Director of Public Prosecutions v Tullipan (a pseudonym)

[2020] VCC 1286

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

AT MELBOURNE
CRIMINAL JURISDICTION

DIRECTOR OF PUBLIC PROSECUTIONS

v

FLYNN TULLIPAN (A PSEUDONYM)

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JUDGE:	HIS HONOUR JUDGE CARMODY
WHERE HELD:	Melbourne
DATE OF HEARING:	19 August 2020
DATE OF SENTENCE:	19 August 2020
CASE MAY BE CITED AS:	DPP v Tullipan (a pseudonym)
MEDIUM NEUTRAL CITATION:	[2020] VCC 1286

REASONS FOR SENTENCE

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Subject:  CRIMINAL LAW – Sentence
Catchwords:  Incest – Indecent assault – Deportation

Legislation Cited:  Sentencing Act 1991; s.6F - Sexual Offenders Registration Act 2004; s.34

Cases Cited:  McCray (a pseudonym) v The Queen [2017] VSCA 340

Sentence:Total effective sentence of nine years’ and six months’ imprisonment with a non-parole period of six years’ and nine months.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr L. Cameron	Director of Public Prosecutions
For the Accused	Mr S. Moglia	Kaczmarek Grigor Lawyers

HIS HONOUR:

1Flynn Tullipan[1], this morning, 19 August 2020, at the Melbourne County Court you pleaded guilty to the following charges on indictment K10878344: 

Charge 1, Incest.  This was a course of conduct charge.  This offence has a maximum penalty of 25 years' imprisonment. 

Charge 2, Indecent assault.  This offence has a maximum penalty of ten years' imprisonment.

[1] A pseudonym name.

2You have no prior criminal history.  You have not served any time in custody as pre-sentence detention for these offences.  You have been on bail living in the community since April 2019.

3The prosecutor tendered an amended summary of prosecution opening dated 29 May 2020.  I will repeat the relevant sections in this sentence as to the circumstances of the offending.

Background history of offending

4Your wife is the biological aunty of the victim in this case.  The victim was born in Samoa in 1991.  She had no contact with her biological parents and was raised by her grandmother.

5In 2005, the victim was taken from Samoa to New Zealand by her grandmother.  You and your wife formally adopted the victim when she was 14 years old in New Zealand.  Soon after the victim moved in with your wife, her aunt, and you in New Zealand, you began to physically and sexually assault the victim. You told her that you owned her and that she was not to have contact with her family in Samoa.  She was not allowed to have her bedroom door closed and she was scared of you. 

6The sexual offending escalated from you being naked in the house, in front of the victim when her aunt/your wife was not home, to touching her breasts, and ultimately regular penile-vaginal penetration.

7In 2006, the victim became pregnant to you.  You took her to an abortion clinic, but you were told that it was too late as she was six months pregnant at that time.  After this you made various attempts to induce a miscarriage by assaulting the victim.

8In October 2006, you moved the family to Australia, initially living with a friend of yours in Thomastown.  The victim then slept in a separate bed in the same room as your wife and you.  The sexual abuse continued while the victim was pregnant.

9These background events are not part of the charges against you but give context of your offending in this particular case. 

10The charge of incest against you is a course of conduct charge.

Circumstances of the offending

11One night in October 2006, approximately a week after you arrived in Australia and when the victim was 15 years old and heavily pregnant, you moved from your bed to hers and laid on top of her.  You lifted up her lava lava, which is a skirt type garment, and you put your hands over her mouth.

Incident One

12You introduced your penis into her vagina.  You did not wear a condom.  The victim was sobbing in pain as you penetrated her.  When you had finished you got up and went to work as if nothing had happened. 

Incident Two

13In November 2006, you moved the family from Thomastown to Sunshine where you all lived again with friends of yours who you knew through your church in New Zealand.  Within a couple of days of moving there you began going to the victim's bedroom again and having sex with her.  You would often pull her hair and strangle her whilst you were doing this.

14On another occasion when the victim was 15, you entered the room whilst the victim was kneeling and hunched over her bed due to the muscle pain from her pregnancy.  You grabbed the victim from behind, lifted her skirt and pulled down her underwear.  She froze as you did this. You then knelt behind her and penetrated her vagina with your penis.  The victim was in extreme pain as you were having sex with her as she was having muscle contractions due to her pregnancy.  When you had finished you just got up and left. 

15On 10 December 2006, when the victim was 15 years old, she gave birth to a daughter which had been fathered by you.  That daughter now lives with your victim.  Your wife refused to allow social workers to speak with the victim alone.  You told the victim to tell social workers that her cousin in New Zealand was the father of the child.

16Your child and the child of the victim was raised in your family as the victim's sister.  You left your victim alone in the sexual sense after the birth of your child.  You constantly put her down and did this particularly around other boys.

17You were in a high position within your church and your victim felt that she could not tell anyone about what had happened to her and that no-one would believe her if she did.

Non-specific incident

18In 2007, when your victim was about 15 to 16 years of age, she began attending school and you continued to regularly sexually assault the victim after the child was born whenever you found the opportunity and that was a non-specific incident in relation to incest.

Incident Three

19In 2009, the victim was pulled out of school and moved to Sunshine North.  On 20 July 2009, the victim missed her period and was experiencing morning sickness.  The victim underwent an obstetric ultrasound which revealed that she was pregnant with an estimated gestation age of 15 weeks and a couple of days.

20On 29 July 2009, when the victim was 18 years of age and you were 36 years of age, you took her to the Sunshine Hospital to have an abortion.  You dropped the victim off and told her to tell the medical staff that the father of the baby was a 16 year old boyfriend who had run away.

21The victim never had a boyfriend at that time.  The victim was then referred to the Royal Women's Hospital to undergo the procedure itself.  She was told her pregnancy was very close to being too far progressed for an abortion to be performed.  The sexual intercourse that resulted in this pregnancy represents a further specific incident of the charge of incest. 

Non-specific incident

22The family then moved to Deer Park on the same day of that abortion.  When you and the victim returned home your wife asked you where you had been.  You said that you had received a call from your cousin who had found the victim on the road with a boyfriend.  As a result of this, the victim's aunt/your wife beat her and called her a slut.  After the abortion the victim felt very depressed and guilty and you refrained from engaging in sexual activity with her for approximately one month.

23Whilst you were living in Deer Park you would pray at night and you would regularly enter the victim's room and have sex with her before leaving the room and then going back to continue to pray.  The victim told you she did not want to be your sex slave.  You told her that you wanted to stop but you could not because you were obsessed with her and did not want any other man to touch her. 

Incident Four

24In December of 2012, when the victim was 21 and by this stage you were nearly 40 years of age, she became pregnant to you again.  On 5 February 2013, the victim underwent an obstetric ultrasound which revealed that she was pregnant with an estimated gestation age of eight weeks.

25When you became aware of this on 12 February 2013, you drove the victim to Flinders Street station where she then took a tram to Marie Stokes Clinic in
St Kilda East.  You did not provide the victim with the money for the abortion and upon arrival at the clinic the clinic refused to perform the procedure as your victim did not have enough money to pay for it.

26The victim begged for the money on the street until she obtained sufficient funds to pay for that procedure.  You collected her from the clinic later that day.  The sexual intercourse that resulted in this pregnancy represents a further specific incident of the charge of incest.

27Late one night in February 2013, when the victim was 21 years of age she had just returned to her room after a shower when you entered the room wearing only a wrap around your lower half.  You wanted to have sex with the victim, but she pushed you away and tried to tell you she had her period to deter you.

28You then pushed her onto the bed and tried to pull her legs apart.  You had removed your lava lava by this point and was trying to lick the victim's vagina.  You touched the victim's vagina to check if she was bleeding and then started licking and biting her vagina.  You told the victim that she was lying about having her period.  Those facts are the basis for Charge 2, indecent assault.

29Your victim made a commotion in the room to attract the attention of your wife, her mother and aunt.  Your wife came down the hallway.  You then hid in the victim's wardrobe leaving the victim standing in a towel in the room.  Your wife entered the room and the victim motioned towards the wardrobe where you were with her eyes.

30Your wife opened the wardrobe and discovered you standing there naked and she went into a rage and broke plates in the kitchen.  You have then put your lava lava back on and went to the sitting room and watched the TV as if nothing had happened.

31Your wife called the victim into the sitting room.  When the victim entered the room, your wife was holding a knife and pointed it towards the victim saying, 'Someone is going to die tonight'.  You tried to convince your wife that nothing had happened and that it was all in her head.  As you did this the victim was made to clean up the broken plates in the kitchen.

32When the victim went outside to place the broken plates in the bin you have then followed her, held her up against the wall of the house by the throat and threated, 'If you say anything you will see what I'm going to do to you'.  Your victim was scared and rushed back inside as soon as you released her.

33The regularity of the sexual relationship between you and the victim variously ranged between once every few days, weekly or fortnightly. 

34When the victim was 18 years old, she had met her boyfriend, now husband. When the victim started seeing him you told her that you would do anything to stop their relationship. The victim agreed to stop seeing her boyfriend if you stopped having sex with her.  You agreed to this on a condition that she got a tattoo of your surname on her back, which she did.  Despite this, the victim eventually began seeing her boyfriend again.  When you found out, you sent the victim back to Samoa on a one way plane ticket.

35She returned to Melbourne once she had enough money to pay for her own flight back.  Once she returned, she lived with her boyfriend and they ultimately married in February of 2014 and had their first child together in June 2014.

36In 2012, the victim had told one of her cousins about your offending.  The cousin's reaction was to freak out and told the victim not to say anything about it.  The victim also told a friend of hers from High School. She told her boyfriend of your offending when she was pregnant with their first child in 2014.

37The victim has maintained some contact with you and your wife after she left the family because of her daughter, your daughter who was still living with both you and your wife.  I now understand that the daughter now lives with the victim, her mother.

38The victim reported you to Child Protection in May of 2017.  The victim did not want to make a police statement at that time.  In March of 2018, Child Protection became involved in your family in respect of the daughter that you had fathered with the victim.  You made admissions of your offending against the victim to Child Protection.  The police investigation was then reopened in March 2018.

39You were arrested and interviewed by the police on 31 July 2018.  You told police your relationship with the victim was like normal, like family relationship.  You denied ever having a sexual relationship with the victim and you said you did not know who the child's, that is the young daughter's, father was.

40When asked about your interview with Child Protection you said, 'I told Child Protection it's our relationship, there's nothing wrong in our relationship'.  You then answered 'no comment' when the content of the Child Protection notes of the interview were put to you.

41In summary, you have offended in this state against your adopted daughter for a period of over six years.  Your offending has resulted in your victim becoming pregnant in 2009 and 2012.  Both of those pregnancies were terminated at your instigation.  All of this offending was preceded by you fathering a child with your victim when she was a 15 year old child.

42You and your wife raised that child as your own child for a period until such time, as her real mother has now taken care of her.  There is a victim impact statement filed in this case. It was not in the usual form but came in the form of a short but very succinct email from your victim.

43She describes the impact of your offending upon her.  She suffers from long term depression and anxiety.  She grieves for her loss of self-respect and self-worth.  She states she trusts no-one, especially anyone around her children.  This affects her relationship with her husband.

44She has flashbacks about your offending leaving her crying and angry and confused.  She states that she wished that you had killed her.  The daughter she gave birth to is a constant reminder to her of your offending against her.  The impact of your offending against the victim cannot be overstated.

Personal circumstances

45Mr Tullipan, you are now 47 years old.  You commenced your offending for these offences when you were approximately 33 years old and continued until you were the age of 40.  There has been a delay of time between your last offending and today of some seven years.

46You grew up in Samoa.  Your mother was a teacher.  Your father was a farm labourer.  You describe your father as a harsh disciplinarian.  Both of your parents are deceased.  You are the second youngest child of six children in your immediate family.  You completed Year 12 in Samoa.  You then progressed to teach training yourself.  After one year of teaching in Samoa you moved to New Zealand.

47It is there, where you met your wife in New Zealand, and you married in 2001.  You have a son from that marriage who is now 14 years old.  You of course have a daughter aged nearly 13 who is the child of your victim in this case.  You are a permanent resident of Australia but a citizen of New Zealand.

48Whilst you lived in New Zealand you retrained as an automotive engineer.  For the past 13 years in Australia you have worked as a machine operator.  Your production supervisor, describes you as having an independent and strong work ethic.  He describes you as reasonable and courteous to your fellow workers and someone who has worked across all three shifts at that company for the last ten years.

49You have tendered references from a senior pastor of the Voice of Christ Full Gospel Church Inc and a student pastor of the Seventh Day Adventist Church.  Each of these men speak of your good moral character and the changes you have made to your life since these charges have been known.

50I note here that the victim states that she could not complain because you were high up in the church and no-one would believe her as far back as 2006.  Nevertheless, you are now described as a changed man, a God fearing man.  Both of your referee’s express surprise at your offending.

51You are the sole breadwinner of the family.  Your imprisonment will result in considerable hardship to your wife and child or children generally.  This hardship is a common feature of the collateral damage that offending such as yours inflicts on people other than your direct victim.  The hardship is not extraordinary to the extent of requiring any mercy to be exercised in your sentencing process.

Sentencing Considerations

52The basic purpose for which a court may impose a sentence are just punishment, deterrence, both specific and general, rehabilitation and denunciation of your actions and the protection of the community.  In sentencing you, I must have regard to a range of factors such as the seriousness of your offending, your culpability for it and your personal circumstances.

53I am also required to balance the interests of the community in denouncing your criminal conduct with the interests of the community in seeking to ensure as far as possible that you as an offender are rehabilitated and reintegrated into society.  I am also required to take into account current sentencing practices in fixing your sentence.

54That enquiry is directed particularly but not exhaustively to the kinds of sentences imposed in comparable cases and the statistics for those sentences at the time.  I have considered the statistics and the current sentencing practices mindful that each case must be considered in the light of its own particular circumstances and many of the cases would be distinguishable from your case as indeed they are from one another.

55The learned prosecutor filed a copy of the sentencing snapshots published in August 2020 to assist the court.  The sentencing snapshots for incest was updated a day before this hearing.  The snapshots are statistical analysis and do not take account fully the nature of a course of conduct offending which is applicable to Charge 1 in this case.

56Section 5(2F) of the Sentencing Act 1991 provides that in sentencing an offender for a course of conduct charge the court must:

(a) impose a sentence that reflects the totality of the offending that constitutes the course of conduct; and

(b) must not impose a sentence that exceeds the maximum penalty of the offence if charged as a single offence.

57The maximum penalty for Charge 1 in this case is 25 years' imprisonment.  The Court of Appeal in the case of McCray which is reported [2017] VSCA 340 stated as follows:

'Because the applicant was sentenced for multiple incidents of incest, albeit within the confines of a single maximum penalty, a sentence is imposed for single instances of incest could not provide any relevant guidance.  There are no sufficient statistical data or is no sufficient statistical data on the course of conduct charges of incest to be of sufficient weight to inform a court of the current sentencing practices for that charge.'

58Current sentencing practices of course are only one of the sentencing considerations and other sentencing principles apply in this case.  A just and appropriate sentence for the course of conduct incest offence will be informed by the nature of the sexual acts, the surrounding circumstances of the offending itself, threats or physical violence, the frequency and persistence of the acts, the age and other personal circumstances of the victim and the impact of the offending on the victim.

59The impact of the offending on the victim in this case has been very significant.  Your offending is extremely serious.  Your offending was sustained, repugnant in nature and disturbing and abhorrent behaviour.  The seriousness of your criminality is indicated by the following factors:

(1) The offending continued unabated for a period in excess of six years;

(2) The offending was a gross breach of trust.  Your victim was your adopted daughter;

(3) Your offending commenced when your victim was a 15 year old girl, a child.  She was particularly vulnerable because she was adopted by you and your wife when she was 14 years of age and the offending continued until she was 21;

(4) Your sexual offending was accompanied on occasions by threats, manipulation and physical violence by you in order to control your victim so as to conceal your offending or to prevent your victim from complaining about your offending;

(5) You did not wear a condom on any of the occasions of sexual intercourse, exposing your victim to pregnancy and potentially other sexually transmitted diseases.  On the issue of pregnancy even after the delivery of the first child, which is not part of this offending or the sentence, you still did not use a condom resulting in two further pregnancies, one in 2009 and one in 2012, both of which were terminated at your behest;

(6) Your offending was accompanied by demonstrable control you exercised over your victim by stating you owned her, limited her contact with biological family in Samoa, limited her contact with young boys or men including her now husband, and finally insisting that you have your family name tattooed on her back;

(7) The offending was perpetrated with fluctuating regularity from days to weekly to fortnightly as it suited your sexual needs;

(8) On some occasions you caused physical pain to your victim over and above the act of a sexual penetration itself.

60You have pleaded guilty to the two charges before the court.  Your plea of guilty was indicated at what is described as an early stage.  Your plea does have the utilitarian value of allowing for the orderly and effective administration of justice.  There is a certainty of outcome and a resolution of the substantive issues raised by your offending.

61Your plea allows for the preservation of the court and police resources to deal with other matters and your plea vindicates the public confidence in the legal process set up to protect the community.  Your plea obviates the necessity of your victim giving evidence at any court proceedings.

62Your plea is also a clear acknowledgment by you that you accept responsibility for your criminal behaviour on this occasion.  Your plea also recognises you are willing to facilitate the course of justice in the community and I accept that your plea of guilty to these charges indicates and demonstrates some remorse on your behalf.

63On the issue of your demonstrated remorse I note that you made limited admissions to Child Protection initially and then denied sexual relationship with the victim when you were interviewed by police.  I accept that you telling your church based referees would have been a big step for you and a sign of some remorse on your part.

64I also accept that your plea of guilty in the circumstances of the COVID-19 pandemic has substantial utilitarian value noting that the practical management of a jury trial has yet to be resolved in this state.  You have not sought to delay the finalisation of this case by conducting a trial on an unknown future date.

65In addition, it is relevant to take into account the impact of the lockdown restrictions that have been imposed as a result of the COVID-19 pandemic and that will be applicable to you and indeed on all the prisoners in the State of Victoria.

66As a result of those restrictions you will not have the opportunity for contact visits with your family and the COVID-19 restrictions have the additional factor, apart from the potential management unit that you will be going to, limiting the time that you will have to spend in your cell each day.

67Your placement and the COVID-19 restrictions also mean that you will have limited opportunity of participating in courses during the course of that time which will limit your rehabilitation in the early stages.  Those circumstances will mean that your time in custody will be and continue to be more onerous than otherwise would be the case for a prisoner in normal times.

68You will also be suffering more anxiety about the COVID-19 risk to yourself personally as you have no control over that risk or the control of that risk whilst you are in custody.  As I have said before, but I repeat now, I do not accept that the hardship that will be visited upon your family due to your incarceration amounts to the extraordinary hardship that requires a court to exercise mercy in this sentencing process.

69I accept it will be both difficult for you and your family that there will be no contact visits and that your family will be left in strained financial circumstances due to your income earning capacity being nullified by your imprisonment.  Unfortunately for offender's families through no fault of their own that result is commonly the case.

70You have no criminal history as you have reached early middle age this is a good sign for your rehabilitation.  On the other hand, your offending continued over an extended period of six years.  There is no clear evidence that you accept the wrongfulness of your offending beyond your plea of guilty to the charges.

71Your offending is specific to one victim.  The opportunity to reoffend against this victim has been removed.  I accept that you are a reasonable prospect for rehabilitation given the reinforcement you accept from your faith and your fellow members of your church. 

72You are to be sentenced as a serious sexual offender on Charge 2 on indictment after you are sentenced to imprisonment on Charge 1. The effect of being sentenced as a serious sexual offender is that the primary sentencing consideration is protection of the community.  It allows for a court to impose a disproportionate sentence to achieve the purpose of protecting the community.  The prosecution does not seek a wholly cumulative sentence, nor the imposition of a disproportionate sentence in your case.

73I will cumulate the amount of sentence in Charge 2 to reflect the additional criminality in Charge 2 without offending the principle of totality and imposing a crushing sentence upon you.  As I said earlier, you are a New Zealand citizen but have permanent resident status in Australia.

74In your case the relevant federal minister is required to cancel your visa on the basis of you not passing the good character test.  The only relevant exception would be a public interest application that you may make to the minister under the Migration Act.  That is a legal process outside the control of this court.

75The relevance of your removal from Australia at the expiration of your term of imprisonment in the sentencing process is as follows:

(1) Your deportation is an extra judicial punishment;

(2) The fact of your deportation will add to your anxiety and stress whilst in custody knowing that you will be sent home to New Zealand where you face the potential of being dealt with for other offending;

(3) Your deportation will have a direct effect on your immediate family who live in Australia and that is a further basis for anxiety for you whilst you are in custody;

(4) Your imprisonment and resultant deportation will mean that you forego the legitimate life that you had established here in Australia as attested to by your referees.  I take these matters into account as mitigatory of your sentence in these charges.

76The sentencing principles of general and specific deterrence, just punishment and denunciation of your actions and the protection of the community dictate that the only appropriate sentence is a substantial term of imprisonment with a non-parole period.

77Would you stand please? 

78On Charge 1, you are convicted and sentenced to nine years' imprisonment.  That is the base sentence.

79On Charge 2, you are convicted and sentenced to two years' imprisonment.  Six months of that sentence is to be served cumulatively upon the base sentence in Charge 1.  That is a total effective sentence of nine years and six months.

80I fix a non-parole period of six years and six months. Pursuant to s.6AAA of the Sentencing Act but for your plea of guilty I would have sentenced you to 12 years' imprisonment with a nine year non-parole period.  There is no pre-sentence detention to be declared.

81Pursuant to s.6F of the Sentencing Act you have been sentenced as a serious sexual offender having satisfied the definition under s.6B(2)(ac). 

82Under the Sexual Offenders Registration Act you have pleaded guilty to Charge 1 which is a class one charge and Charge 2 which is class four.  Pursuant to s.34 of the Sexual Offenders Registration Act I order that you are to report for life.

83Is there anything further I have to attend to?

84MR MOGLIA:  I do not think so, Your Honour.

85MR CAMERON:  No, Your Honour.

86HIS HONOUR:  Thank you.  Thank you, Mr Prosecutor.  Mr Moglia, my associate is obviously not here.  Can I just hand down - this is the sexual offender's register documentation and I will just hand that down to you - if you would be kind enough to attend if you wish or your instructor at the back of the court and explain it to your client?  Thanks, Mr Moglia.

87MR MOGLIA:  Given your associate is not present, Your Honour, I was just asking my instructor to witness that that is his signature.

88HIS HONOUR:  Thank you.  I was just going to cross it out and sign it myself but thank you.  I will just have that copied and give a copy to you.  Mr Tullipan, you acknowledge that you have signed this document?  Is that yes?  Thank you.

89I will just have one copy given to the prisoner, thank you.  Thank you, you can remove the prisoner, thank you very much.  Mr Prosecutor, do you know if the victim is listening to this?

90MR CAMERON:  The victim is not listening to this, Your Honour, but there will be a conference after Your Honour adjourns and the sentence explained.

91HIS HONOUR:  I was just going to say something to her but that is not possible, that is okay.  Thank you and thank you, Mr Prosecutor, and
Mr Moglia, thank you very much for your assistance in this very difficult case.  It is not easy for either of you or your instructor.

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