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DPP v Tullipan (a pseudonym)

DPP v Tullipan (a pseudonym)

Case [2021] VSCA 191 29 June 2021

Violent and Controlling Offending

Impact on Victim

Criminal Law

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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.

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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)

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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.

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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…

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 Tullipan (a pseudonym)

Details

AGLC: Director of Public Prosecutions v Tullipan (a pseudonym) [2021] VSCA 191
Case: [2021] VSCA 191
Decision Date: 29 June 2021

CaseChat Overview and Summary

The Director of Public Prosecutions brought an appeal against a sentence imposed on a man who had been found guilty of a course of conduct charge, indecent assault, and other related offences. The offending occurred over a period of six years, during which the victim was between 15 and 21 years old. The offences resulted in two pregnancies, and the court was required to determine whether the sentence was manifestly inadequate. The trial judge had imposed a sentence of 9 years and 6 months’ imprisonment, with a non-parole period of 6 years and 6 months.

The appeal raised several legal issues, including whether the sentence was manifestly inadequate, the severe impact of the offending on the victim, the breach of trust, the persistent and controlling nature of the offending, and the violent and degrading nature of the indecent assault. The court also considered the limited matters in mitigation and whether the residual discretion should be exercised. The appeal further noted that the prosecutor had failed to provide the judge with comparable cases. The appeal was allowed on the basis that the sentence was manifestly inadequate and that a substantially higher sentence was required.

The court emphasised the severity of the offending, which involved a gross breach of trust and had a severe impact on the victim. The offending was persistent, violent, and controlling, and the indecent assault was violent and degrading. The court considered that the total effective sentence imposed was manifestly inadequate and that a substantially higher sentence was required. The court also noted that the prosecutor had failed to provide the judge with comparable cases, which could have assisted in determining an appropriate sentence. The appeal was allowed, and the man was resentenced to 16 years’ imprisonment, with a non-parole period of 11 years and 6 months.

The final orders of the court included the resentencing of the man to 16 years’ imprisonment, with a non-parole period of 11 years and 6 months. The court emphasised the importance of ensuring that sentences reflect the seriousness of the offending and the impact on the victim. The court also noted the importance of providing the trial judge with comparable cases to assist in determining an appropriate sentence. The resentencing was intended to reflect the severity of the offending and to provide appropriate deterrence and denunciation.

Orders