R v Collins (extracts)
Let me relate the facts. Were they put into a novel or portrayed on the stage, they would be regarded as being so improbable as to be unworthy of serious consideration and verging at times on farce. At about 2 o'clock in the early morning of Saturday 24th July of last year, a young lady of 18 went to bed at her mother's home in Colchester. She had spent the evening with her boyfriend. She had taken a certain amount of drink, and it may be that this fact affords some explanation of her inability to answer satisfactorily certain crucial questions put to her.
She has the habit of sleeping without wearing night apparel in a bed which is very near the lattice-type window of her room. At one stage on her evidence she seemed to be saying that the bed was close up against the window which, in accordance with her practice, was wide open. In the photographs which we have before us, however, there appears to be a gap of some sort between the two, but the bed was clearly quite near the window.
At about 3.30 or 4 o'clock she awoke and she then saw in the moonlight a vague form crouched in the open window. She was unable to remember, and this is important, whether the form was on the outside of the window sill or on that part of the sill which was inside the room, and for reasons which will later become clear, that seemingly narrow point is of crucial importance.
The young lady then realised several things: first of all that the form in the window was that of a male; secondly that he was a naked male; and thirdly that he was a naked male with an erect penis. She also saw in the moonlight that his hair was blond. She thereupon leapt to the conclusion that her boyfriend with whom for some time she had been on terms of regular and frequent sexual intimacy, was paying her an ardent nocturnal visit. She promptly sat up in bed, and the man descended from the sill and joined her in bed and they had full sexual intercourse. But there was something about him which made her think that things were not as they usually were between her and her boyfriend. The length of his hair, his voice as they had exchanged what was described as 'love talk', and other features led her to the conclusion that somehow there was something different. So she turned on the bed-side light, saw that her companion was not her boyfriend. So she slapped the face of the intruder, who was none other than the Appellant. He said to her, "Give me a good time tonight", and got hold of her arm, but she bit him and told him to go. She then went into the bathroom and he promptly vanished.
The complainant said that she would not have agreed to intercourse if she had known that the person entering her room was not her boyfriend. But there was no suggestion of any force having been used upon her, and the intercourse which took place was undoubtedly effected with no resistance on her part.
Collins was seen by the police at about 10.30 later that same morning. According to the police, the conversation which took place then elicited these points: He was very lustful the previous night. He had taken a lot of drink, and we may here note that drink (which to him is a very real problem) had brought this young man into trouble several times before, but never for an offence of this kind. He went on to say that he knew the complainant because he had worked around the house. On this occasion, desiring sexual intercourse - and according to the police evidence he had added that he was determined to have a girl, by force if necessary, although that part of the police evidence he challenged - he went on to say that he walked around the house, saw a light in an upstairs bedroom, and he knew that this was the girl's bedroom. He found a step ladder, leaned it against the wall and climbed up and looked into the bedroom. What he could see inside through the wide open window was a girl who was naked and asleep. So he descended the ladder and stripped off all his clothes, with the exception of his socks, because apparently he took the view if the girl's mother entered the bedroom it would be easier to effect a rapid escape if he had his socks on than if he was in his bare feet. That is a matter about which we are not called upon to express any view, and would in any event find ourselves unable to express one.
Having undressed, he then climbed the ladder and pulled himself up on to the window sill. His version of the matter is that he was pulling himself in when she awoke. She then got up and knelt on the bed, she put her arms around his neck and body, and she seemed to pull him into the bed. He went on,
The police officer said to the Appellant,"I was rather dazed because I didn't think she would want to know me. We kissed and cuddled for about ten of fifteen minutes and then I had it away with her but found it hard because I had had so much to drink".
It was alleged that he then said,"It appears that it was your intention to have intercourse with this girl by force if necessary, and it was only pure coincidence that this girl was under the impression that you were her boyfriend and apparently that is why she consented to allowing you to have sexual intercourse with her".
Thereupon the officer said to him - and he challenges this –"Yes, I feel awful about this. It is the worst day of my life, but I know it could have been worse".
"What do you mean, you know it could have been worse?",
to which he is alleged to have replied
Then he made a statement under caution, in the course of which he said"Well, my trouble is drink and I got very frustrated. As I've told you, I only wanted to have it away with a girl and I'm only glad I haven't really hurt her".
In the course of his testimony, Collins said that he would not have gone into the room if the girl had not knelt on the bed and beckoned him into the room. He said that if she had objected immediately to his being there or to his having intercourse he would not have persisted. While he was keen on having sexual intercourse that night, it was only if he could find someone who was willing. He strongly denied having told the police that he would, if necessary, have pushed over some girl for the purpose of having intercourse."When I stripped off and got up the ladder I made my mind up that I was going to try and have it away with this girl. I feel terrible about this now, but I had too much to drink. I am sorry for what I have done."
Deliveryman jailed for sex with sleeping woman
Date August 31, 2011
Malcolm Brown
A 22-year-old takeaway delivery driver who had sexual intercourse without consent with a half-asleep women in a house to which he was delivering a takeaway was sentenced to three years' imprisonment this afternoon.
Amit Hamal, 22 was sentenced by District Court Judge Laura Wells from the date of his arrest on July 19 last year and given an 18-month non-parole period to expire on February 18 next year.
Judge Wells said the maximum penalty for the offence was 14 years in jail with a seven-year non-parole period but she took mitigating circumstances into account.
These were Hamal's youth, his interest in training and rehabilitation while on remand, his wife's support of him, his ambition to study accountancy and his good prospect of rehabilitation.
The court heard that Hamal had been delivering Indian food to the woman's house but by the time he had got there the husband, who had left the door ajar, had fallen to sleep in the lounge.
He had walked in past the women's bedroom, noticed she was asleep, and proceeded to remove her pants and have sexual intercourse.
The woman had spoken to her husband about it the next morning. He had denied he had been the one who had done it and said she must have had a "vivid dream".
Hamal had called the house later that day and, during the conversation, had suggested they they become sexual partners. Then she realised that she had been sexually assaulted.
She and her husband reported the offence and a vaginal swab had confirmed the identity of Hamal.
During the trial, Hamal said that the sex was consensual and claimed the woman had initiated the encounter by pulling him towards her.
The jury found Hamal guilty of the offence on June 29 this year.
A 22-year-old takeaway delivery driver who had sexual intercourse without consent with a half-asleep women in a house to which he was delivering a takeaway was sentenced to three years' imprisonment this afternoon.
Amit Hamal, 22 was sentenced by District Court Judge Laura Wells from the date of his arrest on July 19 last year and given an 18-month non-parole period to expire on February 18 next year.
Judge Wells said the maximum penalty for the offence was 14 years in jail with a seven-year non-parole period but she took mitigating circumstances into account.
These were Hamal's youth, his interest in training and rehabilitation while on remand, his wife's support of him, his ambition to study accountancy and his good prospect of rehabilitation.
The court heard that Hamal had been delivering Indian food to the woman's house but by the time he had got there the husband, who had left the door ajar, had fallen to sleep in the lounge.
He had walked in past the women's bedroom, noticed she was asleep, and proceeded to remove her pants and have sexual intercourse.
The woman had spoken to her husband about it the next morning. He had denied he had been the one who had done it and said she must have had a "vivid dream".
Hamal had called the house later that day and, during the conversation, had suggested they they become sexual partners. Then she realised that she had been sexually assaulted.
She and her husband reported the offence and a vaginal swab had confirmed the identity of Hamal.
During the trial, Hamal said that the sex was consensual and claimed the woman had initiated the encounter by pulling him towards her.
The jury found Hamal guilty of the offence on June 29 this year.
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