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DPP v Polat (a pseudonym)

DPP v Polat (a pseudonym)

Case [2020] VSCA 174 25 June 2020

Appeal

Sentencing

Breach of Trust

Psychological Manipulation

Presumption of Cumulation

Criminal Law

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2019 0047

DIRECTOR OF PUBLIC PROSECUTIONS	Appellant
v
TARKAN POLAT (a pseudonym)[1]	Respondent

[1]To ensure that there is no possibility of identification of the victim of the sexual offending, this judgment has been anonymised by the adoption of a pseudonym in place of the name of the respondent.

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JUDGES:	MAXWELL P, BEACH JA and CROUCHER AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	6 March 2020
DATE OF JUDGMENT:	25 June 2020
MEDIUM NEUTRAL CITATION:	[2020] VSCA 174
JUDGMENT APPEALED FROM:	[2019] VCC 92 (Judge Wilmoth)

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CRIMINAL LAW – Appeal – Sentence – Crown appeal – Incest (four charges), sexual penetration of child under 16 – Sentence of 6 years’ imprisonment on each incest charge – Cumulation of 9 months of each sentence – Total effective sentence 9 years and 3 months’ imprisonment, non-parole period 6 years – No challenge to individual sentences – Whether orders for cumulation resulted in inadequate total effective sentence and non-parole period – Objectively serious offending – Breach of trust, abuse of parental authority – Psychological manipulation – Offending persisted over long period – Increased culpability with successive offences – Respondent sentenced as serious sexual offender on two incest charges – Presumption of cumulation – Whether orders for cumulation reflected separate criminality of individual offences – Appeal allowed – Orders for cumulation set aside – Resentenced to 12 years and 6 months’ imprisonment, non-parole period 9 years – Sentencing Act 1991 ss 6D, 6E.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Ms D Piekusis QC with Ms A Roodenburg	Ms A Hogan, Solicitor for Public Prosecutions
For the Respondent	Ms S Flynn QC with Dr J McColl	Victoria Legal Aid

MAXWELL P
BEACH JA:

Summary

On 24 September 2018 the respondent (‘TP’) pleaded guilty to four charges of incest in relation to his stepdaughter (‘A’) and one charge of sexual penetration of a child under 16. The latter offence was committed against a girl (‘B’) who was the daughter of family friends of TP and his wife. On 8 February 2019 TP was sentenced as follows:

Charge on indictment

Offence

Maximum

Sentence

Cumulation

1. Incest[2] 25 years 6 years Base

2. Incest 25 years 6 years 9 months

3. Incest 25 years 6 years 9 months

4. Incest 25 years 6 years 9 months

5. Sexual penetration of a child under 16[3] 10 years 3 years 1 year

Total effective sentence: 9 years and 3 months’ imprisonment

Non-parole period: 6 years’ imprisonment

6AAA statement: 10 years’ imprisonment with a non-parole period of 7 years’ imprisonment

Other relevant orders:

·     TP was sentenced as a serious sexual offender in respect of charges 3 to 5.

·     Sex Offenders Registration Act 2004 – reporting for life.

·     464ZF forensic sample order.

[2]Pursuant to s 44(1) of the Crimes Act 1958.
[3]Pursuant to s 45(1) of the Crimes Act 1958.

The Director of Public Prosecutions has appealed against the sentence. The Director does not challenge the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading DPP v Polat (a pseudonym)

Details

AGLC: DPP v Polat (a pseudonym) [2020] VSCA 174
Case: [2020] VSCA 174
Decision Date: 25 June 2020

CaseChat Overview and Summary

The Director of Public Prosecutions appealed against the sentence imposed on Polat, who had been convicted of four counts of incest and one count of sexual penetration of a child under the age of 16. Polat was sentenced to six years imprisonment on each incest charge, with an additional nine months added to each sentence, resulting in an effective total sentence of 9 years and 3 months imprisonment. The non-parole period was set at 6 years. The Crown did not challenge the individual sentences but argued that the orders for cumulation resulted in an inadequate total effective sentence and non-parole period. Polat's offending was characterised by a breach of trust, abuse of parental authority, psychological manipulation, and persistence over a long period, with increased culpability with successive offences.

The court had to determine whether the orders for cumulation resulted in an inadequate total effective sentence and non-parole period. It considered that Polat's offending was objectively serious and involved a breach of trust, abuse of parental authority, and psychological manipulation. The court noted that Polat had been sentenced as a serious sexual offender on two incest charges, and the presumption of cumulation applied. However, the court found that the orders for cumulation did not adequately reflect the separate criminality of the individual offences, as they did not sufficiently account for the increased culpability with successive offences. The court concluded that the orders for cumulation resulted in an inadequate total effective sentence and non-parole period.

The appeal was allowed, and the orders for cumulation were set aside. Polat was re-sentenced to 12 years and 6 months' imprisonment, with a non-parole period of 9 years. The court considered that this sentence reflected the seriousness of Polat's offending, the breach of trust, abuse of parental authority, and psychological manipulation. The court also considered that the sentence adequately reflected the increased culpability with successive offences. The court noted that the re-sentence was within the maximum penalties prescribed by the relevant legislation. The final orders reflected the court's determination that the original sentence was inadequate and that the re-sentence was appropriate.

Orders