Director of Public Prosecutions v Tillman

[2015] VCC 200

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

AT BENDIGO
CRIMINAL JURISDICTION

CR 14-01714

DIRECTOR OF PUBLIC PROSECUTIONS

v

JASON TILLMAN

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JUDGE:	HIS HONOUR JUDGE LACAVA
WHERE HELD:	Bendigo
DATE OF HEARING:	20 January 2015
DATE OF SENTENCE:	27 February 2015
CASE MAY BE CITED AS:	DPP v Tillman
MEDIUM NEUTRAL CITATION:	[2015] VCC 200

REASONS FOR SENTENCE
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Subject:  Incest
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:                  Nine years' imprisonment with five and a half years' non-parole

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APPEARANCES:	Counsel	Solicitors
For the DPP	Ms A. Moran
For the Accused	Mr J. Harper

HIS HONOUR:

1In these sentencing remarks I refer to you by a pseudonym.  That is done to protect your identity but most importantly the identity of your victims.

2You have pleaded guilty to eleven charges of incest for which the maximum penalty is 25 years' imprisonment.  You have also pleaded guilty to two charges of indecent act with a child under 16 for which the maximum penalty is 10 years' imprisonment.  You have also pleaded guilty to one charge of possession of child pornography for which the maximum penalty is five years' imprisonment.

3The circumstances of your offending are contained in a written summary of prosecution opening which I admitted into evidence as Exhibit A on the plea.  It was read in open court by the learned prosecutor, Mr O'Doherty, and accepted by your counsel, Mr Lavery, as being accurate and as forming a proper basis upon which I can proceed to sentence you.

4There is no need for me to repeat here all that is set out in the summary.  The victims in the charges were your two step-daughters.  Your offending involving the victim in Charges 1 to 13 (victim 1) spanned the period 2010 until late February-March 2014, when your criminal conduct was revealed both to your family and subsequently to police.  Your offending in Charge 14 involved a different victim, the sister of your other victim (victim 2).  That offending occurred in 2013.

5Your offending involved a gross breach of the trust reposed in you as the stepfather of your victims by the children themselves and by their mother, your wife.  She provided you with the opportunity to commit your crime by insisting you sleep in the same room as victim 1.  She did so because she feared your eldest son might become involved sexually with her. 

6You married  eight years ago and you have been living with her since.  You each brought two children to the marriage from previous marriages and there were two children of your union.  So there were six children living in the home:  your two victims from your wife's previous marriage, now aged 14 and 12 years respectively; your son and daughter from your previous marriage, now aged 18 and 15 years respectively; and the two younger children of your second marriage, now aged eight and five years respectively.

7Between 2010 and 2014 you committed incest by vaginal, oral and anal penetration with your penis, fingers and tongue with victim 1, who was then aged between ten and 14 years.  Most of the offences occurred in the family home whilst other members were in the house.  You slept with victim 1 almost every night for four years.  Victim 1 has said that there were only about three nights in that time when you did not have sex with her.  Victim 1 believed she was in an intimate relationship with you and planned to elope with you when she turned 16.  Each time you had sex with her it was consensual.

8None of the charges are representative and I am to sentence you on the basis they are discrete separate offences.  Notwithstanding that, there is no purpose to be served in here describing what you actually did in carrying out each offence that you have pleaded guilty to.  That can be left to a reading of the summary, which should be read in conjunction with these sentencing remarks.  Charge 3 was an occasion when you first ejaculated into victim 1's vagina.  She was then ten years old.  In charge 10, on the invitation of victim 1, you inserted your penis into her anus.  She was then 14 years old.  Charge 13, although in itself a serious offence of possessing child pornography, is relatively minor in the scheme of your offending.  It occurred in the context where you were sent, via a mobile phone, a photo by victim 1 of her naked breasts.

9Charge 14 involved victim 2.  At all times up until your plea you denied any inappropriate offending towards victim 2.  When interviewed by police you told them that you were in love with victim 1 and denied allegations relating to victim 2. 

10You are now 44 years of age, 30 years older than victim 1.  The absurdity of the relationship between the two of you needs no further explanation.  You convinced victim 1 that you loved her and purchased mock wedding rings which you exchanged with her and, from the age of ten years, she became your sexual partner, no doubt convinced by your absurd and unrealistic representations to her as to your feelings for her.  You purchased sexually explicit underwear for her to wear when you were together which was hidden from all within the home.  That you could have kept this almost full-time sexual relationship hidden from the victim's mother and other members of the household for such a long time I think is testament to the full consent and cooperation you had from victim 1 who assisted in hiding what was going on, no doubt mistakenly convinced that it was to her benefit.

11I have no doubt you carried out the offending in relation to victim 1 because of your sexual lust for her, which grew as your relationship with her developed.  This was all about your own sexual gratification.  Because of your low intelligence which I will later turn to, even though you knew what you were doing was wrong, you managed to justify your conduct in your own thought processes on the basis that you loved victim 1 and she loved you.  That is the absurdity of it. 

12Even though you are of low intelligence, you had managed to lead a full and decent life in so many ways up until this offending.  You were not backward in the experience of life.  You had been twice married and you had fathered four children.  I cannot accept that because of your low intelligence you offended.  I think you became intoxicated by lust and the diet of constant sex that was presented to you on a platter by a young girl who did not know any better.

13I do accept your offending was opportunistic and unlikely to be repeated, but you took full opportunity.  Even though you denied any involvement with victim 2 right up until your plea of guilty before me, your plea of guilty to Charge 14 gives the lie to your claims you loved victim 1.  Your offending in Charge 14 was during the time you were offending with victim 1 and again suggests to me you were prepared to take whatever advantage you could of opportunities to satisfy your own sexual desires.

14You have pleaded guilty to the charges and that is very much to your credit.  I accept you are remorseful and your guilty pleas reinforce that.  But importantly by your pleas, you have saved the time and costs of possibly two trials and you have saved your victims having to give evidence against you.  You made full admissions to the police concerning victim 1 and, in respect of Charges 1 to 13, I treat you as having pleaded guilty at the first available opportunity.  There were other charges in relation to victim 2 which resolved into a plea of guilty the day before a trial.  Although late, your plea of guilty to Charge 14 is extremely valuable because you saved the time and costs of that trial and saved victim 2 and other family members having to give evidence against you.  In passing sentence I have given you the full benefit of pleas of guilty and, notwithstanding the late plea of guilty to charge 14, I nevertheless treat you as having pleaded guilty at the first available opportunity.

15I turn to your background circumstances.  Mr Lavery relied upon a report from Dr Aaron Cunningham, a forensic psychologist, dated 22 September 2014 (Exhibit 1).  That report traces through much of your background.  When you were aged 15 your family lost all of their possessions in a bushfire.  This has had a significant impact on you, witnessing as you did the death of the family animals.  The family was impoverished and had to split up because of lack of proper accommodation for the whole family.

16At age 25 you left the family home to live with your first wife.  That relationship lasted nine years and there were two children of it.  Your relationship struck trouble soon after the marriage and your first wife suffered depression.  You gained custody of the children when the marriage dissolved.

17Five months later you commenced a relationship with your second wife, whom you met via a dating service.  This relationship also lasted nine years and produced two children.  The relationship terminated with the revelation of this offending.  You continue to be supported by your eldest son, your sisters and mother.  One of your sisters was in court to support you on your plea.

18I was told and accept that you were required to do almost everything in the family as well as being the sole breadwinner when your second wife effectively withdrew from having any responsibility for the family.  I was told and accept that the family setting in which the offending occurred was dysfunctional.  I accept you turned to victim 1 for affection because none was forthcoming from elsewhere.

19You attended primary and secondary schooling in country Victoria but dropped out early in year eight.  You thus have limited education.  You told Dr Cunningham you can read and write enough to get by.  You have a good work record performing farming work and labouring-type work and other unskilled work.

20You told Dr Cunningham that you knew what you were doing with victim 1 was wrong and felt guilty about it.  You also told him that you have been taking antidepressant medication and feel that you have suffered from depression since your relationship breakdown with your first partner.

21You also told Dr Cunningham you attempted suicide by overdose in 2014 (after your offending was reported to police) and you feel worthless and guilty.  You also reported grieving the end of your perceived relationship with victim 1, stating that you "missed and loved her".  Dr Cunningham diagnosed you as suffering from major depressive disorder.

22Dr Cunningham carried out psychometric testing of you and opined that your cognitive functioning was "in the extremely low range".  Dr Cunningham opined that whilst you understand your behaviour with victim 1 in particular was against the law, you have little insight into the consequences of your behaviour to victim 1 and her inability to consent to your actions.  This lack of insight he thought was a reflection of your low level of cognitive functioning.  I accept that opinion.  Nevertheless, you did know that what you were doing was wrong and you continued to offend on a regular basis for about four years.  Testing carried out by Dr Cunningham assessed you as a moderate risk of sexual re-offending.

23I accept the opinion of Dr Cunningham that, because of your low level of intellectual functioning and the fact that the kind of offending you have engaged in may require you to be retained in protective custody, a sentence of imprisonment will weigh more heavily upon you.  I also accept it may affect your mental health.  In passing sentence I have taken these matters into account, especially in fixing a non-parole period.

24I turn to some principles to be applied in sentencing when dealing with crimes of this kind.

25General Deterrence.  Appellate courts in all jurisdictions in this country have repeatedly said that crimes against children and young persons are to be regarded as abhorrent and that the courts have a duty to the victims and to the community generally to protect such persons from people such as yourself, who might be minded to take advantage of them for personal sexual gratification.  Experience of the courts has shown that where such offences are committed the effects upon the victims (as here) and upon the family as a whole (as here) are both profound and lasting.  

26I have referred above to the victim impact statements admitted into evidence.  The consequences for the victims are there to be seen. Accordingly, any sentence I impose on you must send a clear message to those in the community who might be of the inclination to offend as you have that if they do so and they are detected, the punishment from the court will be condign.  Accordingly, in cases such as this, application of the principle of general deterrence will be a very important factor in sentencing. 

27Mr Lavery submitted that because you suffer from a major depressive disorder and have low-level cognitive functioning, the sentence I pass should have reduced emphasis on general deterrence.  I do not accept that submission.  Whilst I accept you are depressed and have low-level cognitive functioning, you at all times knew that what you were doing was wrong but you nevertheless offended regularly and repeatedly over a four-year period.  This is not a one-off criminal offence.  It is repeated offending and the overall sentence must appropriately reflect general deterrence; I have, however, taken these matters into account in fixing a non-parole period.  The sentence I will impose provides for a long parole period.

28Specific deterrence must remain an important objective in sentencing.  As I said earlier, I do regard your offending as opportunistic and I do regard your prospects for rehabilitation as reasonable.  I have taken the view that the sentence imposed by me does not have to strongly reflect application of specific deterrence in your case.  I accept you have now lost everything and your future would appear bleak and this is deterrence enough.

29The protection of the community from you and the likelihood of your re‑offending is of paramount importance in crimes of this type. The sentence I propose I believe adequately protects the community from you.

30Rehabilitation.  You are 44 years of age. As I have said, I think you prospects for full rehabilitation are reasonable especially if you are denied opportunity by being denied access to younger women.  The fact that you have admitted your crimes and expressed remorse suggests you now have some insight into your offending.  Time will tell. 

31By my sentence I must manifest denunciation of your conduct and finally I must impose a punishment which is, in all of the circumstances, just.

32In sentencing you, I have had regard to the nature of the offences for which you have pleaded guilty, the period of time over which those offences were carried out together with the effect of your conduct upon your victims and your family as appears all too clearly from the victim impact statements.  Such matters, however, must be balanced with the matters in mitigation to which I have endeavoured to refer.

33The offences in Charges 3 to 14 are serious sexual offences. That means that, as you will be convicted of these charges and sentenced to a term of imprisonment, you are a "serious sexual offender" within s.6B(2) of the Sentencing Act. I intend sentencing you to prison for those offences. I am required to sentence you on Charges 3 to 14 as a serious sexual offender and do so and I have had regard to Part 2A of the Sentencing Act 1991.

34In determining the length of any prison sentence imposed on Charges 3 to 14, protection of the community from you must be the principal purpose for which the sentence is imposed.  In order to achieve that purpose, I may impose a sentence longer than that which is proportional to the gravity of the offences considered in the light of their objective circumstances.  This does not mean that the principles of proportionality and totality of sentencing are to be disregarded unless, in the exercise of discretion, I consider that the circumstances before me make it appropriate to do so for good reason.  I do not consider that a disproportionate sentence is called for.  In my view, the overall effective sentence I propose will properly and adequately provide for protection for the community.  I note the position of the prosecution is that I have not been asked to impose a disproportionate sentence. 

35Every term of imprisonment imposed on you as a serious sexual offender for a serious sexual offence must, unless otherwise directed by me, be served cumulatively on any other sentence I impose on you. I will impose some cumulation and order some concurrency, which I regard as appropriate taking account of all of the circumstances discussed.  I am required to cause to be entered in the court's records that I sentence you on Charges 3 to 14 as a serious sexual offender in respect of any sentence imposed on you in that manner.

36On Charge 1, incest, you are convicted and sentenced to a term of imprisonment of three (3) years.

37On Charge 2, incest, you are convicted and sentenced to a term of imprisonment of two (2) years.

38On Charge 3, incest, you are convicted and sentenced to a term of imprisonment of three (3) years.

39On Charge 4, incest, you are convicted and sentenced to a term of imprisonment of three (3) years.

40On Charge 5, incest, you are convicted and sentenced to a term of imprisonment of three (3) years.

41On Charge 6, indecent act, you are convicted and sentenced to a term of imprisonment of  one (1) year.

42On Charge 7, incest, you are convicted and sentenced to a term of imprisonment of two (2) years.

43On charge 8 incest you are convicted and sentenced to a term of imprisonment of three (3) years.

44On Charge 9, incest, you are convicted and sentenced to a term of imprisonment of three (3) years.

45On Charge 10, incest, you are convicted and sentenced to a term of imprisonment of four (4) years.

46On Charge 11, incest, you are convicted and sentenced to a term of imprisonment of three (3) years.

47On Charge 12, incest, you are convicted and sentenced to a term of imprisonment of three (3) years.

48On Charge 13, possess child pornography, you are convicted and sentenced to a term of imprisonment of two months.

49On Charge 14, indecent act, you are convicted and sentenced to a term of imprisonment of two years.

50I direct that the sentence imposed on Charge 10 be the base sentence and that one year of the sentences imposed on each of Charges 1, 3, 5, 8 and 14 cumulate upon the sentence imposed on Charge 10 and upon each other, making a total effective sentence of nine years' imprisonment.

51I direct you serve a minimum of five and a half years before being eligible for release on parole.

52For the purposes of  S. 6AAA of the Act I state that had it not been for your pleas of guilty to the charges I would have imposed a total effective sentence of 12 years' imprisonment and I would have ordered that you serve nine years of that sentence  before being eligible for release on parole.

53Pursuant to s.6F(1) of the Sentencing Act 1991 I direct that I have sentenced you on Charges 3 to 14 inclusive as a "serious sexual offender" within s.6B of the said Act and I direct the fact of my having done so be entered into the records of the court.

54I recommend that whilst in prison you be referred for assessment and treatment under any relevant sexual offender treatment programs and that this matter be brought to the attention of the parole board at the relevant time. 

55I note that you have served 37 days in custody. Accordingly, pursuant to sub-s.18(4) of the Sentencing Act 1991, I declare that the period of 37 days be reckoned as time already served under the sentences passed today and be noted accordingly in the court records and deducted administratively.

56The crime of incest is a class 1 offence pursuant to Schedule 1 of the Sex Offenders Registration Act 2004.  You have been convicted of eleven such offences.  The crimes of committing an indecent act with or in the presence of a child aged under 16 and possession of child pornography are class 2 offences pursuant to Schedule 2 of the same Act.  You have been convicted of three such offences. 

57Thus you have been convicted of 11 class 1 offences and three class two offences and pursuant to the application of sections 6 and 34 of the Sex Offenders Registration Act 2004 you are a registrable offender within the meaning of that Act with reporting obligations for life. 

58I strongly advise you to take advice in prison as to your obligations under the Sex Offenders Registration Act 2004.  You will have to comply with the reporting obligations upon your release and for the remainder of your life.

59The Office of Public Prosecutions has made application for an order directing you to undergo a forensic procedure for the taking of an intimate sample from your body. The offences of which you have been convicted are each a forensic sample offence under the relevant schedule to the Crimes Act 1958.

60Having regard to the seriousness of your offending, the fact that the making of the order was not opposed by your counsel and it being in the public interest, I am satisfied on a consideration of all the circumstances that the making of an order under s.464ZF(2) of the Crimes Act is justified.  I direct that a copy of the order and my reasons for making the order be served on you.

61I am required to inform you that having made this order, once it is served upon you, that a member of the police force may use reasonable force to enable the procedure to be conducted, which in this case is the taking of a scraping from your mouth.  I have signed an order to the above effect.   

62Mr Tillman, there is a form that you will have to sign relating to the Sex Offenders Registration Act orders that I have just made.  Are you familiar with that form, Mr Harper?

63MR HARPER:  Yes, Your Honour.

64HIS HONOUR:  Could you just approach your client and have him sign it.  Any questions arising out of that Ms Moran?

65MS MORAN:  No, Your Honour.  Thank you.

66HIS HONOUR:  Mr Harper?

67MR HARPER:  No, Your Honour.

68HIS HONOUR:  Very well.  Would you remove Mr Tillman, please, and could you bring in Mr Gatt.  I will just leave the Bench whilst that is happening.

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