Director of Public Prosecutions v Tuuga
[2020] VCC 1828
•18 November 2020
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-20-01245
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| LATU TUUGA |
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JUDGE: | HIS HONOUR JUDGE SMALLWOOD | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 16 November 2020 | |
DATE OF SENTENCE: | 18 November 2020 | |
CASE MAY BE CITED AS: | DPP v Tuuga | |
MEDIUM NEUTRAL CITATION: | [2020] VCC 1828 | |
REASONS FOR SENTENCE
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Catchwords:
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APPEARANCES: | Counsel | Solicitors |
| For the Director | Ms E. Finnigan | Office of Public Prosecutions |
| For the Accused | Mr P. Randles | Randles Cooper & Co Pty Ltd |
HIS HONOUR:
1 Latu Tuuga, you have pleaded guilty to five charges of sexual penetration of a child under the age of 16 years and one charge of attempted sexual penetration of a child under the age of 16 years. Those crimes carry maximum penalties of 10 years and five years respectively.
2 You are now 54 years of age. You were around 41 or 42 years of age at the time of the offending. You have pleaded guilty at a relatively early stage upon your ultimate apprehension and you must get the benefit of that plea of guilty. I accept that you now express appropriate remorse in relation to the matter and clearly this is a set of circumstances where the utilitarian benefit of that plea of guilty must be recognised. You have no prior convictions and you have no subsequent matters, as I understand it, alleged against you. The offending took place over a period of a few months. All those matters obviously go very much in your favour.
3 Because of the matters that you stand convicted of, you will be placed on the Sex Offenders Register and I must advise you that the reporting conditions will be for life. As I understand it, the prison will give you one of those but, in any event, I think all I can do is endeavour to send one to the prison and try and have it given to you in that fashion. Also, because of the sentences I impose, from Charge 3 onwards you will be sentenced as a serious sex offender. I am aware that the provisions are that that be cumulative unless otherwise ordered.
4 For reasons of totality, I will be so otherwise ordering. I am aware that the principle sentencing purpose becomes community protection and it is not a situation where the Crown seek a disproportionate sentence which I would not have given in any event. This is a set of circumstances where you have been involved in a very lengthy delay.
5 The offending took place in 2007, you were not charged until the end of 2008. You, by that stage, had gone back to New Zealand from whence you had come, and I accept that, at the time that you left, you had not been charged. You returned to Australia in around about 2018 and say that you were unaware that there were warrants out against you. I will accept that that is the case. I have some reservations about your state of knowledge about other matters but I do not need to go into that. In any event, it was after your apprehension through a routine traffic investigation, as I understand it, that these matters all came to light. You must get the benefit, in one sense, of that delay. That delay, mind you, is not attributable with the Crown and is not attributable to any misconduct on your behalf.
6 In your set of circumstances, there clearly has been a significant rehabilitation. In so far as delay is concerned, there is a lot of authority on that but I will just simply quote briefly from what Justice of Appeal Callaway said in the matter of MWH. He said this, 'A significant list of matters that come out of delay,' and he said, 'The most important potential effect of delay, namely, rehabilitation. The person standing for sentence may have been rehabilitated in one or more ways. He may have given up a form of substance abuse that contributed to the offending. He may have reordered his life. He may have changed morally so that, quite apart from being older, he would not be likely to reoffend. He may have suffered genuine remorse in the sense of repentance, not just sorrow of being caught and fear of punishment. So far as possible, a lengthy process of rehabilitation should not be halted or endangered by the sentence imposed.'
7 I am well aware of that and obviously take those matters into account. However, as is properly conceded by your counsel, a significant sentence of imprisonment is inevitable in the situation that I am about to describe. I also take into account that the sentence that you will now undergo, having been now in custody for two days, will be commenced at least in the COVID-19 environment. I am aware that you, as I understand it, upon being put into custody, will be put into or have been put into isolation. I am aware that, in your circumstances with a family, that you will not be able to have contact visits and I am very much aware that that is a serious difficulty for prisoners, particularly for someone such as yourself who has never been in prison before, to lose that family connection.
8 In your situation it is inevitable, in my view, that upon either the end of your minimum term or the end of your entire sentence, you will be deported back to New Zealand. I sentence you on the basis that that is the understanding that you have and that the life that you were endeavouring to make in Australia will be taken from you. You do have a wife and two children and I am not sure as to what is going to occur with them. They have very little support in this country and I do not know whether they will stay here while you undergo your sentence or what is going to become of them. They are, again, matters that I take into account as playing upon your mind whilst this sentence is undergone.
9 A related offender has been sentenced by Her Honour Judge Wilmoths ten years or so ago and I will be referring to that again shortly.
10 You were born in New Zealand and at the time of the offending were 41 to 42 years of age. You came to Australia in 2006 and you moved into your sister's house before moving in with a brother and his family. You are known by other names including 'David' and 'Latu Liati'. You soon became a member of a community church during that time. You regularly attended that church. You became familiar to many people, including the victims and their families. In this situation, I am not going to refer to the victims by their name because of the anonymisation provisions. It is a situation which I say to the victims, if they are listening, I have not been told whether they are or they are not, that it is in no way a means of disrespect. It is simply something I have to do so you cannot be identified by anybody accessing this judgement.
11 In any event, the victim R was born in New Zealand as well. She, with her parents, came to Melbourne in 1995 and began living in the same area that you were. Her father was involved in the same church that you were and her family was very popular within the local Samoan community from where she originally came. She lived with her family at that address and was in year 10 and aged 15 at the time of the offending against her.
12 The second victim who is known as F was born, again, in New Zealand in 1992 and was 14 at the time she was offended against. Her family had come to Australia in 2005 and moved to the same area and her family were going to and members of the same church as you and the other victim. The two families of the victims were close and the victims themselves became close friends it is understood. You met and became close to F's family some time in 2006 who you had met through a cousin of yours, a Mr Taefu - who I will refer to again in a moment - and you often visited their family. Victim F's mother used to call you son.
13 In any event, in June of 2007 a member of the church visited the home of F having heard rumours that there had been offending against R. A number of meetings occurred and it became clear that you had in fact, by the time VARE tapes were made, been involved in offending against each of the two victims. There were meetings between families, as I have said. Admissions were made certainly by Taefu. He was arrested back in 2007. You, as I said, were not charged at that time and went back to New Zealand at some time in 2008.
14 In any event, the first act of sexual penetration is with R and occurred in early 2007, probably around March. You obtained her phone number and began to text her. One morning you asked her to meet you at a Safeway between 8 am and 9 am on a school day. She skipped school, met you and got into the car you were driving. You told her that you were going to go and get some food. She thought she was being driven to Dandenong but in fact not where she was being driven. She was taken to a house that was occupied by friends of yours. You left her in the passenger seat in the car, and went inside to tell them that you had brought your new girlfriend to the house. She was invited into the house.
15 The people in the house left to run some errands, leaving you and the victim at the house for about an hour. Upon their departure, you went to a bedroom and told the victim to come to you, which she did. She turned off the light as asked, sat down on the bed upon which you lay. You then grabbed her, told her to take her clothes off. She became scared but did what she was asked. You undid her bra, she complied with that, and she complied with your request to take off her underpants. You kissed whilst lying in a missionary-type position, sucked on her nipples, had sexual intercourse with her for a number of minutes. She describes that her vagina was hurting. You both laid on the bed for a short time afterwards and eventually left the house after the occupants arrived back. You dropped the victim back at school.
16 Sometime later, probably still in around March of that year, you again made contact with her and asked her to meet you at a Safeway near the school. You drove a van at the time and told her to sit in the back, which she did. After a short time you stopped the van and told her to get into the front, which she did. You drove to a nearby reserve and parked the van and asking her if she had said anything about your earlier visit to your friend's place. She said she had not. You got into the back of the van and told her to get into the back. She said no but eventually entered the rear section after you told her you just wanted to talk. She sat away from you but moved closer when asked by you. You grabbed her, pulled her towards you. She said that you laughed as she got scared. You pulled her pants down and had sexual intercourse with her for about three minutes. You got off and pulled your pants back up and she ended up walking home because school had nearly finished.
17 Charge 3 is a representative charge of two separate penetrations in short succession. These matters occurred a few weeks after the matters that I already described and happened at F's household. At night you rang victim R telling her to come out of the house and meet you to talk. She said that she could not. You insisted and stated that you will be driving over to the house in any event. She went outside and approached you sitting in the car with the intention of telling you to go home. You asked her to get into the car. You drove to a football oval. You learnt from her that F's father was soon to be finished work and coming home. You drove towards her sister's house.
18 Once inside her garage, she sat on the end of the bed and told you that she wanted to leave. When she got up to leave, you grabbed her, pulled her towards you and told her to take her clothes off. She took off her bra and you asked her to take off her underwear. She was scared as you climbed on top of her and had sexual intercourse. At the time of having sexual intercourse, you stopped and asked whether she was hungry and you went into the house and came back with a plate of food which you ate. You then got onto the bed and had sexual intercourse with her again. You refused to drive her back to F's house straight away and the two of you walked back to the house. You told her to tell everyone that she had 'just hung out' with you. That's Charges 1, 2 and 3, vaginal penetration.
19 Charge 4 is a charge of attempted sexual penetration and, again, she was staying at F's household and you were also sleeping at that house, which was a fairly common occurrence. Whilst she was in bed she received a text message from you saying something along the lines of, 'Come upstairs so I can talk to you.' You repeated it. Eventually she went upstairs and met with you in the bedroom. You grabbed her, pulled her towards you on the bed, pulled down her pants and bra before getting her into the missionary position and touching her breast. You then attempted to put your penis in her vagina but it 'didn't work'. She felt your penis but it didn't enter her vagina. You told her to sit on top of you, which she tried, and again, you couldn't penetrate her.
20 She saw you subsequently after this last event when she was at church but there was no further contact between you. She told her friend F about the offending and F told R that you were having sex with her. They are the charges that relate to the victim R.
21 Charges that relate to the victim F. You were very familiar with her family and the first offending against her happened in March of 2007 which is, of course, the same time as offending was occurring in so far as R was concerned. You picked F up from school at lunch time. It had been prearranged between the two of you and you indicated that you wanted to talk to her. She apparently forged a letter to convey to the school that she had an appointment during the day and would miss her afternoon classes. After picking her up you drove her to a reserve near the school, parked the car, told her to take off her clothes. She initially refused. You got out of the car, walked over to the passenger side, grabbed by the hands and led her to the back seat of the car and laid her down. You took off your own clothes while she felt scared that if she didn't do as asked you would leave her at the park. You had sexual intercourse with her. She told you to stop and began crying and you stopped. That's Charge 5.
22 Charge 6, some time probably in April of 2007 you again picked the victim up from school at around about 2.30 pm. She then used a letter to convey to the school that she would miss afternoon classes and you drove her to the same reserve and said, 'Do you want to talk about the first time we had sex.' You took her clothes, grabbed her by the hand, led her to the back seat, lay on top of her and had sexual intercourse with her. It hurt and she told you to stop. You did stop and described it as a 'waste of time'.
23 You were arrested in July of 2007 and not charged at that stage. You were told you may receive a summons. No summons was forthcoming until December of 2008 at which stage I accept that you had gone back to New Zealand which you were perfectly entitled to. It is from there that those issues of delay arise and I have already mentioned those. There were no victim impact statements before me but it is common knowledge the effect that this sort of offending has on girls of that age, particularly by people who are in a position of trust. You were involved with the church and with the families. There is obviously in your situation, in my view, a predatory element about it all and both of the victims seemed to have been at least intimidated by you, even though I accept that there was no direct threats made and, as I pointed out to you in the course of the plea, I will have to be very, very careful to sentence you for sexual penetration, not any form of rape.
24 The offending is clearly serious. You were 42, the two girls were 14 or 15. This isn't a situation that sometimes arises with a 20-year-old and 14-year-old where there is a purported relationship with some sort of relativity to the meeting of minds. This is a situation where you are very much an adult and I think it can only be said that there obviously has to be a power aspect involved in all this grossly disproportionate to what the child would be able to resist or complain about. I refer to the decision of Esposito from many years ago where the court said that societies must protect their children, particularly from those in a place of trust. We are all aware that those principles must be put into place.
25 It calls for the application of general deterrence. It is a situation where specific deterrence is problematic for reasons I will explain in a moment. Clearly, there must be denunciation and there must be appropriate punishment. I then turn to matters personal to you. It is conceded that there must be a gaol sentence with a non-parole period. No other disposition would, in my view, be even remotely appropriate.
26 And the next matter I look to is what occurred with your co-accused. Your co-accused was Mr Leiataua and it is clear that, from reading the sentencing remarks of Her Honour Judge Wilmoth back in October of 2009, that you, I understand to be David, were introduced to the two girls by that man. His offending is different to yours in a sense and I will explain again in a moment how this all comes about. He received a sentence of five-and-a-half years with a minimum term of two-and-a-half and there was three victims. The victim F is the same victim of his was one charge of indecent act and with R there was one charge of indecent act and four charges of penetration. Those charges of penetration occurred within a very short timeframe, literally within an hour or so of charges of individual counts and he received a cumulation on each of those. You have a representative count, it seems to me and I say this with the greatest respect, that to be in that scenario that is described, of penetrations within a very short period of time that the sentence of Her Honour could be described as stern.
27 In affect he, in those circumstances, received an overall sentence for R, on my calculation, of five years. He was given three years for each of the charges and, again, I have made my personal comment about that. The difference of course here is that his was two incidents, one of which was only an indecent act. You have, in your circumstances, four quite distinct and separate deliberate intended sets of offending. Also, F, in your particular situation, has been penetrated on two occasions not subject of indecent act. On one occasion I think the nature of the indictment faced by your co-accused was such that yours is a more serious one. However, matters of parity, if it can be called that, in these circumstances must play a part in this. Your counsel's sensible submission was that that was a starting point but that your personal circumstances were such that you should receive a lesser sentence than him. So I start from that premise.
28 In my view, whilst Her Honour was stern, and I say that with the greatest respect, the indictment against you, in my view, is a more serious one involving more serious and prolonged offending. However, as I have already indicated, in this proceeding there has been a very significant delay. Your co-accused was not sentenced on the basis of being subject to deportation as you will be and your co-accused was not sentenced in the COVID-19 set of circumstances that exist at the present time. Those matters go in your favour.
29 Coupled with those matters is the effect of the delay, and I refer back to what Justice of Appeal Callaway has said, the situation with you is, as pointed out by your counsel, you are now 54, you are one of eight children. You went to secondary school, leaving school worked in the customs department and from Samoa at the age of 22 you moved to New Zealand to get better employment. You quickly found store work and was able to support your family who had remained in Samoa. You came to Australia for a short stay in 2006 to live with your sister and then with a brother who had moved to Australia. You, as it has been pointed out, became acquainted with the victims and their families through a church that you were all members of.
30 After returning to New Zealand in 2008 you resided in Auckland. In 2009 you married and now have two children. You returned to Melbourne with your family in 2018 and obtained work and I have references from them. You have resigned that work a week ahead of these proceedings, sensibly but being aware of the only consequence that could follow. I accept that your wife and children have very little support, certainly from family, in this country. There may be more support from the church. I accept that you are the sole provider for your family and it will have a significant effect upon them, you being incarcerated. It does not give rise to exceptional circumstances but they are matters that obviously must play on your mind as you undergo this sentence.
31 There are a number of references which I have read and which I take into account which clearly show that you have got no priors before this offending and would appear to have behaved in an exemplary fashion after it all. It is exactly what Justice Callaway was talking about, that there should be a reluctance by the court to interfere with rehabilitation but of course that has to be sensibly balanced against the nature of what you did which was a relatively prolonged, albeit a few months, process of a 41-year-old sexually penetrating two children. You had plenty of time to think about it and you persisted.
32 The prospects of your rehabilitation, as I think I would have alluded to, should be good and the risk of you reoffending is low indeed and specific deterrence does not need to play such a par. But as was said in Esposito, matters of general deterrence become very important in these circumstances. People must know that you cannot, particularly when you are in a position of trust and in a position of power, use children for your own sexual gratification and the sentence that I impose must reflect that and make it obvious to others that that is in fact the case. That incorporates the concepts of appropriate punishment and denunciation as well. You clearly are able to work, there is no reason why you should not go to work when you get out. There are no psychological difficulties, you don't appear to have any drug or alcohol issues, so hopefully at the conclusion of your sentence you will be able to resume a relatively normal life. As I understand it, it would be highly debatable when that is because of the way that immigration now treat these matters and, obviously, whatever that future holds, it will be in New Zealand, not in this country.
33 So taking all those matters into account in the best way that I can with the competing aspects of all this:
34 On Charge 1, two years;
35 On Charge 2, two years;
36 On Charge 3, two years;
37 On Charge 4, 18 months, they are the matters relating to Victim R; now, Victim F;
38 On Charge 5, two years; and on Charge 6, two years.
39
I direct that eight months of the sentence imposed on Charge 2, eight months of the sentence imposed on Charge 3, six months of the sentence of the sentence imposed on Charge 4, 12 months of the sentence imposed on
Charge 5, and six months of the sentence imposed on Charge 6 be served cumulatively upon each other and upon the sentence imposed on Charge 1. That gives a total effective sentence of five years and four months. I direct that you serve a minimum term of three years before becoming eligible for parole and I direct that two days be recommended as having been served under this sentence.
40 I point out in so far as the related accused is concerned that you are both of similar ages, both of similar backgrounds and, as I understand it, neither of you had priors. So in terms of your personal circumstances at the time of the offending, there is very little to choose between you but hopefully I have outlined the distinctions and counter distinction that can be made. Pursuant to s.6AAA of the Sentencing Act so that you understand the benefits that you received off pleading guilty, so that but for you pleas of guilty you would've been sentenced to be in prison for a period of eight years with a minimum term of five.
HIS HONOUR: All right. There's no other rulings I need to make, Ms Finnigan or
Mr Randles?
MS FINNIGAN: No, Your Honour.
HIS HONOUR: No, all right. Yes, I'll just - because you need to talk to your client. It'll just be for a minute though, Mr Randles, because another matter's got to come straight on.
MR RANDLES: All right, thank you, Your Honour.
HIS HONOUR: If you want to talk to him on the phone that's fine, but I can't give you - like, literally 30 seconds. All right, thank you for that.
MR RANDLES: All right.
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