim, grabbing her face and trying to kiss her and also biting her to the face. At one stage, the victim said, “If you touch me again I will call the police on you”, a matter which the offender confirmed to police in his police interview. However, and notwithstanding this threat by the victim, the offender laughed and referred to the victim as his partner. After the victim left the bed for a short time to get a drink, she returned to find the offender naked and touching his penis, at which time he said words to the effect of “You’re so sexy, I just want to eat you, I just want to lick you.”

22. The victim, in response to this, said, “I literally just finished my period today, I don’t want you to touch me, I don’t want to have sex with you” and she added that his suggestion was “disgusting”.

23. At this time the offender was continuing to touch his penis and asked the victim to fellate him, which she rejected. After this, the offender kept trying to touch the victim’s body and breasts and eventually, and despite her protests, removed her shorts, held her legs back and licked her genital area, while the victim was struggling and telling him to stop. The victim tried to get up but the offender held her down, forced her legs back and had penile vaginal intercourse with her. This went on for some time, while the victim was physically struggling and telling the offender to stop and that it was hurting her. To this, the offender responded, “But you like it when I hurt you” and was thrusting harder into the victim’s vagina.

24. After some time, the offender, who was not wearing a condom, ejaculated inside the victim’s vagina. After these events, the offender rolled off the victim and refused to leave her apartment. The victim then made a number of audio recordings of her interactions with the offender, which became exhibits in the trial, and which are entirely consistent with the victim’s evidence that she did not want the offender in her apartment, that she did not want him to touch her, and that he was refusing to leave her bed and her apartment.

25. Those are the facts on which I proceed to sentence.

OBJECTIVE SERIOUSNESS

26. Turning then to the objective seriousness of the two offences. Firstly, the maximum penalty and standard non-parole period each mark these as offences that must be regarded as serious, as virtually all sexual offences are. In assessing the seriousness of the two offences, regard however must be had to their particular facts. There is no real hierarchy by which offences of this kind can readily be graded. Rather, it is important to have regard to all aspects, including the nature of the sexual intercourse, its duration, whether there was force used and/or pain inflicted and any other relevant matters.

27. There are, as I have said, two offences before the court, but they each involve some common factual aspects which are relevant to the assessment of their objective seriousness.

28. Firstly, they both were committed in the home of the victim and, indeed, in her own bed. Those were places where the victim had the right to feel and be safe and the offences violated those rights. While it is true that the offender originally entered the victim’s home with her consent, she certainly did not thereafter consent to being sexually assaulted as she was.

29. Secondly, I am satisfied that the offender had actual knowledge that the victim did not consent to his sexual acts.

30. In written submissions of 12 November 2024, counsel for the offender submitted that the court would find that the offender had an honest belief that the victim was consenting to sexual intercourse but that there was no reasonable grounds for that belief.

31. He further submitted that, “The proposed facts also highlight the belief held by the offender throughout that the victim was really consenting to sexual activity, despite her protestations to the opposite.”

32. This submission was said to be given support by parts of the offender’s police interview and also the statement by the victim that the offender “kept taking it as a joke”, when she said she wanted to break off the relationship and was telling the offender not to touch her.

33. The victim’s evidence, however, which I accept beyond reasonable doubt, was clear and firm. She told the offender more than once not to touch her, removed his hand from her body numerous times, and made other attempts to physically resist him. She was crying during the act of penile vaginal intercourse.

34. Her evidence is further supported by numerous messages that she sent, which are set out in trial exhibit number 3, to her friend, both before and after the sexual assaults occurred. There is also the offender’s police interview.

35. Counsel for the offender in supplementary submissions pointed in particular to the offender’s answers at questions 62, 63, 224, 248 and 309, in which he said that he did not take the victim’s protests seriously, and that she took off her pants and allowed him to have sex with her.

36. I have had regard to all of these responses. However, in my view, the victim’s evidence that she indicated to the offender that she did not want any sexual activity is, contrary to the submissions by counsel for the offender, given considerable support by numerous other parts of the offender’s police interview.

37. For instance, at question 54, he agreed that the victim told him early in the evening not to touch her. At question 64, he agreed that when sitting on the lounge he tried to kiss her and she said, “Don’t.” At question 116, he said she grabbed his hand and moved it away from her breast, saying that it hurt. At questions 143 and 315, he agreed that she said she would call the police if he touched her again. At question 152, he agreed that if a person threatens to call police then they are not joking. And at question 320, he agreed that the victim said, “Stop” when he was licking her genitals.

38. In conclusion, I am satisfied beyond reasonable doubt, based on the victim’s evidence, as well as the corroboration provided by parts of the police interview with the offender, that he had actual knowledge that there was no consent to his actions.

39. A third common feature of both offences is that they each involved the use of physical force, in that the offender was holding the victim down. Furthermore, in relation to count 2, the sexual intercourse caused the victim actual pain of which the offender was also aware, because the victim told him so in her efforts to resist him.

40. Fourthly, there was a considerable disparity in the physical size and strength of the victim as compared with the offender which placed her in a position of vulnerability.

41. In terms of the objective seriousness of count 1, I note the common factors to which I have just made reference. Furthermore, this offence involved actual skin on skin contact between the offender’s mouth and the victim’s genitalia. While there is no clear evidence of how long this went on for, I am satisfied that it was not fleeting, although it is unlikely to have gone on for long, given that the victim was protesting and attempting to resist. But, in any event, and as was said in R v Gavel [2014] NSWCCA 56, sexual offences of even short duration can have serious and long term effects.

42. I regard this offence as one approaching but just short of the mid-range of objective seriousness.

43. As to the count 2 offence, apart from the common features that I have already noted, this offence involved forceful penetration of the victim’s vagina which caused her pain, a matter which the offender was aware of based on the victim’s evidence, which I accept, as I have said, beyond reasonable doubt. Her evidence about this is also given further support by the offender’s answers at question 249 and 253 of his police interview.

44. This offence also involved the offender ejaculating inside the victim’s vagina with the increased sense of violation and the risk of pregnancy and/or disease that this involved. Again, the evidence is unclear as to the duration of this offence. However, I am satisfied that it must have gone on for quite some minutes during which, as I have found, the victim was attempting to resist, verbally and physically and while she was crying.

45. Given my acceptance of the victim as an honest and reliable witness, I am also satisfied beyond reasonable doubt that the count 2 offence also involved the offender squeezing her throat three times, with enough force to make her feel light headed.

46. Having regard to all of these matters as well as the common features relating to both offences, I regard this as an offence that sits within the mid-range of objective seriousness.

VICTIM IMPACT STATEMENT

47. The Victim Impact Statement was read to the court by the victim. It has not been suggested by the Crown that this should be treated as aggravating the offences and I do not approach it in that way. Rather, its contents confirm, in a very clear way, the devastating effects that would usually be the result of offences like this and which are likely to remain for many years, if not an entire lifetime.

48. In this case, those effects include an ongoing sense of fear and a lack of trust in others. Furthermore, in this case there is the fact that the assaults occurred on the victim’s birthday and at a time which coincided with her menstrual period, these being both ongoing triggering events that will remain with the victim for many years to come.

SUBJECTIVE MATTERS

49. I turn then to subjective matters relating to the offender. His subjective case has been placed before the court by means of written material and submissions made about it.

50. He is now aged 37 and has no other criminal history. The psychological report of Mr Awit notes that he had a fairly normal upbringing, with no real trauma or distressing events to speak of.

51. He completed high school to Year 12 and was initially employed on the family farm in Fiji before coming to Australia in 2013, with the intention of pursuing a career in rugby union and/or rugby league. These plans, however, had to be abandoned when the offender injured his knee and since then he has worked in various labouring jobs and with New South Wales Railways.

52. The offender married in 2019 and he and his partner have a five year old son. According to the psychological report, the pair separated in 2021. However, I note that I now have a letter from the offender’s ex-wife dated 12 November 2024 which indicates that they have recently reconciled. In that letter, she says that the offender is a kind and non-violent man but also says that, in her view, he is innocent and would “never commit such a crime”. While it can be accepted that that is her view, this evidence is totally unhelpful and contrary to the fact that it has been proved beyond reasonable doubt that the offender committed the two offences before the court. As noted in other parts of these remarks, those verdicts of the jury were in my view hardly surprising, given the strong Crown case.

53. The psychologist reached the conclusion that the offender currently meets the diagnosis for persistent Depressive Disorder and mild Gambling Disorder. He states that at the time of the “alleged” offences the offender was “likely” struggling with an Adjustment Disorder and mixed anxiety and depressive symptoms and that it would appear that the offender had been “struggling with his mood” in the lead-up to the offending period.

54. I have taken this evidence into account, although, given its rather vague terms, it is a matter to which I attach limited weight and it does not reduce, to any real degree, the offender’s moral blameworthiness which I consider to be high.

REMORSE

55. Turning to questions of remorse, there is no remorse, as the offender maintains his innocence and, according to the Sentencing Assessment Report, claims that he was “set up” by the victim, perhaps for financial gain. His denial of the offences continued during the sentence hearing on 1 November where, on my own observation, he repeatedly was shaking his head as the victim impact statement was being read out. This is despite, as I have said, the powerful Crown case against him which the jury clearly and understandably accepted.

REHABILITATION AND RISK OF REOFFENDING

56. Turning to prospects of rehabilitation, the offender has no previous criminal history, that being a matter which assists him. He has also, since being in custody, participated in the Remand Addictions program and Narcotics Anonymous. He retains the support of his wife and, as far as I know, other family members, and his general character is commented on positively in a letter from his aunt. These are positive matters, although the Sentencing Assessment Report suggests that he is an average risk of reoffending.

57. In assessing the offender’s prospects of rehabilitation and risk of reoffending, it is appropriate, in my view, to also take into account the offender’s complete lack of insight into his offences, which were committed in the face of clear opposition by the victim and which point, in my view, to a sense of entitlement.

58. I think there remains a material risk of his reoffending in a similar manner. I see his prospects of rehabilitation as guarded.

BAIL CONDITIONS

59. It is noted in the psychological report that the offender was subject to fairly strict bail conditions, which included a curfew, at least at some stages, while awaiting trial and that he was unable to attend his mother’s funeral in 2022, presumably because of his bail conditions. I take these matters into account as a form of punishment to which the offender has already been subjected.

MENTAL HEALTH

60. Also, and while it was not suggested that the principles in the well known case of Commonwealth DPP v De La Rosa (2010) 79 NSWLR 1 are engaged in this case, I have taken into account the diagnoses made by the psychologist which, in my view, will have an adverse impact on the offender’s experience of custody, as well the limitations on regular contact with his child and wife.

DETERMINATION

61. In determining the ultimate sentence, I have had regard to the important purposes of sentencing set out in s 3A of the Crimes (Sentencing Procedure) Act 1999, all of which in my view are of relevance.

62. I am satisfied for the purposes of s 5 of that Act that no penalty other than imprisonment is appropriate.

63. There are two offences and I intend to impose an aggregate sentence.

64. In determining that aggregate sentence, I have had regard to principles of totality.

65. It was submitted on behalf of the offender that the sentences for each offence should be totally concurrent because they arose out of one course of conduct. While I accept that the two offences were part of the one incident, and that the count 2 offence is the more serious, an outcome that involved total notional concurrency would be to ignore the fact that there were two sexual acts that were committed.

66. In my view, the sentence for count 2 would not appropriately comprehend and reflect the criminality for the count 1 offence. However, any notional accumulation should be minimal.

67. I have made a finding of special circumstances. That finding is based upon this being the offender’s first period of custody and the need for a significant period of supervision on parole.

68. Given that I am imposing an aggregate sentence, I must indicate the indicative sentences that would otherwise have been imposed. They are as follows:

69. The indicative sentence for count 1 is a term of imprisonment of four years, two months and a non-parole period of two years, nine months.

70. For count 2, the indicative is five years, three months and a non-parole period of three years, six months.

71. Instead, I impose an aggregate head sentence of five years, six months.

72. I impose a non-parole period of three years, eight months.

73. Each of those will date from 22 August 2024. The head sentence, therefore, will expire on 21 February 2030; the non-parole period on 21 April 2028.

74. Mr Crown, Mr Wallach, anything to raise about any of those numbers or anything else?

75. SUTHERLAND: Not from the Crown’s perspective, no, your Honour.

76. WALLACH: And not for my part either, your Honour.

77. HIS HONOUR: The links will be terminated.

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Decision last updated: 18 February 2025