DPP v Tan

1. The facts upon which the jury found their verdict are as follows:
2. The victim of your offending was your biological daughter Ruby[2]; born in 1994. Your offending against her occurred in the period between January 1999 and 31 December 2005 when she was between the ages of five and 11 years.
3. Ruby described that you initiated sexualised contact with her from when she was about five or six years of age. You clothed the contact as either a 'game', or as you wanting a 'hug'. In the uncharged acts that she described, you attempted penetrating her vagina with your penis and with your finger; on the first occasion you continued by rubbing your penis over her vulva, and then by rubbing her vulva in a circular motion with your fingers on another occasion.
4. Ruby described an act when she was seven or eight years old during summer where you penetrated her vagina with your penis. She linked the incident to a memory of having been wearing her school uniform. The incident commenced in your bedroom when you instructed her to take off her clothes 'because it was hot'. You took a pillow and instructed her to put it between her legs and move her hips. You repositioned the pillow and told her 'it would make her feel good and it would not hurt as much if she did this first' (this is an instance of Charge 2, indecent act with a child under the age of 16 years). After that, Ruby recalls that you successfully penetrated her vagina with your penis (the first instance of Charge 3, incest).
5. Ruby also described other instances of incest; once where after you penetrated her, she said something to you, and you slapped her across the face. On another occasion she remembers you came home one weekend morning from working your nightshift job when she was reading in bed. You asked for a 'hug'. She put off your request until you offered her five dollars. Once you paid her, you committed an act of penetration.
6. Ruby stated that the amounts of money offered and paid increased over time as she grew older and more reticent to accede to your desires.
7. Ruby described an instance when she was 10 or 11 when you were both in the shower together naked. You were washing each other and you instructed her to wash your penis. She held your penis. It was erect and you ejaculated (that is an instance of Charge 1, indecent act with a child under the age of 16).
8. The sexual activity did not continue after she was aged about 11 years old.
9. Ruby stated that the acts of her masturbating your penis occurred about two to three times a week 'for years'. She stated that the occasions where you instructed her to masturbate were less frequent when she was younger, but increased from the age of seven to eight to the same frequency as when you were about to penetrate her. The acts of incest; that is, where you penetrated her vagina with your penis, occurred about two to three times a week from the time she was seven or eight years of age until she was 11.

1. I turn to consider the objective gravity of your offending and an assessment of your moral culpability.
2. The first measure of the objective seriousness of your offending is to be found in the maximum penalty of 25 years prescribed by Parliament for the charge of incest. The maximum penalty of 10 years prescribed by Parliament for the offence of indecent act with a child under 16 is obviously less, but still constitutes serious offending.
3. Several factors inform the seriousness of your offending:

a) the gross breach of trust and abandonment of your responsibility as a parent to protect your daughter and keep her safe from harm; > > b) the exploitation of your power as a parent over a young child; > > c) the significant gap between you and your victim's age; > > d) the offending was systematic, alarmingly frequent and spanning a number of years; > > e) the young age at which you commenced sexual contact with your daughter is utterly repugnant; > > f) the submission that your sexual offending against your daughter stopped before she reached puberty, and therefore averted the risk of pregnancy may be a small mercy, but is hardly mitigating in the wider circumstances of your offending.

4. You have no remorse. Whilst you must not be punished for running a trial or maintaining your innocence, there are, however, no utilitarian benefits to apply in mitigation.
5. In relation to the course of conduct charges, the law provides that I must impose 'a sentence that reflects the totality of the offending that constitutes the course of conduct', subject to the requirement that the sentence not exceed the maximum penalty for the offence of 25 years, 10 years as it is for indecent act. The legal commentary on course of conduct charges in the Judicial College Manual notes that:

As a result, sentences for course of conduct charges are likely to be higher than for equivalent conduct prosecuted as a single incident on a 'first occasion' basis.

1. Even on a conservative estimate, and taking into account the fact that the incest conduct did not commence until Ruby was seven or eight, and the whole of her evidence as to the frequency of all acts, your offending over the three charges occurred on dozens, perhaps hundreds of occasions.
2. You are to be sentenced as a serious sexual offender on Charge 3. Assuming that sentences of imprisonment are imposed on Charges 1 and 2 (and I consider that imprisonment is the only sentencing option available), the law presumes that the sentence on Charge 3 will be served cumulatively.[3] Furthermore, when you are sentenced as a serious sexual offender, the law requires that the protection of the community becomes the principal sentencing objective.[4] The Crown does not seek the imposition of a disproportionate sentence, and I do not intend to impose a disproportionate sentence.
3. The criminal law prohibits sexual offending, and specifically sexual offending against children, with the objective of upholding the fundamental right of every person to make decisions about their own sexual behaviour and to choose not to engage in sexual activity. There is, and can be, no question or issue about consent. The prohibition and the maximum penalty for its contravention is intended to deter others who may consider engaging in a sexual activity with a child.
4. The absolute prohibition on sexual activity with a child under the age of 16 presumes that sexual activity which occurs before a child reaches an age at which they can give meaningful consent causes harm which is long lasting‑ and serious and manifests itself in both physical and psychological forms. Therefore, the harm to your victim is presumed.
5. Furthermore, incest is abhorred by the community. Incest is a repugnant offence that strikes at the core of the family relationship and involves a fundamental breach of trust. This offending stands in total conflict with your responsibilities as a parent to protect and nurture your daughter. Moreover, as the Court of Appeal noted in DPP v Walsh, not only does incest involve the cynical exploitation of sexual contact within the position of trust, 'incest involving a child is... a crime of violence. The sexual penetration of a child is inherently violent, whether or not it is accompanied by additional nonsexual violence.'[5] As noted in Walsh, and as is the case here, the sexual contact is often accompanied by physical pain to the child.
6. I received a victim impact statement from Ruby which she read aloud to the Court. It is necessary to refer to it in some detail in order to convey the true extent of damage inflicted and of the impact still felt by Ruby today.
7. It is no overstatement to say that your offending has wreaked havoc on Ruby's life. She spoke eloquently of her lifelong mental health challenges resulting in a diagnosis of complex PTSD, insomnia and pain which has now been diagnosed as fibromyalgia. Ruby has endured multiple hospital admissions and years of a compromised quality of life and social life as a result of these conditions. Moreover, Ruby justifiably feels deeply your betrayal as a parent and the complete breakdown of the family network as a result of your actions.
8. I am not required to form any conclusion as to the reasons for the breakdown in her relationship with her mother. It is sufficient to say that neither of you have played a parenting role in her life for many years, and there has been no contact with her for about six years.
9. A wise Judge, Vincent J, once observed that the rehabilitation of the victim of childhood sexual offending was likely harder to achieve than the rehabilitation of the offender. I fear that is the case here.
10. Your moral culpability for your offending is high. Although you decided to stop offending, and for the fact that about 19 years have passed since your last offence, the passage of time of itself does not mitigate the seriousness of what you did.
11. Your offending must be met by principles of general deterrence, denunciation, and, upon the declaration of the third charge that you are a serious sexual offender, protection of the community.
12. Your offending can only be met by condign punishment. Put simply, this means you will be sentenced to a substantial period of imprisonment.

1. You are now 70 years of age.
2. You were born and raised in Malaysia and describe a happy family life. Your parents both passed away but you have two siblings still living in Malaysia. You completed high school and moved to London to work in the hotel industry. After a period away you moved to front desk reservations and nightshift. You returned from London to Malaysia where you met your wife, and took up her Christian faith. You married in 1982.
3. After a further time working in London, and after the birth of your son, you migrated with your family to Australia in 1988. You worked in a hotel front desk position and moved to a different front desk position in a building in the Melbourne CBD in 1993. You worked the night shift front desk position from 1993 until October 2007 when you lost your job due to a change in management.
4. Your daughter Ruby was born in 1994.
5. After a period of unemployment, you worked from 2011 until your retirement in 2021 in patient support services at a hospital.
6. You have some ill health. you are medicated for heart disease; you have had surgery on one eye and are awaiting surgery on your other eye for a membrane tissue growth onto the cornea; and you suffer from back pain and shortness of breath.
7. Due to the nature of your working week, you never really developed a social network outside your family, and you and your wife are most dependent on each other. You are most concerned for your wife's health as she is undergoing investigations for bowel cancer. I accept that your time in custody away from her weighs on you heavily.

1. Mr Malik submitted that the following factors should operate to mitigate your sentence:

a) you have no prior convictions and you are otherwise of good character; > > b) your health issues and those of your wife must be taken into account; > > c) your advanced age is a factor of which I should take account; > > d) notwithstanding the inevitable declaration that you are a serious sexual offender, the principle of totality still applies to the sentencing consideration in this case; > > e) the measures of concurrency must be announced to ensure a crushing sentence is not imposed; > > f) Delay in the finalisation of the matter - you were first spoken to by police in October 2022.

2. I note that there has been some delay, which principally relates to a number of complicating pre-trial issues. These matters however, added months, not years, to the finalisation of this matter. Nevertheless, the delay added to the stress you experienced and added to the length of time that has passed since you last offended. There must be at least some recognition of those factors.
3. Mr D'Arcy, for the prosecution, submitted that the only appropriate sentence is a term of imprisonment with a head sentence and non-parole period.
4. I was referred by the Crown to the case of Hudnall[6]
5. I have also had regard to the principles enunciated in the case of Tullipan,[7] which is a case of considerable assistance in formulating sentences in relation to charges of incest and course of conduct.

1. The complexity of sentencing a course of conduct charge of incest was, as I say, recently recognised and discussed in Tullipan. I have read and had regard to the principles set out in that case. I have also had regard to the sentence imposed in that case, noting that it was considered one of the gravest examples of an incest course of conduct charge.
2. Tullipan was resentenced to 15 years' imprisonment on a charge of incest course of conduct committed over a six-year period. Tullipan had pleaded guilty to a charge of course of conduct incest in relation to his adopted daughter who he brought over from Samoa to Australia. The sentencing judge sentenced him to nine years on the charge. On appeal, the Crown estimated he had committed about 150 acts of penis/vagina penetration without a condom with his adopted daughter from the age of 15 to 21 years. She became pregnant twice, and gave birth to his child. The court was satisfied that Tullipan manipulated his daughter. Further, Tullipan engaged in several very painful acts of penetration when his daughter was heavily pregnant.
3. Of course, several of the aggravating features in Tullipan are not present in your offending. However, Tullipan pleaded guilty, which is a mitigating feature, whilst you did not.
4. Hudnall was a plea of guilty to a rolled-up charge of incest committed by the offender on his daughter when she was aged between seven and 13 years. The rolled-up charge related to eight instances of incest, accompanied by a myriad of uncharged acts. The offender suffered from bipolar disorder, anxiety and complex PTSD. He was 54 years old at the time of sentencing. Her Honour Judge Hampel sentenced the offender to 16 years with 12 years to serve before being eligible for parole.
5. I recognise that I must not be unduly influenced by the sentences imposed in other cases. I must formulate sentences on the charges here, according to my assessment of the objective gravity of the offending, taking into account the relevant principles in sentencing objectives and having regard to the matters personal to you.
6. As you are now aged 70, I recognise that every year of the sentence I impose potentially represents a considerable portion of your remaining life. This is a weighty consideration in the sentencing process. I have read the cases of Iles, Cumberbatch, and RLP[8]. The principles enunciated in RLP are relevant to this consideration:
   1. The age and health of an offender are relevant to the exercise of the sentencing discretion;
   2. Old age or ill health are not determinative of the quantum of the sentence;
   3. Depending on the circumstances, it may be appropriate to impose a minimum term which will have the effect that the offender may well spend the whole of his remaining life in custody;
   4. It is a weighty consideration that the offender is likely to spend the whole or a very substantial portion of the remainder of their life in custody;
   5. Other sentencing considerations may be required to surrender some ground to the need to exercise compassion to take into account the real prospect that the offender may not live to be released and that the offender's ill health will make his or her period of incarceration particularly onerous;
   6. Just punishment, proportionality and general and specific deterrence remain primary sentencing considerations in the sentencing disposition notwithstanding the age and ill health of the offender;
   7. Old age and ill health do not justify the imposition of an unacceptably inappropriate sentence.
7. I am satisfied that you have good prospects for rehabilitation. I conclude that the reality is that you will not have the opportunity to commit further sexual offences against a child in the future. Your offending against your child was opportunistic. You offended against only one child, and you have not offended again in the last 19 years. Moreover, it will likely be a requirement for parole that you complete a sexual offender treatment program whilst in custody. With your wife's support and the supervision of parole and the Sex Offender Registration Act requirements, together with your age on release, I consider the chances of you reoffending are pretty much extinguished. Although that speaks to the practical circumstances, I recognise that you still deny the offending, and you have demonstrated no insight or remorse.
8. The sentencing consideration in this case is complex, as several competing principles must each be considered and applied:
   • Totality is important, for even considering the extent of your offending and the gravity of it, I must not impose a sentence that is crushing;
9. General deterrence remains a dominant sentencing consideration. Specific deterrence has a far lesser role to play in your case, if any part at all;
   • Protection of the community becomes the dominant sentencing consideration once you are declared a serious sexual offender;
   • Then, the serious sex offender provisions presume cumulation of sentences;
   • Your age is, as I have said, a consideration, but it cannot lead to the imposition of an inappropriate sentence or sentences; and finally
   • The course of conduct charges require the considerations I have already outlined.
10. It is simply not possible to resolve the tension between imposing sentences of appropriate length to reflect the criminality of your offending and what would ordinarily be appropriate orders of cumulation. In the end, there must be a compromise on both, with a view to achieving the appropriate overall total effective sentence and non-parole period.

1. Accordingly, the orders I make are as follows:
2. On the charge of indecent act with a child under 16 years, I impose a sentence on Charge 1 of five years.
3. On the charge of indecent act with a child under the age of 16 years, Charge 2, I impose a sentence of four years.
4. On Charge 3 of incest, you are declared a serious sexual offender and I impose a period of 13 years. Thirteen years is the base sentence.
5. To that I add 18 months on Charge 1, which is cumulated on the base sentence and other sentences, and I cumulate a period of six months on Charge 2 which is cumulated on the base sentence and all other sentences. The total effective sentence is a sentence of 15 years.
6. I order you serve a non-parole period of nine years before you are eligible for parole.
7. I declare, as I say, that you are a serious sexual offender on your conviction on Charge 3, and I order that to be entered into the records of the court.
8. I declare the period of nine days pre-sentence detention excluding today be reckoned as already served.
9. The Sex Offender Registration Act mandatory period is a period for life. There are a number of onerous conditions with which you must comply upon your release from custody. Mr Malik or your instructing solicitors will explain those to you and you will be sent a form which you are required to sign, acknowledging that you have received the conditions of the SORA.
10. Now starting with you, Mr Malik, are there any issues that you need to raise?
11. MR MALIK: No thank you, Your Honour.

1. HIS HONOUR: Ms Vasiliou, anything from your perspective?
2. MS VASILIOU: No, nothing, thank you, Your Honour.

[3] s6E Sentencing Act 1991 (Vic).

[4] s6D(A).

[5] DPP v Walsh (a pseudonym) [2018] VSCA 172 [1]

[6] DPP v Hudnall [2022] VCC 2079.

[7] DPP v Tullipan (a pseudonym) [2021] VSCA 191.

[8] R v RLP [2009] VSCA 271; 213 A Crim R 461