Director of Public Prosecutions v Polat (a pseudonym)

[2019] VCC 92

IN THE COUNTY COURT OF VICTORIA Revised
Not Restricted
Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

DIRECTOR OF PUBLIC PROSECUTIONS

V

TARKAN POLAT (A pseudonym)

---

JUDGE:	HER HONOUR JUDGE WILMOTH
WHERE HELD:	Melbourne
DATE OF HEARING:	4 February 2019
DATE OF SENTENCE:	8 February 2019
CASE MAY BE CITED AS:	DPP v Polat (a pseudonym)
MEDIUM NEUTRAL CITATION:	[2019] VCC 92

REASONS FOR SENTENCE
A PSEUDONYM HAS BEEN USED TO PROTECT THE IDENTITY OF FAMILY MEMBER
---

Subject:Criminal law - sentence  

Catchwords:   Pleas of guilty to 4 charges of incest with step-child and one charge of sexual penetration of a child under 16 – offender aged between 29 and 37 years – victims aged between 6 and 15 – profound effects on victims - offender socially isolated personality disorder - remorse  

Cases Cited: Carter (a pseudonym) v R [2018] VSCA 88, DPP v Tewksbury (a pseudonym) [2018] VSCA 38, Dalgleish (no 2) [2017] VSCA 360.

Sentence:      9 years 3 months, non parole period 6 years.  

---

APPEARANCES:	Counsel	Solicitors
For the DPP	Mr L Cameron	OPP
For the Accused	Ms E Strugnell	VLA

HER HONOUR:

1Tarkan Polat[1], you have pleaded guilty to four charges of incest with a step-child and one charge of sexual penetration of a child under 16.  You committed these offences over an eight year period between 2002 and 2010 when you were aged between 29 and 37 years of age.

[1] A pseudonym

2Your step-daughter was aged between six and 14 when you offended against her.  You had met her when she was two years old and you married her mother a year later in December 2000.  There were two daughters born of that marriage and the three children were brought up together by you and their mother.

3Between October 2002 and October 2007 when the complainant was aged between six and eleven you would penetrate her vagina with your fingers as she lay asleep in her bed.  Charge 1 relates to one of these occasions and it happened two or three times a week during those years.

4On another occasion between January 2003 and December 2008 the complainant was playing a PlayStation game when you sat behind her and played the game with her.  You then touched her vagina and inserted your fingers.  That is Charge 2.

5You continued to touch her sexually and penetrate her digitally on many occasions and in many and varied places and contexts, treating her in an intimate way, as well as speaking to her and treating her as if she were much older than her years.

6In later years you played the role of a boyfriend who needed her.  On an occasion in 2009 when she was aged between 12 and 13 years she was with you in your factory.  You picked her up and sat her on a table.  You touched her vagina and penetrated it with your tongue.  That is Charge 3, the third charge of incest.

7When the complainant was in Year 8 she had a boyfriend from her school and did not want anything to do with you.  You reacted angrily as if jealous of this relationship.  When the complainant was in Year 10 aged between 13 and 14 you knelt in front of her and cried begging to have her to yourself again.

8The complainant said okay, as she did not know what to do.  You then led her into the master bedroom, placed her on her back on the bed and took down her underwear.  You touched her vagina and then penetrated it with your tongue and that is charge 4  incest.

9Over the next two years you continued to perform similar sexual acts upon her and became stricter and more controlling, restricting her use of social media and grounding her.  You placed pressure upon her to agree to the sexual acts, threatening to leave her mother or kill yourself.

10The complainant told her boyfriend in 2012 what you had done and in late 2016 she told other friends.  Her mother learned of it and soon afterwards in January 2017 the complainant reported it to the police.  On 7 February 2017 she made a pretext call to you which was recorded.

11In that call you told her that you had been in love with her, that you had thought one day you might be together, that you were sorry and would take it back by taking your own life if you could, and assured her that it had not happened to her sisters.

12Charge 5 relates to a second complainant.  Her family was friends with your family and the two daughters, the second complainant being the younger, would often stay at your house on weekends and in school holidays.  She referred to you as Uncle Tarkan.

13One night between 2005 and 2007 when she was aged between 13 and 15 years she was sleeping on a mattress in the bedroom of your stepdaughter, the first complainant.  During the night she awoke when she felt you touch her breast, massaging it.  You then moved your hand down to her pubic region and penetrated her vagina with your fingers. The following night the complainant told her mother, "Something happened with Tarkan", but said no more, and she stopped going to your house but did not tell anyone what had occurred until 2013, when she told her boyfriend.  In March 2016 she told her mother and she reported it to the police a year later.

14You were arrested in relation to your stepdaughter's complaints on 8 February 2017 and again in relation to the other complaint on 11 April 2017.  You made no comment at each interview.  These charges are of course very serious, attracting long maximum prison terms of 25 years for incest and ten years for sexual penetration of a child under 16 at that time.

15The victim impact statements provided by the two complainants and your former wife, the mother of your stepdaughter, are evidence of the great harm such crimes can cause.  Each of the statements was read out in court and you heard them.  They appear to be carefully considered and eloquent accounts which I shall briefly summarise.

16Your stepdaughter describes the exploitation and manipulation of her psychologically in terms that focus on this very harmful aspect of your sexual abuse of her.  Your threats to her that you would kill yourself and your accusations to her that she had no feelings were indeed cruel and very distressing.

17Fortunately she has the maturity and insight to understand that she was dissociating from her experiences with you but she still suffers from the impact of the repression of her emotions.  It affects her whenever she is placed under stress and it affects her relationships with her family and with her partner.

18She considers that her inability to focus at school might have compromised her academic ability and she fears for the future in terms of trusting men and being able to raise children confidently.  She matured sexually at a very early age and wonders if this may have resulted from the early sexual stimulation by you.

19Apparently this is a phenomena identified by recent research which also identified increased risks of serious illness such as heart disease associated with early sexual maturation, and her comprehension of this has caused her great concern.

20The second complainant describes similar reactions in her victim impact statement.  She had to continue seeing you at family events most weekends and had to pretend nothing had happened.  She experiences what she describes as a lack of control in sexual situations because she fears the consequences of saying no.

21She feels emotionally blocked and her relationship with her mother has suffered.  She has very disturbing nightmares and consequent lack of sleep which affects her work.  She fears that she will be overprotective of her young daughter as she grows older.  Rumination about what happened and whether she was at fault in some way often prevents her from focussing on ordinary chores and she has to use strategies to deal with this.

22Your former wife addressed you directly in her victim impact statement, citing the breach of trust you perpetrated by taking advantage of being a husband and father.  You caused devastation to this family, with the effects still being felt, not only by the victim herself and her mother but by your younger daughters as well.

23     She has to carry the burden of dealing with the many and varied emotional problems you have caused.  As well as having to deal with her own emotional hurt, your former wife has had to return to study and work fulltime to support her family and even to pay your debts

24    I take into account the effects upon the victims described in these accounts without allowing them to overwhelm the objective task of determining a just and appropriate sentence.

25Turning now to your personal circumstances, you were born in Sydney and are now aged 45.  You were the middle child of five children born to your parents who separated when you were nine years old around the same time as the family went to live in Turkey.

26Since then you have had no contact with your father and you later became estranged from your mother, whom you believe to have died just before you were remanded in custody, following the pre-trial directions hearing in September last year.

27You recall having been subjected as a child to emotional and psychological abuse by your mother who regarded you as a replacement child for an older sibling who had died as an infant.  You were educated here and in Turkey and completed high school in New South Wales.

28You achieved post-secondary qualifications in business management and in polymer technology and worked in several businesses before starting your own business in 2005 designing, constructing and installing shade sails.  You met the mother of your stepdaughter in 1998 when you were 25.

29She has indicated that you used cannabis throughout your relationship and you concede that but deny that it was daily use.  You have not used any other illicit substances, nor had a problem with alcohol consumption, nor have you had previous contact with the criminal justice system.

30However, you had consulted with a psychologist several times in recent years for marital difficulties and you left the marriage around this time.  Dr Dion Gee provided a detailed report dated 15 September 2018[2] with a diagnosis of recurrent depressive disorder.

[2] Report by Dr Gee 15/9/18 p8 para 26

31Dr Gee described your self-image as "alienated, uncertain and worthless", and that you feel isolated from and rejected by others.  He said you were prone to self-punitive behaviour and distanced yourself from activities that involve intimate personal relationships.  You apparently see yourself as having a long standing history of social anxiety and distrust.

32It would seem that these and certain other features led Dr Gee to conclude that you also have a mild to moderate personality disorder.  However, you do not meet the diagnosis criteria or the diagnostic criteria for a paedophilic or paraphilic disorder and Dr Gee considers your abhorrent sexual behaviour as being an attempt at social connectedness and intimacy in a man with compromised and dysfunctional self-regulation[3].

[3] Ibid p10 para 32

33That said, Dr Gee noted that your mental functioning did not impair your ability to control your behaviour, nor did it limit your ability to appreciate the wrongfulness of your conduct.  In hindsight you appreciate the wrongfulness of what you did, according to Dr Gee, and you attempt to distance yourself from it.

34You have been assessed as being at a low to moderate risk of reoffending sexually.  As to your likely experience of imprisonment Dr Gee considered when he assessed you that there is a risk that your mental state could deteriorate but that this could be ameliorated by medication and mental state monitoring.

35The delay in your decision to plead guilty to these charges would seem to indicate a desire to distance yourself from the offending as I have mentioned, but your explanation is that you panicked when first questioned by the police and it was later that you decided to own up.

36You have told your counsel that you are disgusted with yourself and ashamed at having "screwed up" the lives of your daughters.  Clearly you are remorseful and that indicates good prospects for rehabilitation together with the risk assessment.

37There are however few protective factors and on release you would benefit from psychological intervention of the type discussed by Dr Gee.  The only apparent protective factors would appear to be the friends whose support is indicated by the letters they have written, as well as your capacity for employment.

38As to the gravity of the offending, that is obvious in this case from the evidence of the grave effects upon the victims contained in their victim impact statements.  There is an absence of some aggravating features often accompanying these crimes, such as the risk of pregnancy or disease that would present in the case of penile penetration, absent in this case.

39However, your threats of suicide did amount to coercive and manipulative behaviour and your stepdaughter understood you to be suggesting that if she told her mother, life without you would be very difficult for the family.

40The aggravating features that were present include the gross breach of trust and the brazen circumstances in which the offending occurred, as well as the fact that you offended against two victims, and in the case of your stepdaughter over a long period of time, and in the context of what amounts to a type of de facto relationship, as you saw it.

41It is difficult to pinpoint the gravity of this type of offending, and similar cases can only provide limited guidance.  The tension between objective and subjective assessment may make any conclusion a tendentious one.  In this case the gravity is mid-range and in reaching that conclusion I take into account the context of frequent offending over a long period in respect of Charges 1 to 4 while emphasising that the sentence in each case is for a charge arising from one occasion.

42The nature of these charges means that general deterrence as a principle is most important and that must be reflected in the sentence.  The community regards the sexual exploitation of children as abhorrent and deserving of severe punishment, particularly in circumstances of gross breach of the trust between family members.

43The abuse of your stepdaughter commenced when she was very young and continued on a regular basis until well into her adolescent years.  In determining an appropriate sentence I have had regard to recent decisions of the higher courts in regard to current sentencing practice, assessment of gravity and the role to be played by aggravating features.

44In particular I was referred to the decisions in R v Carter[4], DPP v Tewksbury[5] and DPP v Dalgleish No. 2.[6]  I was also referred to some of the decisions set out in the snapshot reports from the Sentencing Advisory Council. 

[4] Carter (a pseudonym) v R [2018] VSCA 88

[5] DPP v Tewksbury (a pseudonym) [2018] VSCA 38

[6] DPP v Dalgleish (No 2) [2017] VSCA 360

45In relation to charges 3 – 5 you are to be sentenced as a serious sexual offender which will be noted in the court record.  That means that the protection of the community is the primary sentencing consideration in such circumstances and accordingly the importance of rehabilitation carries less weight.

46There has been a delay of seven years since the end of the offending and the commencement of proceedings, which is not unusual and during that time you have not offended further.  However, it seems that you have not developed any meaningful insight into the reasons for offending during that time and you claim to be unable to remember offending against the second complainant.

47At the same time you have had the prospect of being reported to police and since then the uncertainty of what might happen hanging over your head and that type of delay should be taken into account as a mitigating circumstance.

48While the plea was not early it has some limited utilitarian benefit in that the trial was avoided even though a three day committal was held and the victims and other witnesses were cross-examined.  Some moderate discount on your sentence is nonetheless warranted.

49Would you stand now please.  Mr Polat  I sentence you to the following terms of imprisonment: 

for each of Charges 1 to 4 inclusive, six years, that is six years on each of those charges

for Charge 5, three years. 

The sentence for Charge 1 will be the base sentence for purposes of cumulation.  I order that nine months of each of the sentences for Charges 2, 3 and 4 and one year of the sentence for Charge 5 be served in cumulation upon the base sentence. This results in a total effective sentence of nine years and three months. 

I order that you serve six years before being eligible for parole. 

You have remained in custody since 24 September 2018, a period of 137 days, not including today.  I declare that time to have been already served and I shall cause that to be noted on the court record.

50Under the provisions of the Sex Offender Registration Act 2004 you will be required to provide your details to the police from when you are released for the rest of your life.

51The prosecution seeks an order for a forensic sample of saliva to be obtained.  That is not opposed and I make that order.  I must advise you that the police have the power to use reasonable force to obtain the sample but I trust that will not be necessary.

52I will note on the gaol order that you should be assessed in prison in relation to your mental health vulnerability. 

53If you had pleaded not guilty to these charges I would have sentenced you to ten years' imprisonment with a non-parole period of seven years.

54Just be seated for the moment please, Mr Polat.  Are there any other matters first of all, Mr Cameron?

55HER HONOUR:  Ms Strugnell, did I get consent for that s.464?

56MS STRUGNELL:  Yes, Your Honour, it was consented.

57HER HONOUR:  Consented, is it?

58MS STRUGNELL:  Yes.

59HER HONOUR:  Thank you.  You may take Mr Polat, thank you, officers.

-   - -