Gavi's Court Case

Arek Shaun Ernesto (removed full name), you have pleaded not guilty to one count of committing unlawful sexual misconduct (actual penalty and charge without precedent) by a person in authority contrary to s.49(5) of the Criminal Law Consolidation Act 1935.  This offence carries a maximum penalty of 10 years imprisonment.

By an information for arraignment on 28 August 2017 you were charged with two counts. Under count 1 you were charged with committing unlawful sexual misconduct with a person unable to refuse the nature or consequences of the sexual intercourse contrary to s.49(6) of the Criminal Law Consolidation Act.

I note in particular that at line 525 and following of that record you were asked questions about the level of sexual misconduct of the complainant, AT.  You said that there was no sexual activity involved, but then said at line 530 that the point of you requesting employees to kiss your posterior (buttocks) was for 'sexual gratification' in a sadomasochistic level. Adding to this, your pants were down so that your buttocks were exposed. Your position of power in this case is particularly disturbing, as there is a recording of you admitting that if AT did not 'kiss your ass, you will fire her and make her ass homeless'. In addition to this AT was fired even after this incident anyway. When AT applied for further jobs you went out of your way to post the pictures of her kissing your buttocks online and even went so far as to provide it to potential employers. While it is uncertain at this stage, the prosecution has filed a petition for this to be charged as revenge porn. Following the making of this admission you were charged with criminal offences.  I am therefore unable to accept your counsel's submissions in relation to this matter not being sexual or not being used to satisfy your own desires.

The complainant in this matter is AT.  At the time of the offending she was 17 years of age, which is considered legal fortunately for you.  The background material contained within the prosecution thus far shows that at the relevant time AT had been under your employment and also housed by you  You knew that AT was completely reliant on you and regularly exploited this to make her kiss and lick your buttocks, often in public and often in front of a camera.  You had also been in a relationship with AT's boyfriend (JS) for approximately 3 months and also provided accommodation to him as well. You engaged in similar acts with JS  including the very disturbing act you defined in exhibit E (video evidence) as a 'human bidet" in which you would defecate and request JS to provide his face as toilet paper, all under the threat that both AT and JS would be fired and effectively made homeless.

In an unrelated matter, you also claim to have nothing to do with another woman (KL) who was under your employment. While this woman has not pressed charges against you (likely as a result of a civil suit you launched against her) KL was also pressured into giving you oral sex a number of times and while her job consisted of modeling, KL was often sent home after giving you oral sex which is little more than glorified prostitution, something she complained about to you many times and you responded by demanding more of the same. You also had sexual relations with her boyfriend as well though this appears to be above board in relation to the rest of the matters. The astonishing thing about this part of the case is you deny sleeping with this woman but acknowledge receiving oral sex from her. Yet if I'm to believe your story there is a rather baffling situation which I cannot believe is anything other than dishonesty on your part. This woman became pregnant and underwent an abortion, the product of which was sent to Forensic Science SA for analysis. The results indicate that it is 2.1 billion times more likely that you are the father of the foetus than any unknown male. Something you laughed at while read out in court and then remarked "Well it does come from inside my dick, my cum has superpowers, got her pregnant from thrusting in and out her mouth". This is obviously sarcasm and you were intending to make her uncomfortable as she was in court at that time.

Furthermore when you found out that KL was pregnant you said you would pay for the abortion. KL at first was unsure if she wanted to keep the baby or not. You then proceeded to state that she has no say in the matter and if she doesn't have the abortion you would cut off any and all support to her. KL then reluctantly has the abortion and in an act I can only describe as totally cruel, you then told her that you think all people that undergo such a procedure are murderers. While KL was in a fragile state following this incident you also hosted a large party at your mansion which was attended by over 200 people and also served as a showcase for models. In keeping with your disturbing acts above and knowing full well that KL was both hurt and depressed, you forced her out on the runway first and had her kiss your buttocks for what is established to be 3 minutes in front of everyone at the party, something you defended 'as a gimmick to keep people watching'.

(Lots of needless legal talk cut out)

I turn to your personal circumstances.  You are 32 years of age and you have 6 younger brothers and 5 younger sisters.  Your parents came to  Australia as refugees from Lebanon. You were born in Puerto Rico and your brothers and sisters were born in Australia, Turkey and the United States.  Both of your parents were involved in politics with your father being considerably wealthy and was a highly educated man of high intelligence.

In Australia your parents worked very hard in educated tasks.  They have, through their efforts, paid for your education at a private primary school and then at a very prestigious private college.  You have had a privileged upbringing in the sense that your parents put you through a very prestigious school at great cost to them. Your parents sacrificed a lot for both you and your siblings.

After your education at school you completed courses in biology, chemistry, math and physics, forensics and International Studies with honors. You then completed medical school while completing a masters degree in Psychiatry. Perhaps unsurpsingly, you only worked in this field for a couple of years before your license was terminated.

You are and you have always been a hard worker.  You performed well academically at school and at university. You did not rebel outside of an incident in 2000.  You have always been involved in a lot of community work.  When you were at university you were also supporting yourself and working.  You were president of the Turkish and Lebanese student association.

You were raised Muslim and until the age of 15 identified as such. Following the aforementioned incident in 2000 you left Islam at great cost to your personal life and ended up working several jobs to support yourself after being thrown out of home by your father for religious reasons. You worked in Target in customer service while in high school and then for a call center for Telstra. You then worked at a strip bar (a bar which I'm told you now own) in order to support yourself during University because you claim it paid the bills. Your father died in 2007 and you managed to mend your relationship with him just prior to this thus you were included back in the will.

I turn then to sentence.

The fixing of sentence for your offending has caused me extraordinary anguish due to this being without precedent (in particular when it pertains to revenge porn).  For your first offending I impose a penalty of 4 months imprisonment. This would have been about 20 times higher had there been actual testimony in court from the witnesses, however in this day and age money unfortunately speaks louder than words and you were able to effectively silence any possible testimony that would be made against you.

Your counsel put to me lengthy and detailed submissions in support of your contention that any sentence that I am to impose upon you should be suspended or should be served under home detention arrangements pursuant to s.33BB of the Criminal Law (Sentencing) Act.  I have received a home detention inquiry report dated 8 August 2017, which I have taken into account.
Following the decision of the Court of Criminal Appeal in R v Dell [2016] SASCFC 156, particularly at [45] and following, I am required first to consider whether you are a suitable person to serve the sentence on home detention and, if so, whether having regard to the full range of sentencing considerations, the sentence should be suspended and an order made that you serve the sentence on home detention.

Having regard to the material before me and the submissions made to me, there seems little doubt that you may be a suitable person to serve a sentence on home detention.  The issues for my consideration here are the general sentencing considerations of punishment, denunciation and general deterrence.  In addressing those matters, I must take into account the seriousness of the offence for which you are to be punished.  In addressing that question, I need to address the fact that you have engaged in sexual intercourse and some rather disturbing activity with a number of people who you have a clear position of power over.

I have given careful consideration to that matter. There are aspects of the safety of the community to be taken into account but I consider that because of the objective seriousness of your particular crime, there are considerations here militating against a home detention order that far outweigh any view that I have about the fact that you may not be an identifiable threat to the safety of the community. The safety of your workplace is another issue, however that is beyond my judicial powers.

I consider that those considerations give rise to a level of seriousness which militates against the exercise of a discretion to order any sentence to be served on home detention.

Having regard to the matters that have been put to me by your counsel and having particular regard to your lack of previous convictions, the lack of testimony against you which you effectively silenced through civil suits (although there is a lot of evidence), most importantly, because your medical license has been revoked and so it is fairly unlikely that you will reoffend at least in the manner listed above with patients (your own businesses are again, beyond my judicial powers unless direct testimony is given. I will suspend your sentence if you enter into a $100,000 bond to be of good behaviour for 12 months.

I take it your client is prepared to enter such a bond?
MR ERNESTO:             Yes.
HIS HONOUR:           Pursuant to s.52E of the Controlled Substances Act I order forfeiture of the drugs and the paraphernalia seized by the police. The "Kiss my ass" folder will be returned as that doesn't appear to contain anything illegal.
Mr Ernesto, you understand you will be on a suspended sentence for the next 12 months?
PRISONER (AREK ERNESTO):                 Of course.
HIS HONOUR:           If you stay out of trouble during that time you won't have to serve that sentence that I imposed today. But if you get into more trouble, particularly trouble of a similar kind, you can be brought back here and be ordered to serve that sentence together with whatever sentence you get for the breaching offence.  Do you understand?
PRISONER:                Indeed, what happens in relation to the case against (name removed)

HIS HONOUR: You are free to follow through with that, if what you are alleging is proven there is significant chance in this entire matter being dropped, in which case you can seek reparations from the state.

PRISONER:  (AREK ERNESTO): Then by all means, I accept.
BOND ACKNOWLEDGED
HIS HONOUR:           Mr Clarke will no doubt go through those conditions with you afterwards.  You need to read them very carefully and strictly comply with them. Your workers are not slaves nor are they sexual toys, stop treating them as such and you should stay out of trouble. You will however be held at the Adelaide Remand Centre until Friday the 29th of September due to a separate charge.
ADJOURNED 9.12 A.M.