Director of Public Prosecutions v Faletutulu (a pseudonym)
[2024] VCC 1163
•26 July 2024
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JOSEPH FALETUTULU (A PSEUDONYM) |
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JUDGE: | HER HONOUR JUDGE RIDDELL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 26 July 2024 | |
DATE OF SENTENCE: | 26 July 2024 | |
CASE MAY BE CITED AS: | DPP v Faletutulu (a pseudonym) | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 1163 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW --- SENTENCE
Catchwords: Sexual Assault of a Child under 16 --- Plea of Guilty --- Two complainants --- Granddaughters --- Breach of Trust --- Victim impact --- Impact on wider family --- Abstinence from Alcohol --- Older offender with medical conditions
Legislation Cited: Sex Offenders Registration Act 2004
Cases Cited:DPP v Dalgleish(a pseudonym) [2017] VSCA 360 --- DPP v Toomey [2006] VSCA 90 --- Bromley v The Queen [2018] VSCA 329 ---
Boulton v The Queen (2014) 46 VR 308
Sentence: 2 Year Community Correction Oder --- Sex Offender Program --- Unpaid Community Work --- Sex Offender Registration for 15 years
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms M. Arceri | Office of Public Prosecutions |
| For the Accused | Mr T. Danos | Chester Metcalfe & Co Barristers and Solicitors |
HER HONOUR:
1Joseph Faletutulu,[1] on 14 June 2024, you pleaded guilty to two charges of sexual assault of a child under the age of 16.
[1] A Pseudonym
2The two victims of your offending are your granddaughters, Mollie Faletutulu[2] and Catherine Faletutulu.[3] At the time of the offending against Mollie, which was between February and March 2020 and again in the early part of 2021, she was between the ages of 14 and 15.
[2] A Pseudonym
[3] A Pseudonym
3At the time of the offending against Catherine in March 2020, she was 10 years of age.
4You were between the ages of 63 and 65 at the time of the offending and you are now 68.
5Your grandchildren were placed in your care and your partner, Ms Pauline Faletutulu,[4] by the Department of Families, Fairness and Housing in mid-2019 and this offending occurred when the girls were living with you.
[4] A Pseudonym
Charge 1 - Sexual assault of a child under 16 against Mollie Faletutulu
6On an occasion between 29 January and 5 February 2020, you were drunk and 14-year-old Mollie was preparing your meal before bed.
7You asked her to sit next to you at the dining table. Once she sat down, you rubbed your hand up and down her thigh towards her hip. Mollie did not move out of fear that if she did, this would anger you.
8On an occasion between 29 January 2021 and 28 March 2021, you had again been drinking and asked Mollie to come out of her room and clean the kitchen. Mollie cleaned the kitchen and then made you some food.
9You then asked her to come over to you. You rubbed your hand down her back and over her buttocks, stopping when you reached the top of her leg. You also squeezed the top of her thigh and pulled her closer to you while you asked her whether she loved you.
10Mollie removed your hands from her and retreated to her bedroom.
Charge 2 – Sexual assault of a child under 16 against Catherine Faletutulu
11One weekend in March 2020, Catherine was lying awake on the top of her bed in her bedroom at your house.
12You entered her room and laid next to her on her bed, underneath the blankets.
13You rubbed her stomach and moved your hand underneath her underwear. You then rubbed her vagina for a few seconds before you removed your hand from her pants.
14She rolled over and began to cry and retreated to the bathroom where she continued to cry.
15On 26 March 2020, Catherine informed her mother, Tracey Betham[5] about your offending over Snapchat. Ms Betham attended your home and informed your wife about what Catherine had told her of your actions.
[5] A Pseudonym
16The following morning, Ms Betham again attended your home with Catherine’s father, Kenny Faletutulu.[6] Kenny is your son and he and Ms Betham confronted you. At that point, you denied the offending.
[6] A Pseudonym
17Ms Pauline Faletutulu recalls a different occasion when offending was discussed with you. On that occasion, you again denied any offending had occurred.
18In mid-late 2020, Catherine disclosed your offending to her aunty, Denise Faletutulu.[7]
[7] A Pseudonym
19Police attention was ultimately brought to the matter through notification from the Department of Families, Fairness and Housing and as a result of Catherine making a disclosure at school.
20Both Mollie and Catherine provided evidence by way of their VAREs on 13 May 2021.
21On 3 November 2021, you participated in a police interview. That interview was by appointment. You again denied the allegations made by Catherine Faletutulu and made 'no comment' in relation to Mollie.
22The matter has had a long history. You were charged in September 2022 and the matter then proceeded through the Magistrates’ Court and to this Court in June of 2023.
23It was listed for a Ground Rules Hearing and Special Hearing before me on 11 June 2024. A third granddaughter elected not to participate in the process. Discussions ensued and your Counsel sought a Sentence Indication on your behalf.
24Your matter was listed for Sentence Indication Hearing on 13 June 2024. You accepted this indication and were arraigned and pleaded guilty on 14 June 2023.
Sentencing Principles
25The maximum penalty for each of these offences is 10 years' imprisonment, Further, Parliament has determined that these are standard sentence offences, with a standard sentence of 4 years' imprisonment.
26Sexual crimes against children are inherently serious. They violate the basic norms of civilised behaviour. They strike at the value the community places on the need for care of young children, in particular, by those in positions of power over them. That is especially so where the offending involves a breach by someone in a position of care or trust, particularly a family member.[8]
[8] DPP v Dalgleish(a pseudonym) [2017] VSCA 360
27Courts and the community far better understand the immediate but also the far-reaching consequences of this type of offending. Where, as here, offences are committed against young girls on the brink of or in the early stages of puberty, it is likely to be confronting and confusing, impacting their identity, their self-confidence and their capacity for trust.
28Sentencing courts must send a message of denunciation. Sentences must deter others from offending in this way and must seek to protect the community and in particular, any other child or young person, from being abused by a person in a position of trust. The sentence I impose must demonstrate to others the consequence of violating such laws. [9]
[9] DPP v Toomey [2006] VSCA 90; Bromley v The Queen [2018] VSCA 329
Objective Gravity
29Assessing your offending, I note the following aggravating features.
30These two children were your granddaughters. Children are entitled to expect that their grandparents will be an added layer of love, kindness and care to them. They should have been able to expect that from you. Tracey Betham has written a victim impact statement for today. She writes that your grandchildren loved and adored you. You were meant to protect them, but you did not.
31These two grandchildren had specifically been placed into your care. Ms Betham placed them in your care and you were to care for them because she and her partner, your son, were ‘in a dark place’.
32Therefore, not only did you have the general level of trust, but you had the trust of authorities that you were a person who held out as being a proper and appropriate carer. You breached the trust of your granddaughters, of your son, of your daughter-in-law. It is clear from that situation that your granddaughters were already in a situation where their parents could not care for them and you should have done so. They should have been able to turn to and rely on you for what that they needed.
33You breached their trust by your offending. Not only that but you breached the trust of their parents and no doubt of your extended family. Offending like this has a ripple effect, impacting families in very real ways.
34The breach of trust is the most significant feature of the offending here. It elevates the seriousness of your conduct.
35The fact that you offended against multiple victims also makes this more serious.
36Your offending occurred in what was their home – where they were entitled to feel safe. In the case of Mollie it was repeated.
37It occurred over a protracted period of time.
38As against those facts, the offending in relation to Mollie was relatively brief – though as I have said was repeated. The touching occurred in a more public area of the house. It was touching outside the clothing. Without detracting in any way from her experience, it is offending which I assess as being at the lower level of seriousness for this type of offending.
39The same cannot be said in relation to Catherine, that offence is more serious. She must have felt very afraid being alone in the bedroom with you. She was very young. You invaded the personal space of her bed. You invaded the most private part of her body, touching her vagina inside her clothes. Her distress was immediate.
40The fact that you denied any wrongdoing on multiple occasions when confronted by the girls’ parents shows you were unwilling to accept your offending for some time.
Victim Impact
41I take into account the impact on the victims. Offending such as this not only has an immediate impact but tends to have a long-term impact on various aspects of a victim’s life. It affects self-confidence and the fabric of relationships based on trust. Self-doubt and anxiety are common themes for victims.
42I have received two victim impact statement. One from Mollie and one from Tracey Betham – the girls' mother.
43Both are powerful statements about the specific impact of your offending on them.
44Mollie writes that this had a devastating impact. She talks of your betrayal by your assault. She says:
The events involving not just myself but my sister, have altered my perspective on these people I called family, and my sense of security and comfortability with others in my life. Trusting others has become a daunting task as I battle with feelings of vulnerability and apprehension in my daily life. The trauma has taken away my peace of mind and has made it challenging to engage in normal activities.
45She describes the fact that not only did you violate their privacy and bodies, but you then played victim, causing them to be disowned by the family and shamed upon to strangers. That is sadly not an uncommon experience in family settings.
46She says 'The people who were supposed to protect us turned their back on us when we needed them most'. She describes over the following time punishing herself mentally and physically:
…not knowing whether reporting the matter was the right thing to do, not knowing whether I should have said something, not knowing whether there was more I could have done to protect my sister, something I could have done to protect me. But I am here today and it isn't my fault, nor is it my sisters.
She is absolutely correct in those last comments in particular.
47Ms Betham confirms the impact of your offending on her daughters. She says in the past three and a half years Mollie and Catherine have mentally and emotionally suffered. ‘They isolated themselves, self-harmed themselves and hated the world.’ She says your plea of guilty gave her mixed emotions. She says 'Finally the truth is out, they can now try and heal, they can now live their life knowing justice has been served'.
48The girls spoke their truth when they made their complaints. That was brave especially in the context of a family. Their truth is out and finally you have accepted it. And as their mother writes they can now live their life knowing justice has been served. They have been believed and you have admitted your offending behaviour against them.
Personal Circumstances
49Turning to your personal circumstances. You are currently 68 years old.
50You have no relevant prior criminal history.
51You previously worked in security for 14 years and in New Zealand as a machine operator.
52You have six children and 24 grandchildren.
53You currently live with your wife who is present today and has been present throughout these proceedings, and with your adult grandson in Broadmeadows. You have the support of other members of your family who have also been present through these difficult proceedings. You have stable income from an Aged Care Pension.
54You have been involved with your church and I have received a reference from Reverand Marco Afoa.[10] You have a longstanding association with the church and the choir. He says, apart from this offending, you are otherwise acknowledged as ‘an active and trustworthy man within the congregation and community.’ Your offending against your granddaughters stands in stark contrast to your religious beliefs.
[10] A Pseudonym
55I take into account your church involvement and the fact there have been no allegations of wrongdoing in that setting.
56You have a number of medical issues.
57In a letter dated 23 July 2024, Dr Wirasat Baig opines that you have several chronic and worsening medical conditions and several have a significant impact on your health. He further states that those conditions are unstable and in his view will continue to deteriorate.
58Those conditions include asthma, type II diabetes, obesity, gout, atrial fibrillation, congestive heart failure among others. You suffered a heart attack in 2016 and you are legally blind. I have been provided with a list of the current medications you are on to manage these conditions.
59Dr Baig opines that a period of incarceration would likely exacerbate your medical conditions and it is unlikely, in his opinion, that you would be able to access the medical attention you require.
60I take those matters into account.
61I take into account your age generally and the likely impact of imprisonment.
62I take into account the delay that I have described in interviewing you after the VAREs were made and in then charging you. We are now three years away from what has been too long for all concerned. In that period, as I understand it, you have not reoffended in any way.
Plea of Guilty
63Your plea of guilty to this offending was entered on 14 June 2024 after the Sentence Indication. It is a late plea.
64However, you do receive the benefit of that plea. A plea of guilty has a utilitarian benefit in that it saves the court and the community the cost and time of a jury trial.
65Your plea of guilty here, has also saved the victims the experience of having to be cross-examined for the purpose of a trial, and other family members from giving evidence. I accept that in the matrix of the family setting, your offending was causing considerable upset to your extended family. Your willingness to take responsibility for what you have done was important to your family.
66A plea of guilty may also reflect remorse on the part of an offender, where there is genuine remorse the sentencing court must take that matter into account.
67It may be of some comfort to your victims that you do now express some remorse for your offending.
68At the time of your assessment for suitability for a community corrections order, you acknowledged that your behaviour was ‘wrong’, you were described by the assessor as appropriately remorseful and ashamed.
69Reverand Afoa also says that you have acknowledged you ‘have made mistakes' and he describes you as 'remorseful.’ He also says that you have sought counsel and have continued to work on yourself so that you do not reoffend.
70I take those matters into account.
Submissions
71At the Sentencing Indication Hearing, your Counsel submitted that in all the circumstances of your case I could impose a sentence which did not see you incarcerated.
72He submitted in particular that while drinking alcohol is no excuse for your offending, it was a feature of your disinhibited behaviour. Since the time of the complaints being made and of your arrest and interview, you have abstained from alcohol. That is seen by the broader family as a significant matter and one which no doubt they will continue to monitor.
73Mr Danos submitted that a Community Correction Order with conditions relating to supervision and sex offender program treatment will enhance your prospects of rehabilitation and reduce your risk of reoffending. Supervision will provide you with support and guidance. I agree that any non-custodial disposition must include sex offender treatment to ensure that you recognise your risk factors and to ensure no other child is placed at risk.
74A condition of unpaid community work will serve as a punitive aspect of the order.
75Mr Danos relies on the Court of Appeal decision in Boulton[11] to the effect that in certain cases a CCO is appropriate even for serious offending which would ordinarily result in imprisonment.
[11] Boulton v The Queen (2014) 46 VR 308
76Ms Arceri while submitting imprisonment or a CCO was open to me was keen to impress the desire of the broader family for this matter to be concluded without the need for either victim to give evidence. To their credit the victims expressed their overriding wish was for acknowledgement of your offending. By your plea of guilty you have done so.
77Ms Arceri also fairly pointed out that if an application was made to remit these charges to the Magistrates’ Court that would not be opposed, although the complainants and their families were keen to see the matter resolved and as such it was in their interest not to have the matter further delayed through remission.
78In particular Ms Arceri pointed out that in the event these charges were remitted to the Magistrate's Court, the standard sentence regime would not apply. I have taken those submissions into account.
79I have also taken into account the maximum penalty and the standard sentence. Both are guideposts in the sentencing exercise.
80I have had regard to current sentencing practices for this offending, having been assisted by Counsel. A range of factual circumstances can exist for this type of offending, resulting in a range of dispositions.
81Ms Arceri brought to my attention the fact that of 30 cases before this Court where standard sentences applied, seven were met with a Community Correction Order.
82Ultimately, I am required to impose a just sentence in all the circumstances before me and that is what I have endeavoured to do.
SORA
83The two charges of sexual assault of a child under the age of 16 are class 2 offences.[12] A finding of guilt on those two class 2 offences results in reporting obligations for 15 years under the Sex Offenders Registration Act 2004.[13] I will impose sex offender registration.
[12] Sch 2 Cl 5A Sex Offenders Registration Act 2004
[13] S. 34(1)(b)(ii) Sex Offenders Registration Act 2004
Prospects of Rehabilitation
84Ultimately, I indicated that I would impose a Community Correction Order upon a plea being entered.
85Since your plea, I have had you assessed to determine suitability. That assessment determined you are a low risk of general re-offending and that you are expressing a willingness to accept treatment.
86I note the conditions recommended include unpaid community work despite your medical conditions. I have reduced the amount I would otherwise have imposed given your health status.
87I have also allowed for credits towards unpaid community work by way of treatment.
Sentence
88Mr Faletutulu, if you could stand please.
89On Charge 1 and Charge 2 of sexual assault of a child under 16, you are convicted and ordered to undertake a community corrections order of two years' duration.
90You are to perform 200 hours of unpaid community work. I order that up to 75 hours can be off set against treatment.
91I order that you are to undertake a sex offender program.
92I cannot impose a community correction order without your agreement that you will undertake that order. Before I ask if you agree to that order I need to tell you that if you breach that order either by reoffending, or by not complying with the conditions I have described, you will be brought back before me and would be liable to be resentenced on these charges.
93Do you understand that Mr Faletutulu?
94OFFENDER: (Through translator) Yes, Your Honour, thank you.
95HER HONOUR: And do you agree to undertake the community corrections order that I have described?
96OFFENDER: Your Honour, yes indeed.
97HER HONOUR: But for your plea of guilty, so if you had not pleaded guilty, the sentence I would have imposed would have been a term of imprisonment of four years with a non-parole period of two years and two months.
98Have a seat there, Mr Faletutulu. I will have the community corrections order printed out for you to sign and also sex offender registration paperwork will be provided to you.
99Mr Danos, if you wouldn't mind assisting your client, thanks.
100MR DANOS: Excuse me for that, Your Honour?
101HER HONOUR: Yes. Mr Faletutulu, your signature on that document is your promise that you will undertake that community corrections order.
102OFFENDER: Yes, Your Honour.
103HER HONOUR: Thank you very much. Have a seat there.
104Any other matters to raise, counsel?
105MS ARCERI: No, Your Honour.
106MR DANOS: No, Your Honour.
107HER HONOUR: Thank you very much for your assistance in this matter. Thank you.
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