Director of Public Prosecutions v Tupua (a pseudonym)

[2022] VCC 1730

IN THE COUNTY COURT OF VICTORIA

AT Melbourne

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

DIRECTOR OF PUBLIC PROSECUTIONS

v

IOSEFA TUPUA (A pseudonym)

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JUDGE:	Leighfield
WHERE HELD:	Melbourne
DATE OF HEARING:	25 August 2022
DATE OF SENTENCE:	11 October 2022
CASE MAY BE CITED AS:	DPP v Tupua (a pseudonym)
MEDIUM NEUTRAL CITATION:	[2022] VCC 1730

REASONS FOR SENTENCE
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Subject:CRIMINAL LAW

Catchwords:              Sexual penetration of a child under 16 - indecent act with a child under 16 – victim impact – presumption of harm - plea of guilty – old age – low risk of reoffending - prospects of deportation – impact of COVID-19 – apology    

Cases Cited:Clarkson v The Queen (2011) 32 VR 361; R v Miller [1995] 2 VR 348

Sentence:                  Convicted and sentenced to a term of imprisonment of 4 years and 8 months, with a non-parole period of 2 years and 9 months

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APPEARANCES:	Counsel	Solicitors
For the DPP	Mr Jordan O’Toole (Plea) Ms Georgia Daniel (Sentence)	Office of Public Prosecutions
For the Accused	Mr James Fitzgerald	Victoria Legal Aid (Melbourne)

HER HONOUR:

Introduction

1Mr Tupua,[1] you have pleaded guilty to one charge of sexual penetration of a child under 16, where the child in question was under the age of 12 at the time of the offending (charge 1), and one charge of committing an indecent act with a child under 16 (charge 2). The maximum penalty for sexual penetration of a child under 16 is 25 years’ imprisonment where the Court is satisfied beyond reasonable doubt that the complainant was under the age of 12 years at the time of the offence. I note that no issue is taken in this case that the complainant was aged between 4 and 5 years old at the time of the offence. The maximum penalty for committing an indecent act with a child under 16 is 10 years’ imprisonment.

[1] Pseudonyms have been applied to all persons named within this sentence.

2Charge 1 arises from an incident in 2010 when the complainant, who is your step-granddaughter, was between 4 and 5 years of age and you were 58 years of age. Charge 2 arises from an incident which occurred between January 2014 and December 2015 when the complainant was aged between 9 and 10 years of age, and you were between 61 and 63 years of age.

Circumstances of Offending

3The full circumstances of the offending are set out in the Summary of Prosecution Opening for Plea dated 1 August 2022 which was tendered as Exhibit A on the plea. Whilst I will not refer to every matter set out in the opening in these reasons for sentence, it is necessary for me to set out the facts in some detail.

4The complainant in this matter is Nafanua Siulai, who was born in 2005. Nafanua is the daughter of your step-son Amosa Siulai, making her your step grand-daughter. You married Etena Tupua, who is the mother of Amosa Siulai and paternal grandmother of Nafanua in 1983 in Samoa. In 2005 you and Etena moved to New Zealand, and then in January 2010, you and Etena again moved – this time to Australia.

5In the period between March 2010 and December 2010 you were living at an address in Doveton with your daughter and her husband, who were also aunt and uncle to Nafanua. On an occasion during this period, Nafanua and her brother Pili, were also staying over at the address. You were home alone with both Nafanua and Pili, and the three of you were together in a bedroom. Pili was playing Xbox and Nafanua was on the floor leaning against the wall.

6You grabbed a blanket, covered Nafanua’s legs and sat down next to her. You then pulled her pants down and told Nafanua to take them and her underwear off. You placed your hands on Nafanua’s vagina, and rubbed her vagina with one finger. You then used that same finger to penetrate her vagina. Nafanua was moving around in an attempt to move away from you. You told her to ‘shoosh’ and not to tell anyone. Nafanua then told you she needed to go to the toilet, and it was at this stage that you removed your finger from inside her vagina. This conduct constitutes charge 1 – sexual penetration of a child under 16 years of age. After removing your finger from Nafanua’s vagina you pointed your finger and placed it inside your mouth. Nafanua was very uncomfortable and confused, and started to cry when she went to the toilet.

7It is asserted by the Prosecution, and conceded by you, that on five other separate occasions during the same time period as charge 1 you had inappropriate contact with Nafanua. On the first occasion you entered the guestroom of the house where Nafanua was sleeping and laid on top of her for approximately two minutes making her feel very uncomfortable. On the other four occasions you moved your head when Nafanua was attempting to kiss you on the cheek, and kissed her on the cheek and inserted your tongue into her mouth. These acts are relied upon by the prosecution to establish that your conduct towards Nafanua in 2010 was not an isolated incident – and accordingly you are precluded from relying on such a submission in mitigation on your plea. However, it is not the prosecution case that these incidents aggravate the offending conduct subject of charge 1.

8Some time later, in the period between 1 January 2014 and 31 December 2015, you and the complainant were at your daughter’s new house in Springvale.  You were holding your daughter’s new son who was approximately 10 months old at the time. You grabbed Nafanua by the arm in the hallway of the home and pulled her into your daughter and her husband’s bedroom. You locked the bedroom door and made Nafanua hold the baby. You removed Nafanua’s pants and told her to stand on the bed whilst she was holding the baby. You then laid down on your back facing the ceiling with your feet on the floor and forced Nafanua to stand over you. You used your arms to open her legs wider. You then put your mouth on Nafanua’s vagina and licked her vaginal area for a period which Nafanua describes as a ‘long time’. You ultimately stopped this behaviour when Nafanua asked to go to the toilet. This conduct constitutes charge 2 – indecent act with a child under 16 years of age.

9Your conduct towards Nafanua did not come to light until 1 February 2021 when Nafanua’s father spoke to her about your birthday celebrations. Nafanua started crying and walked away, before returning and telling her father that you had touched her. On 2 February 2021, Amosa Siulai rang your wife and told her that they would not be coming to your birthday party as you had raped his daughter.

10On 21 February 2021 a family meeting was held at your daughter’s home where a number of family members including yourself and Nafanua’s mother attended in person, and other family members attended virtually from Samoa. During that meeting you knelt down in front of Nafanua’s mother and apologised for what you did. You were crying whilst you did so. On 26 February 2021, you met with Nafanua’s parents again at a park and apologised for what had occurred. On 27 February 2021, you apologised to Nafanua for what you had done and asked her to ‘come back to the family’.

11On 19 August 2021, Nafanua reported the matter to police.

12You were ultimately arrested, interviewed and charged on 20 October 2021. You made a no comment record of interview.

Victim Impact

13I received a victim impact statement from Nafanua’s mother, Aperila Alovili, upon the plea. As admissible in this proceeding, Ms Alovili makes clear in her statement that as a result of your conduct she has issues with trusting people, including family members. Further Ms Alovili says that she blames herself that she was not able to be a support for her daughter whilst Nafanua was growing up and dealing with the trauma of your conduct, despite the fact that your offending against Nafanua was not known to the family at that time. Ms Alovili said that whilst she has forgiven you, she is still tired, angry and unhappy about the impact that your conduct has had upon Nafanua, and that her forgiveness of you will not take away what you did to her daughter.

14I did not receive a victim impact statement from Nafanua herself. However, even in the absence of a victim impact statement, a sentencing judge is entitled to draw reasonable inferences from the evidence before the court of any injury, loss or damage.[2] Moreover, the law presumes harm to child victims in circumstances such as the present.[3] It is apparent from the agreed summary of facts that at the time of each of the incidents your conduct made Nafanua feel uncomfortable, confused and upset. Moreover, it is clear that she was still suffering an impact from your offending many years later given her actions and reactions when your son spoke to her about your birthday celebrations. There can be no doubt that you caused trauma to Nafanua, and that the effects of that trauma have been and will continue to be long lasting.

[2] See, eg, R v Miller [1995] 2 VR 348, 354.

[3] See, eg, Clarkson v The Queen (2011) 32 VR 361.

15I have taken both this impact, and the impact described by Nafanua’s mother, into account in sentencing you.

Plea of Guilty and Remorse

16Your plea of guilty in this matter was not entered at the very earliest opportunity – having been entered after a section 198A examination hearing where the complainant’s mother and father were cross-examined. However, it is still a plea which carries substantial weight and, in my view, is reflective of remorse when considered in light of your earlier apologies to the complainant and her parents in 2021 prior to the matter being reported to police.

17Mr Fitzgerald submitted on your behalf that your plea has spared a majority of the witnesses, and in particular the complainant, from having to give evidence in this case and has spared the community and the court the time and expense associated with running a trial. Further, he submitted that the timing of your plea – having been entered during the pandemic when there remains a considerable stress on the criminal justice system – results in your plea being of greater utilitarian value than it would have been in non-Covid times. I note that none of these matters are disputed by the Prosecution.

18I agree with Mr Fitzgerald’s submissions and am of the view that your plea both facilitates the course of justice and is of significant utilitarian value. Your plea has saved the cost and time of a trial being conducted, which is of additional value in the current circumstances of the pandemic which has caused unprecedented disruption to the smooth running of the justice system. As already noted, I am also of the view that your plea evidences remorse for your conduct, despite you still having limited insight into the impact on the victim of your offending.

19Overall, taking each of the above matters into account, I accept that you are entitled to a substantial discount on your sentence by reason of your plea of guilty. 

Gravity of the Offending

20I turn now to the gravity of your offending conduct. Without doubt, this was very serious offending. You committed these offences in circumstances where there was a significant age gap (in excess of 50 years) between you and the complainant. Further, there was a significant breach of trust involved in respect of both incidents given that you are Nafanua’s step-grandfather and she was in your care at the time of both charges. You were supposed to be caring for Nafanua when she was with you, and both she, and her parents, were entitled to expect that she would be safe when she was in your care. You breached the trust that both she and her parents had in you, and you did so in a significant way.

21Turning specifically to charge 1, the offence of sexual penetration of a child who is under 12 years of age is, of itself, an objectively serious offence as reflected in the maximum penalty of 25 years’ imprisonment prescribed by parliament. There is no hierarchy of seriousness for different types of penetrative offences. Whilst digital and oral penetration do not ordinarily involve the same risks associated with penile penetration, that does not necessarily mean that the offending is less serious. An assessment of the gravity of penetrative offending involves a consideration of the circumstances in each case. Here Nafanua was very young and vulnerable – being somewhere between 4 and 5 years of age when you penetrated her vagina with your finger. Further, you were coercive in the sense that you directed her not to tell anyone what had happened – a direction which Nafanua followed for many years until she finally told her father in 2021 what had happened. In my view, the combination of these factors, together with the significant breach of trust and the significant age gap between the two of you makes this a serious example of what is, already, an objectively serious offence.

22Turning specifically to the circumstances of charge 2, I note that whilst this offence occurred some four or five years after the conduct the subject of charge 1, Nafanua was still young and vulnerable at the time of this offending, being somewhere between 9 and 10 years of age. Further, I am of the view that the level of indecency involved in the act of having a young child stand above you and hold a baby whilst you lick her vagina is high. In my view, the combination of these factors, together with the significant breach of trust and the age gap between the two of you also makes this a serious example of an indecent act with a child under 16.

Personal Circumstances

23You were born in Samoa in 1952 to your parents Setu and Asoese. You are one of nine siblings born to your parents, some of whom now live in Australia, and some who still live in Samoa.

24You grew up in a rural village in Samoa and your parents worked on a plantation where coconuts, cocoa, bananas and faro were grown. You attended school but only completed two years of schooling. You learned to read and write in Samoan and learned very basic English. However to this day you still have poor English language skills and require the assistance of English-speaking family members to interact within Australian society. You recall a relatively happy early childhood – there were no issues within the household in relation to alcohol, drugs, or family violence, and your family was a tight-knit group. However, unfortunately, when you were about 11 years old, your father passed away. He was quite elderly and had been sick for some time.

25In the aftermath of your father passing away, you and one of your brothers started working on the plantation to help support your family. It was at this point that your formal education ceased and you ended up working on the plantation until you were about 30 years of age.

26When you were in your early thirties you met your wife, Etena. She was the daughter of the pastor at your local church and you met her through your involvement in the church. You married in 1984 and on your report had a loving and happy marriage. Etena already had two children of her own – one of whom is Nafanua’s father, and the two of you went on to have three more children together and to adopt a fourth child. You have a close relationship with all of your children and I note that many of them were present in court, some with their partners, in support of you on the plea.

27Not long after you and Etena married you moved as a family to live in the capital city, Apia, where you worked on the roads. You also continued to do some plantation work on occasion. In 2005 you all then moved to Wellington in New Zealand for better employment and educational opportunities. You took on work in the cleaning and demolition fields whilst you were living there. You also became a New Zealand citizen.

28Then in 2010 you again moved as a family – this time to Australia. You stopped working at this point, and devoted your days to spending time with your family and babysitting your grandchildren whilst their parents worked. Your daughter provided a reference in support of you on the plea, noted that you were also the person who would provide the meals for those in the family who were working.

Alcohol Use

29Up until four years ago, you had been a heavy drinker of alcohol. You started drinking alcohol when you were eighteen years of age. At that point in time, you were drinking home-brewed beer which was very strong. You would drink mostly on weekends, and you would drink heavily to the point of being drunk. Over time your drinking developed to the point where you were drinking between eight and ten bottles of beer each day. You continued to drink heavily, in this manner, throughout your life. You told psychologist Carla Lechner, who assessed you for the purposes of this plea, that you were abusing alcohol at the time of your offending and acted on impulse. It was only when your children insisted that you must stop drinking approximately four years ago, that you did so. According to Ms Lechner you fulfil the criteria for a diagnosis of Alcohol Use Disorder – now in recovery. 

30Over the past 10 years you have also developed a number of medical issues including diabetes and hypertension. I received a letter from your general practitioner confirming that you suffer from multiple medical conditions including very poorly controlled type 2 diabetes. You do need to take medication in regard to a number of your medical conditions, and these conditions will need to be carefully monitored in custody.

Risk of Re-Offending, Age and Prospects of Rehabilitation

31As I have already noted, you were assessed by Ms Lechner for the purposes of the plea. You told Ms Lechner that you did not want to talk about the offending; and that you had apologised for it and put it in the past. Ms Lechner noted that when she asked about why your behaviour was wrong you had immense difficulty in responding stating that you did not understand the question. When asked about the impact your offending might have on the victim you told Ms Lechner that you did not really know what the impact would have been. However, you did go on to say that you knew that Nafanua would find it hard to trust you again, and you also stated that although you have apologised to Nafanua you know that it won’t change what you did. Ms Lechner was unable to say whether your reluctance to discuss these matters was due to embarrassment, shame or genuine limitations on your understanding.

32Ms Lechner utilised STATIC-99 and RSVP tools to assess your risk of re-offending. In her opinion, although you fulfil the criteria of a diagnosis of paedophilic disorder (given that your offending occurred prior to the victim reaching puberty), because your sexual interests do not appear to extend beyond the victim, you are better described as a ‘regressed child molester’. Ms Lechner explained that this category of child sex offender usually has low self-esteem and poor coping skills and turns to children as a sexual substitute. Further, she noted that for this category of child sex offender, precipitating stress may play a bigger role in the molesting behaviour and the main victim criterion is availability, which is why many of these type of offenders molest their own children or grandchildren. Ms Lechner was also of the opinion that you lack insight regarding the seriousness of your actions and the impact your actions have had on the victim. 

33Despite this, Ms Lechner concluded that you still fall into the low risk category of sexual re-offending compared with other sex offenders under both the STATIC-99 and RSVP tools. Further protective factors in your case include your abstinence from alcohol, and the disgrace you have brought upon yourself within the family. Ultimately Ms Lechner was of the opinion that you would benefit from pastoral care, with an emphasis on psycho-education and the very serious nature of your offending, as well as discussions that encourage greater empathy.  She noted that you were unlikely to benefit from attendance at a specific program for sex offenders in light of your low risk level and the language barriers which you face.

34Mr Fitzgerald, on your behalf, submitted that in the circumstances you should be considered to have good prospects of rehabilitation given your lack of prior convictions; your abstinence from alcohol over the past four years; the fact that you have not committed a further offence since 2015; the support of your immediate family; and Ms Lechner’s assessment of you as being at a low risk of re-offending. Further, Mr Fitzgerald submitted that the fact that you are now 70 years of age should be taken into account in sentencing both as a protective factor in terms of your rehabilitation prospects, but also through an acknowledgment that any sentence imposed will represent a significant percentage of your remaining years.

35Mr O’Toole conceded that by reason of your age and your lack of criminal history, specific deterrence and protection of the community have less of a role to play in your case than they might otherwise have. However he submitted that general deterrence, denunciation and just punishment are all still significant sentencing considerations.

36I accept and agree with the submissions made by both counsel. I am of the view that, despite the current limitations on your insight into the impact of your offending against Nafanua, you do have good prospects of rehabilitation given each of the matters relied upon by Mr Fitzgerald. I also agree that your age is relevant in the manner contended for by both Mr Fitzgerald and Mr O’Toole. Given these matters I also agree with counsel that in the present case limited weight needs to be accorded to specific deterrence and community protection. However, significant weight still needs to be accorded to general deterrence, denunciation and just punishment as the predominant sentencing purposes given the gravity of your offending, and the need to both demonstrate the abhorrence of the court and the community of this kind of offending, and deter others in the community from acting in the same way.

Impact of Covid-19 and Prospects of Deportation on Burden of Imprisonment

37In determining the length of sentence to be imposed, Mr Fitzgerald also submitted that I should take into account that the burden of imprisonment upon you will be increased by reason of the Covid-19 restrictions which are currently in force in custody, as well as the weight of the knowledge that there is a real likelihood of you being deported upon completion of your sentence. Mr O’Toole did not take issue with these submissions.  

38Insofar as the Covid restrictions are concerned, at minimum you will be subjected to at least one period of quarantining and isolation (which you have already undertaken following your remand), will have some limitations in face to face contact with family and friends (albeit these restrictions are in the process of being lifted), and will have restricted ability to access courses, programs, and rehabilitative opportunities whilst in custody. The limitations on face to face contact with family, whilst they remain, will be particularly onerous for you as someone who is very dependent upon, and connected to, your immediate family.

39Turning to the prospects of deportation, I am informed by Mr Fitzgerald that whilst you have been living in Australia since 2010, you are neither a citizen, nor a permanent resident of Australia, and are subject to the deportation provisions under the Migration Act 1958 (Cth). You will face mandatory cancellation of your visa if a term of imprisonment greater than 12 months is imposed – which it will be in this case. Mr Fitzgerald submitted that the prospect of being deported renders your imprisonment more onerous. Further, should deportation occur, it would constitute an additional punishment because it destroys the opportunity for you to remain in Australia in circumstances where your immediate family resides in Australia and you are reliant upon them.

40I am satisfied that in this case there is a real prospect that your visa will be cancelled and that you will be deported given the nature of the offences and the length of sentence which I will be imposing upon you. I have taken both this, and the added burden of imprisonment by reason of the Covid restrictions, into account in your favour in sentencing you. 

Sentencing Submissions and Comparable Cases

41Mr O’Toole, on behalf of the prosecution, submitted that the only appropriate disposition in the present case is a term of imprisonment with a non-parole period. He referred the court to the case of DPP v Sandilands (a pseudonym) [2019] VCC 1343 as a broadly comparable case, whilst acknowledging that each case turns on its own facts and the sentence imposed is not binding. Mr Fitzgerald similarly conceded on your behalf that the only appropriate sentence in all of the circumstances is a sentence of imprisonment with a head sentence and non-parole period.

42I have had regard to the case to which I was referred by Mr O’Toole, as well as to current sentencing practice more generally. The cases which I have looked at are of assistance as examples of the application of the relevant sentencing principles applicable in the area, and can be used as yardsticks that may be able to illustrate (although not define) the possible range of sentences available. However, ultimately, whilst I have had regard to previous sentences imposed and the issue of comparative sentencing and current sentencing practices more broadly, I have sentenced you in this case on the basis of the application of the principles to the specific facts of you and your case.

43I agree with both counsel that, taking into account all of the mitigating and aggravating factors in this case, and also the principles of totality and parsimony, that the only appropriate disposition in this case is a term of imprisonment with a non-parole period. I have endeavoured to impose a sentence which gives appropriate weight to each of the relevant sentencing purposes including rehabilitation, whilst at the same time being an appropriate sentence if you are required to serve every day of that sentence in custody.

Sentence

44Mr Tupua, you are sentenced as follows.

45On charge 1, sexual penetration of a child under 16, you are convicted and sentenced to a term of imprisonment of 4 years. This is the base sentence.

46On charge 2, committing an indecent act with a child under 16, you are convicted and sentenced to a term of imprisonment of 20 months.

47I order that 8 months of the sentence on charge 2 be served cumulatively on charge 1.

48That makes a total effective sentence of 4 years and 8 months.

49I order that you serve a minimum of 2 years and 9 months before being eligible for parole.

Pre-Sentence Detention

50The period of 47 days of pre-sentence detention, not including today’s date, is hereby declared as having already been served in respect of this sentence and I order that such declaration and its details be entered into the records of the court.[4]

[4] I note that this pre-sentence detention has accrued as a result of Mr Tupua being remanded into custody on the date of the plea, and the sentence having to be adjourned for an extended period due to issues with obtaining an interpreter.

Section 6AAA Declaration

51Pursuant to s6AAA of the Sentencing Act 1991, I indicate that had you pleaded not guilty to the charges for which you received a term of imprisonment today and been convicted of them, you would have been sentenced to a total effective term of imprisonment of 6 years and 9 months with a non-parole period of 4 years and 6 months.

Custody Management Issues

52Mr Fitzgerald, whilst I have already done this when I remanded Mr Tupua into custody, I will again note as custody management issues that this is Mr Tupua’s first time in custody, that English is his second language, and that he suffers from a number of medical issues including poorly controlled Diabetes Type 2 for which he has been receiving medication.

Registration Pursuant to the Sex Offenders Registration Act 2004

53As a result of your convictions and sentences on charges 1 and 2, you have become a registrable offender under the Sex Offenders Registration Act 2004 (Vic). You are required to comply with the provisions of that Act. Charge 1 is a Class 1 offence under the Act, whilst charge 2 is a class 2 offence. As you have been found guilty of a class 1 offence and one or more class 2 offences, the length of the reporting period is life.

54I must issue you with a Notice of Reporting Obligations, and a copy of that Notice will be provided to you at the prison later today.

Ancillary Orders

55I note as a matter of completeness that no other ancillary orders are sought.

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