DPP v Tullipan (a pseudonym)
[2021] VSCA 191
•29 June 2021
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S EAPCR 2020 0191
| DIRECTOR OF PUBLIC PROSECUTIONS | Appellant |
| v | |
| FLYNN TULLIPAN (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 respondent’s name.
---
| JUDGES: | MAXWELL P, PRIEST and T FORREST JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 25 May 2021 |
| DATE OF JUDGMENT: | 29 June 2021 |
| MEDIUM NEUTRAL CITATION: | [2021] VSCA 191 |
| JUDGMENT APPEALED FROM: | [2020] VCC 1286 (Judge Carmody) |
---
CRIMINAL LAW – Appeal – Sentence – Crown appeal – Incest – Course of conduct charge – Indecent assault – Extremely serious offending – Multiple individual acts over 6 years – Victim aged between 15 and 21 – Offending resulted in two pregnancies – Total effective sentence 9 years and 6 months’ imprisonment, non-parole period 6 years and 6 months – Whether manifestly inadequate – Severe impact on victim – Gross breach of trust – Persistent, violent and controlling offending – Violent and degrading indecent assault – Limited matters in mitigation – Substantially higher sentences required – Whether residual discretion should be exercised – Prosecutor failed to provide judge with comparable cases – Appeal allowed – Resentenced to 16 years’ imprisonment, non-parole period 11 years and 6 months.
---
| APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Mr B Kissane QC with Ms J Wang | Ms A Hogan, Solicitor for Public Prosecutions |
| For the Respondent | Mr T Kassimatis QC with Mr C Wareham | Kaczmarek Grigor Lawyers |
MAXWELL P
PRIEST JA
T FORREST JA:
Summary
The respondent (‘FT’) pleaded guilty to two charges of sexual offending against his wife’s niece (‘S’). One was a charge of indecent assault. The other, far more serious, charge was a ‘course of conduct’ charge of incest.[2] As will appear, the offending covered by that charge spanned a period of more than 6 years, beginning when S was 15. Sexual penetration occurred weekly or fortnightly over that period and resulted in S becoming pregnant on two separate occasions.
[2]A ‘course of conduct charge’ is defined in cl 4A(1) of sch 1 to the Criminal Procedure Act 2009 as a ‘charge for a relevant offence that involves more than one incident of the offence’.
Under the provisions governing sentencing for course of conduct charges, the judge was obliged to impose ‘a sentence that reflects that totality of the offending that constitutes the course of conduct’, subject to the requirement that the sentence not exceed the maximum penalty of 25 years.[3] He sentenced FT to 9 years’ imprisonment on the incest charge. On the indecent assault charge, FT was sentenced to 2 years’ imprisonment. With cumulation of 6 months, the total effective sentence was 9 years and 6 months’ imprisonment, and a non-parole period of 6 years and 6 months was fixed.
[3]Sentencing Act 1991 s 5(2F)(a).
The Director of Public Prosecutions appeals against both of the sentences, on the ground that they are manifestly inadequate. The focus of the submissions, however, was on the sentence of 9 years for incest. The sentence did not, it was said, reflect the seriousness of the offending, which was ‘amongst the gravest examples of these crimes that a court can ever expect to see’.
Determining the appropriate sentence for a course of conduct charge is a task of particular difficulty, in our view. That is chiefly because it is so markedly different from the conventional sentencing exercise undertaken by a judge when sentencing for multiple offences.
Where separate offences are charged, the judge is required to fix an appropriate sentence for each individual offence and then, by means of orders for cumulation, to arrive at a total effective sentence which is commensurate with the total criminality. With a course of conduct charge, by contrast, the judge is typically confronted with a large, or very large, number of instances of the one offence and is expected to arrive at a single sentence which ‘reflects the totality of the offending’, while operating within the limit of the maximum penalty applicable to a single instance of the offence.
The sentence of 9 years’ imprisonment imposed here was, as counsel for FT pointed out, higher than the sentences imposed in a number of other cases involving course of conduct charges of incest.[4] For reasons set out below, however, we are persuaded that a substantially higher sentence was called for to reflect the sheer scale of the offending perpetrated against S, and the very significant aggravating factor that two pregnancies resulted.
[4]See, eg, Pickford (a pseudonym) v The Queen [2019] VSCA 195; Crawford (a pseudonym) v The Queen [2018] VSCA 113 (‘Crawford’); McCray (a pseudonym) v The Queen [2017] VSCA 340; Harmon (a pseudonym) v The Queen [2017] VSCA 169; DPP v Aparo [2016] VCC 803.
As to the sentence for indecent assault, the conduct giving rise to that charge made it a very serious example of the offence. As will appear, FT attacked S violently, ignoring her resistance. In our view, the sentence of 2 years’ imprisonment did not reflect the objective seriousness of the offence or FT’s moral culpability, and was outside the range reasonably open.
We will therefore allow the appeal and set aside both sentences. FT will be sentenced to 15 years’ imprisonment on the incest charge and to 3 years’ imprisonment on the indecent assault charge, one year of which will be cumulated on the base sentence. The total effective sentence will therefore be 16 years’ imprisonment, and we fix a non-parole period of 11 years and 6 months.
Circumstances of the offending
S was born in 1991. She is the niece of FT’s wife. S had no contact with her biological parents and was raised by her grandmother in Samoa.
In 2005, S moved to New Zealand with her grandmother. There, she was adopted by FT and his wife and commenced living with them. Shortly after S moved into FT’s house, he began to physically and sexually assault her. FT forbade S from contacting her family in Samoa. She was not allowed to have her bedroom door closed and was made to be scared of FT.
In this period, FT’s sexual offending towards S escalated from him being naked in front of her when no one else was home, to touching S’s breasts and, ultimately, to FT regularly penetrating S’s vagina. In 2006, S became pregnant to FT. He took her to an abortion clinic, but she was unable to have an abortion as by then she was 6 months pregnant. Afterwards, and on more than one occasion, FT assaulted S in an attempt to induce her to miscarry.
Later in 2006, FT moved his family to Australia. At first, FT, his wife and S resided at a friend’s house, where FT continued to sexually abuse S. The events to this point provide context to FT’s subsequent charged conduct.
As noted earlier, the offending the subject of the incest charge comprised a course of conduct over 6 years. The frequency of sexual intercourse ranged from once every few days to weekly or fortnightly. The Director submitted in this Court that FT must have engaged in sexual intercourse with S ‘more than 100 [times] and very probably many hundreds of times’.
On the plea, the prosecution directed the Court to four specific incidents that occurred within the 6 year course of offending. The first incident occurred at night in October 2006, approximately a week after the family arrived in Australia. At the time, S was 15 years old and heavily pregnant.
S was asleep in a separate bed in the same room as FT. FT moved from his bed to hers and lay on top of her. He lifted up her clothes, put his hands over her mouth and then penetrated her vagina. FT did not wear a condom and S was sobbing in pain as FT penetrated her.
In November 2006, the family moved to a different house, to live with other friends of FT’s. Soon after moving into this house, FT commenced going into S’s room and having sex with her. He would often pull her hair and strangle her while he did this.
The second specific incident occurred around this time. FT entered S’s room while she was kneeling and hunched over her bed due to muscle pain from her pregnancy. FT grabbed S from behind, lifted her skirt, and pulled down her underwear. She froze as he did this. FT then knelt behind S and penetrated her vagina with his penis. S was in extreme pain due to muscle contractions from her pregnancy. When FT finished, he got up and left.
In December 2006, when S was 15, she gave birth to the baby fathered by FT, a daughter. S’s aunt refused to allow her to speak with social workers alone. FT told S to tell social workers that her cousin in New Zealand was the father of the child. The child was subsequently raised as S’s ‘sister’.
In the period following the birth, FT did not sexually offend against S but he continued to be controlling of her, particularly around boys. This, as well as the fact that FT occupied a high position within the family’s church, made S feel that she could not tell anyone about what had happened to her, and that no one would believe her if she did.
In 2007, when S was 15 or 16 years old, she recommenced her schooling. FT continued to sexually assault her regularly, whenever he found an opportunity.
In 2009, S was pulled out of school and the family moved again. In July 2009, after missing her period and experiencing morning sickness, S underwent an obstetric ultrasound which revealed she was pregnant once again.
Later that month, FT took S to hospital to have an abortion. He dropped her off and instructed her to lie to hospital staff that the father of the baby was her 16-year-old boyfriend who had run away. S was then referred to the Royal Women’s Hospital to undergo the procedure, and was told that her pregnancy was close to being too far advanced for an abortion to be performed. The sexual intercourse that resulted in this pregnancy represents the third specific incident of incest.
When FT and S returned home, her aunt asked where they had been. FT said that he had received a call from his cousin, who had found S on the road with a boyfriend. On the basis of that false information, S’s aunt beat her and called her a slut. After the abortion, S felt depressed and guilty and FT refrained from engaging in sexual activity with her for approximately one month.
By this time, the family had moved again. At this house, FT would pray at night. He would regularly enter S’s room and have sex with her, before leaving and continuing to pray. S told him that she did not want to be his ‘sex slave’. FT told her that he wanted to stop but could not because he was obsessed with her, and did not want any other man to touch her.
In December 2012, when S was 21, she again became pregnant to FT. When he became aware of the pregnancy, he drove S to an abortion clinic but did not provide her with any money for the procedure. The clinic refused to perform an abortion as S did not have enough money. She then begged for money on the street until she obtained sufficient funds to pay for the procedure. FT collected S from the clinic later that day. The sexual intercourse that resulted in this pregnancy comprises the fourth specific incident of incest.
The conduct the subject of the indecent assault charge occurred late one night in February 2013, when S was 21 years old. She had just returned to her room after a shower when FT entered wearing only a wrap around his lower half. FT wanted to have sex with S, but she pushed him away and tried to tell him she had her period to deter him. FT pushed her onto the bed and tried to pull her legs apart. He had removed his clothes by this point and began trying to lick her vagina. FT then touched her vagina to check if she was bleeding, then started licking and biting her vagina. FT told S she was lying about having her period.
S told him to stop and that her aunt was awake. She elbowed the bed head in an attempt to get her aunt’s attention in the other room. Hearing his wife walk down the hallway, FT hid in the wardrobe. When S’s aunt came into the room, she discovered him naked in the wardrobe and became enraged. FT put his clothes back on, went to the sitting room, and behaved as if nothing had happened.
S’s aunt then called her into the sitting room. She was holding a knife and pointed it towards S, saying ‘Someone’s going to die tonight.’ FT tried to convince his wife that nothing had happened and that it was all in her head. As S left the sitting room and went outside, FT followed her, held her up against the wall of the house by her throat and said, ‘If you say anything, you will see what I’m going to do to you.’ S was scared and rushed back inside as soon as FT released her.
S continued to live with her adoptive parents. In 2013, she met her boyfriend (later her husband). FT told S that he would do anything to stop the relationship. S then agreed to stop seeing her boyfriend if FT stopped having sex with her. FT agreed to this on the condition that she have his name tattooed on her back, which she did.
S in fact continued to see her boyfriend. When FT became aware of this, S was sent back to Samoa on a one-way plane ticket. She returned to Melbourne once she was able to pay for a flight home. Upon her return to Melbourne, S lived with her boyfriend, whom she married in February 2014. They had their first child together in June 2014.
S disclosed FT’s offending to Child Protection in May 2017. While a mandatory report was made to police, at that time S did not wish to make a statement. In March 2018, Child Protection workers interviewed FT, who made qualified admissions in respect of his offending. FT was subsequently arrested and interviewed by police in July 2018.
Assessing offence gravity
In a helpful outline of sentencing submissions provided on the plea, the prosecutor drew attention to the following statement of this Court in Director of Public Prosecutions v Walsh (‘Walsh’):
Incest involving a child is an appalling crime. It involves a breach of trust of the most fundamental kind, and an inexplicable abdication of parental responsibility. Just as seriously, it involves a cynical exploitation by the parent of the opportunity for sexual contact which being in that position of trust presents.
Incest involving a child is, moreover, a crime of violence. As the Sentencing Advisory Council has pointed out, sexual penetration of a child is inherently violent, whether or not it is accompanied by additional non-sexual violence. Often, as in the present case, the act of sexual penetration causes the child actual physical pain.[5]
[5][2018] VSCA 172, [1]–[2] (Maxwell P and McLeish JA) (citations omitted).
In his reasons, the sentencing judge said:
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.
The 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.[6]
[6]DPP v Tullipan (a pseudonym) [2020] VCC 1286, [58]–[59] (‘Reasons’).
The judge had earlier summarised S’s description of how the offending had affected 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.
She 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.[7]
[7]Ibid [43]–[44].
In careful reasons his Honour fully and accurately described the gravity of the incest offending. The Chief Crown Prosecutor, appearing for the Director, accepted that this was so but submitted that the sentence of 9 years’ imprisonment was simply not commensurate with the objective gravity of the offending. The submission emphasised both the duration and the frequency of the acts of sexual penetration and the significant aggravating features, namely that:
·FT persisted in offending without using a condom, despite there having been multiple pregnancies;
·he caused S great pain on more than one occasion;
·he used violence, or threats of violence, against her; and
·he was very controlling of her, for example, by refusing to allow her to have a boyfriend when she was 22, by sending her back to Samoa and by insisting that she have his name tattooed on her.
As to the number of occasions involved, it was common ground that both the specified and unspecified incidents had to be taken into account in considering ‘the totality of the offending’. Although no accurate estimate was possible in the circumstances, it seems clear that there must have been at least 150 acts of sexual penetration, based on the lowest frequency of ‘fortnightly’.
As to the indecent assault, the Director’s submission was as follows:
The respondent’s conduct constituted about as serious an example of the crime of indecent assault as can be imagined. The offending was violent and persisted despite the objections of and resistance by the victim. Further, the sexual contact itself was highly intrusive and degrading. In addition, it was further aggravated by a number of factors:
(a) the family relationship that existed between the respondent and the victim;
(b) the background of years of abuse by the respondent;
(c) this offence followed very shortly after the victim had had an abortion because of previous abuse by the respondent;
(d) it took place in the victim’s bedroom where she was entitled to safety and privacy; and
(e) the respondent fell to be sentenced on this charge as a serious sexual offender.
Matters in mitigation
FT relied on a number of factors in mitigation. First, he had pleaded guilty at an early stage. The Director conceded that this was a significant matter in mitigation, but submitted that the other matters relied on were ‘not of much weight’.
As to remorse, the judge found that the entry of the guilty plea was some evidence of remorse but, at the same time, observed that there was ‘no clear evidence’ that FT accepted the wrongfulness of the offending beyond the plea of guilty.[8]
[8]Ibid [70].
His Honour noted that FT had no criminal history and that this was a good sign for his rehabilitation. On the other hand, his Honour said, the offending continued over an extended period of 6 years. His Honour concluded that FT was ‘a reasonable prospect for rehabilitation’.[9]
[9]Ibid [71].
The two other factors were the impact of COVID-19 restrictions, and the probability that FT would be deported on the completion of the sentence. As to the first, the judge noted that there would be no opportunity for contact visits, and only limited opportunity for him to participate in courses. Those circumstances, his Honour concluded, would mean that FT’s time in custody would be more onerous than otherwise would be the case. Moreover, his Honour said, FT would be suffering more anxiety about the COVID-19 risk to himself.
His Honour said:
I 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 offenders’ families through no fault of their own that result is commonly the case.[10]
[10]Ibid [69].
As to deportation, his Honour said:
The 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; [and]
(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.[11]
[11]Ibid [75].
Consideration
Reference was made earlier to the prosecutor’s outline of submissions, provided to the judge on the plea. The submission provided a clear and succinct summary of the relevant features of the offending, and of the offender, and drew attention to the applicable sentencing principles. What was notably absent, however, was any reference to comparable cases which might assist the judge to ascertain the applicable sentencing range, either because they were relevantly similar or because they were instructively different.[12]
[12]DPP v Frewstal (2015) 47 VR 660, 671 [49]; [2015] VSCA 266 (Maxwell P) (‘Frewstal’).
As the written case for FT pointed out, the only sentencing information provided was a reference to an August 2018 Sentencing Snapshot, published by the Sentencing Advisory Council, entitled ‘Sentencing Trends for Incest in the Higher Courts of Victoria 2012–13 to 2016–17’. The prosecutor’s submission was as follows:
It is clear from the Sentencing Snapshot for Incest that offenders are overwhelmingly sentenced to a considerable term of imprisonment with the declaration of a non-parole period.
We referred earlier to the particular difficulty of sentencing for a course of conduct charge. Moreover, since such charges are laid only infrequently, most judges will have little familiarity with them. That being so, a judge called on to impose sentence for a course of conduct charge should be given maximum assistance by way of reference to relevant sentencing materials.
As mentioned earlier, there is a series of decisions of this Court dealing with sentences for course of conduct charges of incest which would, undoubtedly, have assisted his Honour in determining the sentencing range. For the most part, the offending the subject of those decisions was materially less serious, either because of shorter duration or less frequent/persistent offending or because the offending lacked the features of aggravation present here.
We refer, for example, to Crawford. In that case, the offender pleaded guilty to a course of conduct incest charge and was sentenced to 8 years’ imprisonment on that charge. The offending occurred over a two-year period, on a regular basis, and involved some ‘psychological manipulation’. In rejecting a complaint of manifest excess, the Court said that the sentence of 8 years could ‘only be described as moderate’.[13] Further, the Court said:
The absence of aggravating features such as pregnancy does not assist the applicant. If pregnancy or similar aggravating features had been present, the judge would have been justified in imposing a sentence substantially higher than 8 years’ imprisonment.[14]
[13]Ibid [76] (Maxwell P and Kyrou JA).
[14]Ibid [77].
Another source of assistance, in our view, would have been cases involving sustained incest offending where the conduct was charged as individual offences rather than as a single course of conduct offence. We refer, for example, to:
·PDI v The Queen,[15] which involved persistent abuse over 5 years, comprising 37 separate acts of penetration. The total effective sentence there was 15 years’ imprisonment, with a non-parole period of 10 and a half years; and
·Reid (a pseudonym) v The Queen,[16] where multiple sexual offences were committed over 4 and a half years. The total effective sentence in that case was 14 years’ imprisonment, and a non-parole period of 10 years was fixed.[17]
[15][2011] VSCA 446.
[16](2014) 42 VR 295; [2014] VSCA 145.
[17]It should be noted that both those decisions predated the change in sentencing for incest which followed this Court’s decision in DPP v Dalgliesh (a pseudonym) [No 1] [2016] VSCA 148.
A sentence for a single instance of incest cannot, of course, be usefully compared to a sentence for a course of conduct charge. But, precisely because the two are different, the former can provide some guidance by way of contrast regarding the available range for the latter. The example the Director gave was the sentence of 7 years and 6 months’ imprisonment imposed in Director of Public Prosecutions v Dalgliesh [No 2],[18] for a ‘single incident’ count of incest which resulted in pregnancy. As the Director correctly submitted, offending like the present, involving multiple acts of incest over a long period, should be viewed as being considerably more serious than a single act of incest, and that difference in seriousness should be reflected in appropriate sentencing differentials.
[18][2017] VSCA 360.
Reference was also made for this purpose to Director of Public Prosecutions v Polat,[19] which concerned four ‘single incident’ charges of incest.[20] On a Director’s appeal which challenged only the orders for cumulation, this Court increased the total effective sentence to 12 years and 6 months’ imprisonment, with a non-parole period of 9 years.
[19][2020] VSCA 174.
[20]It was accepted that there had been many other uncharged acts of incest but they were relevant only as ‘context’.
In the light of the decisions to which we have referred, we are satisfied that the sentence of 9 years’ imprisonment on the course of conduct charge of incest was outside the range reasonably open to the judge in the circumstances of this case. For the reasons which the judge himself gave, this was extremely serious offending. While worse cases can always be imagined, this was — as the Director submitted — amongst the gravest examples of this abhorrent crime. A substantially higher sentence was called for.
The submission for FT was that, if we concluded that the sentence was manifestly inadequate, we should nevertheless exercise the residual discretion — which is available on a Director’s appeal — to dismiss the appeal. The basis of the submission was what was said to be the failure of the prosecutor ‘to do what was reasonably required to assist the sentencing judge to avoid the error’,[21] that is, to provide assistance by way of comparable cases.
[21]Citing R v Tait (1979) 24 ALR 473, 477 (Brennan, Deane and Gallop JJ); Frewstal (2015) 47 VR 660, 675 [71]–[72]; [2015] VSCA 266 (Maxwell P).
We reject that submission. We have made clear our view that the judge should have been given much greater assistance on this difficult sentencing question. But this was not a case of the Crown giving a judge incorrect or misleading information, either about the facts or the law. That being so, dismissal of the appeal would be a wholly disproportionate sanction.[22] That is especially so given the public importance of this Court setting appropriate sentencing standards for this offence.
[22]Cf DPP v Holder (2014) 41 VR 467; [2014] VSCA 61.
We turn finally to the indecent assault charge. In our view, the objective gravity of this offence was accurately captured in the Director’s submission, which we set out earlier. Counsel for FT did not take issue with that submission.
It follows that this had to be viewed as a very serious example of the offence. And, given the nature and circumstances of FT’s attack on S, his moral culpability was very high. Put simply, he was prepared to use whatever force was necessary to overcome S’s resistance, in pursuit of his own sexual gratification. The sentence of 2 years’ imprisonment did not, in our view, reflect the objective gravity of the offence or FT’s moral culpability.
For these reasons, the appeal will be allowed and FT resentenced as set out above.
---
24
10
0