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Anger after Court of Appeal sets aside Tomas Getachew's rape conviction
A COURT has scrapped the conviction of a man accused of raping a woman who had passed out drunk, because he might have thought she wanted sex.
This is despite evidence that the woman had twice rejected his advances before falling unconscious.
The Court of Appeal set aside Tomas Getachew's rape conviction and ordered a fresh trial because jurors were not told to consider that he might have believed he had the woman's consent.
One of the three appeal judges disagreed with the decision to order a new trial, which has stunned the woman and angered women's rights and sentencing campaigners.
Centres Against Sexual Assault convenor Carolyn Worth said: "These types of appeals would not encourage women to report rapes. Why would someone report when the spirit of the legislation is manipulated in this way?"
Prosecutors are now considering a High Court appeal against the ruling.
Getachew, 28, was accused of raping the woman as they shared a mattress at a mutual friend's house in Melbourne in June 2007.
The County Court was told the woman, who was drunk on champagne and bourbon after a night out, had twice pushed him away before passing out.
She later awakened to find him raping her, it was alleged.
Getachew allegedly told the victim he had pressed against her for warmth and later told a friend the woman had "pushed back" into him, causing penetration.
The judge jailed Getachew for at least 33 months.
But the Court of Appeal ruled there was an oversight in the trial judge's instructions to the jury.
Rape is proved if the jury finds the accused knew the victim had not consented, or might not be consenting.
Justices Peter Buchanan and Bernard Bongiorno said the judge failed to properly explain this rule to the jury.
This meant jurors hadn't considered the possibility Getachew might have thought the woman was awake and, through her lack of resistance, consenting.
Justice Lasry agreed there had been problems with the instructions to the jury, but said there had been no miscarriage of justice because there was no reasonable possibility that the verdict would have been different.
Not only had the victim rejected Getachew's overtures, there was no action by her that might have led him to conclude she was consenting, and no evidence before the jury that might have raised the issue of a belief by him that she was consenting.
The woman, in her late 20s, was said to be upset.
"She is a courageous girl but this has hit her hard," a friend said.
Crime Victims Support Association president Noel McNamara said the outcome was out of step with public sentiment.
"Nobody's disputing that this woman said 'no' but somehow the court says, at the 11th hour, maybe he didn't know that because maybe he thought she wasn't sleeping," he said.
Getachew was freed on bail last week.
HOW THE COURT OF APPEAL RULED
Justice Peter Buchanan:
"There was no demur on the part of the complainant.
"The jury may have concluded that there was no protest by the complainant because she was asleep.
"Equally, if they had been properly instructed, the jury may have concluded that Getachew thought that the complainant might have fallen asleep but accepted that it was a reasonable possibility that Getachew believed that she had finally consented.''
Justice Bernard Bongiorno:
"The Crown had to prove that the accused was aware at the time of penetration that the complainant was not consenting or might not be consenting to that act.
"The direction given to the jury by the trial judge ... effectively precluded their consideration of this issue according to law.''
Justice Lex Lasry:
"I am not able to agree that (there was) any miscarriage of justice in the applicant's trial.''
"The complainant had made clear her rejection of the applicant on two occasions before this incident occurred,
"When penetrated by the applicant, the complainant was in a position consistent with her being asleep,
"There was no positive conduct by the complainant which might have led Getachew to conclude that his sexual approach was now being welcomed.''
Herald Sun (15-6-2011)
Rapist Tomas Getachew Jailed After 'Ugly, Vicious' Attack
A MAN who raped a sleeping woman months before he went on to commit a series of indecent assaults during
schoolies week will serve at least two years and nine months in jail.
Tomas Getachew, 26, was jailed in the Victorian County Court today for raping a 25-year-old woman he met
at a social function in June 2007.
Getachew had attacked the woman at a friend's house while she was sleeping and intoxicated. She awoke to
find him assaulting her, the court heard.
A jury found him guilty in April of rape.
Today, Judge Duncan Allen jailed him for four years and nine months. He must serve a minimum two years and nine months.
Five months after committing the rape, Getachew, formerly of Clayton, assaulted several victims during
schoolies week at Lorne in Victoria's southwest. He was working as an unlicensed bouncer at a hotel when
he followed the victims down to the beach and assaulted them.
He was jailed in the Geelong Magistrates Court for one year on several charges, including three of indecent assault.
He has already served his sentence on those counts.
The court heard Getachew migrated to Australia in 2002 as an Ethiopian refugee.
Judge Allen took into account his severe psychiatric illness and the impact this had on his lack of
remorse and denial of guilt.
The judge described the rape as opportunistic, "ugly and vicious" on a vulnerable woman.
But he said Getachew's state of mind reduced his moral culpability.
Judge Allen said Getachew would have a good chance of rehabilitation if he received proper treatment.
Man Who Claimed to be Schoolies Bouncer is Jailed
A CONVICTED schoolies sex offender will spend the next 12 months behind bars after his weekend arrest.
Tomas Getachew, 25, was yesterday sentenced to a year and nine days' imprisonment for assaulting several
young women while pretending to be a Lorne pub bouncer last year.
Magistrate Rosemary Carlin said the defendant failed to show any remorse for his "reprehensible" Behaviour,
the Geelong Magistrates' Court heard.
Police arrested Getachew at the weekend after he failed to appear for sentencing last Wednesday.
Yesterday, Ms Carlin handed Getachew a non-parole period of six months for indecent assault and fined
him $1000 plus $300 witness costs for acting as a crowd controller.
The defendant will be on the sex offenders list for life and must give a DNA sample, despite refusing
the procedure. Ms Carlin also sentenced Getachew to two months' jail, suspended for 18 months, on a charge of recklessly causing injury.
On December 4, 2007, Getachew forced himself on several females aged between 17 and 23 on the Lorne
foreshore and at private party during schoolies week.
Police prosecutor Sen-Constable Rob Allen said the defendant forcefully kissed and sucked the necks
of several women, before entering a bedroom and lying on top of a woman, pinning her to the bed.
The victim protested but he told her: "I'm a bouncer at the Lorne pub and you have to do what I say."
"There is no real excuse for your conduct on the night," Ms Carlin said.
"These women were available for your sexual pleasure despite what their wishes were."
Getachew interrupted Ms Carlin's summary, saying: "Your honour, that hasn't happened at all."
Ms Carlin answered: "Mr Getachew, I've already found the charges proven, be quiet. Nevertheless your
conduct on the night was completely reprehensible."
Last month Getachew had an application to change his plea refused after initially
pleading guilty to the assaults.
Sex Offender Skips Court Again
SCHOOLIES sex offender Tomas Getachew mocked the Geelong court for the fourth time when he failed to
appear for sentencing yesterday.
Getachew, 25, claimed he could not attend Geelong Magistrates' Court because of food poisoning and told
the court he would fax through a doctor's certificate.
Magistrate Rosemary Carlin ordered a warrant for Getachew's arrest when the certificate had not arrived by 4pm.
Getachew, of Richmond, had pleaded guilty to six counts of indecent assault and one count of being an unlicensed crowd controller in May.
But he later applied to change his plea to not guilty, claiming he was not "exactly aware" of what he was pleading to.
Ms Carlin refused his application late last month.
Getachew spent a night in custody in early August after he arrived late to a court appearance for the third time.
Police prosecutor Senior Constable Rob Allen said at the time the defendant was clearly thumbing his nose
at the court and manipulating the system to suit himself.
His offences occurred on December 4 last year when he worked as a bouncer at a Lorne pub throughout Schoolies Week.
The defendant forcefully kissed and sucked the necks of several girls and put his hand up one girl's dress on the Lorne foreshore.
He also attended a house party with the Schoolies students where he entered a bedroom as a girl slept and began to forcefully kiss her.
He told the girl; "I'm a bouncer at the Lorne pub and you have to do what I say."
Bouncer Admits Schoolies Sex Assault Rampage
A Victorian pub bouncer has pleaded guilty to a five-hour sexual assault rampage at schoolies celebrations last year.
Richmond man Tomas Getachew, 24, faced Geelong Magistrates' Court yesterday over six counts of indecent assault after crashing a series of teenage parties in Lorne, near Geelong.
Police prosecution said that while in town to work as a crowd controller, Getachew entered a teenager's hotel unit uninvited and wearing his security badge.
"Getachew closed the curtains and started drinking shots of vodka," the Geelong Advertiser reported Senior Constable Rob Allen as saying.
"He stood next to two young women and began looking down the front of their tops and making them feel uncomfortable.
"He then started nibbling one girl's neck, rubbed his hand down her back and squeezed her bottom before she moved away.''
Getachew then allegedly grabbed another girl and tried to drag her into a bedroom before she escaped.
The prosecutor said the crowd controller then later appeared at the foreshore to continually harass the group.
He tightly hugged one girl, kissing and sucking on her neck before her friends dragged him away.
Then, he lifted another girl off the ground, putting his hand up her dress and touching her underwear after he was told to put her down.
Sen-Constable Allen said that an hour later Getachew would continue his inappropriate behaviour after then crashing a private house party.
He once again started touching girls, before entering a bedroom, removing his jumper and jumping on a sleeping girl.
"(He) began kissing her aggressively and putting his tongue down her throat," Sen-Constable Allen said.
"He told her, 'I'm a bouncer at the Lorne pub and you have to do what I say'."
Getachew is also charged with operating without a crowd controller's licence.
His lawyer asked for a trial delay so his client could undergo a psychological exam.
The case was adjourned until July 17.
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