R v Tulloch

• Jurisdiction: Northern Territory
• Court: Court of Criminal Appeal
• Judge: Riley CJ,Southwood,Hiley JJ
• Judgment Date: 31 May 2013
• Date: 31 May 2013
• Docket Number: FILE NO: CA 9 of 2013 (21123971)

[2013] NTCCA 6

COURT OF CRIMINAL APPEAL OF THE NORTHERN TERRITORY

IN THE COURT OF CRIMINAL APPEAL OF THE NORTHERN TERRITORY OF AUSTRALIA AT DARWIN

Judgment of:

Riley CJ, Southwood and Hiley JJ

FILE NO: CA 9 of 2013 (21123971)

Between:

The Queen

Appellant

and

Kristy Louise Tulloch

Respondent

Clarkson v The Queen (2011) 32 VR 361 ; DPP (Vic) v Bright (2006) 163 A Crim R 538; DPP v Ellis (2005) 11 VR 287; Everett v R (1994) 181 CLR 295; R v GJ (2005) 196 FLR 233; R v Williams (1990) 53 SASR 253; R v Wilson (2011) 30 NTLR 51, applied

R v Hitanaya [2010] NTCCA 03 , considered

Criminal Code s 127(1)(a), s 131A(2) & (4), s 139A

CRIMINAL LAW — Crown appeal against sentence — manifestly inadequate — appeal allowed

CRIMINAL LAW — Sexual offences — maintaining a sexual relationship with a child — female offender and male victim

CRIMINAL LAW — Sentencing considerations — no difference between male and female offenders — female offenders sentenced in same manner as male offenders — not a distinguishing feature that offender female and victim male — consent not a mitigating factor — law exists to protect children from sexual relationships.

EX TEMPORE

REASONS FOR JUDGMENT

The Court:

Introduction

1 This is a Crown appeal against a sentence of two years and six months imprisonment, suspended after serving six months,1 imposed for the crime of maintaining a sexual relationship with a child under the age of 16 years. The crime was accompanied by the circumstance of aggravation that the respondent had sexual intercourse with the victim on numerous occasions.2

2 The sole ground of appeal is that in all the circumstances of the case the sentence imposed by the sentencing judge was manifestly inadequate. For the reasons that follow, in our opinion, the ground of appeal is made out and the respondent should be re-sentenced.

3 The case is appropriate for a Crown appeal.3 The appeal is about maintaining adequate standards of punishment, not only for the offence of maintaining a sexual relationship with a child who was under 16 years of age but for sexual offences committed by female adults against male children.

The facts 4

4 The respondent is a female aged 34 years and the victim is a male currently 17 years of age.

5 The respondent is a single parent who has two children one of whom is in middle school and the other is in primary school. She has received little assistance from the fathers of her children.

6 The respondent has experienced some adverse life circumstances. She was 19 years of age when her older half-brother committed suicide. Her half-sister drifted apart from the rest of the family after her brother's death.

7 The respondent has spent most of her adult life living with her parents as she found renting by herself, with her children, too expensive. This resultedin stress and tension with the family from time to time, particularly when other family members stayed in her parents' home. In late 2010 when the respondent was unemployed, there was so much tension in the house that her father asked her to leave the family home for one month.

8 In January 2011 the respondent obtained a Housing Trust home. On moving away from her parents' home the respondent became settled and things began to improve between her and her parents.

9 The respondent left school half way through year 11 when she was 16 years of age. After leaving school the respondent obtained two traineeships for approximately six months each. She then obtained work testing water in a laboratory at Jabiru. In 2007 she obtained work as an indigenous tutor and support worker. She then obtained employment in a child care centre.

10 The respondent has been in age appropriate relationships. Her first relationship occurred when she was 16 years of age. It was with a male of the same age. Her partner moved interstate to play football and she then formed a relationship with her ex-partner's cousin which resulted in pregnancy and the birth of her son who is now 14 years of age. Her relationship with her first partner has rekindled from time to time and this has resulted in the birth of her daughter. At the time of being sentenced the respondent was not in a relationship.

11 The offending occurred between 1 January 2010 and 31 March 2011 when the respondent was 29 to 30 years of age and the victim was 14 to 15 years of age.

12 At all material times the respondent was living with her children and her parents across the road from where the victim was living with his mother and older brother. The respondent and the victim had known each other for as long as the victim could remember. The victim came to know the respondent better when she worked at his school as a teacher's aide between July 2007 and June 2010.

13 In late 2009 the victim began going to the respondent's house to drop off Avon products that the respondent had purchased through his mother. Over time the respondent and the victim became friends. In the evenings they would sit together on the verandah of the respondent's parents' home5 sharing cigarettes and talking. Visits by the victim to the respondent's home became regular from the last school term in 2009 while the respondent was still a teacher's aide at the victim's school. After a few months of sitting with the respondent and sharing cigarettes on her verandah, the victim also started to smoke marijuana with the respondent. On most occasions that the victim went to the respondent's home he would go alone, but sometimes he was accompanied by male friends his own age.

14 During one evening at the beginning of 2010, the respondent and the victim were having a conversation about a girl when the respondent said to the victim, ‘You have a little dick’. He replied, ‘No I do not have a little dick.’ Then, after the respondent made some other comment, the victim took his penis out of his pants and the respondent said, ‘Well it looks small. I will have to suck it.’ Whereupon the respondent had fellatio with the victim in the carport while he lent against the respondent's father's car.

15 After the first incident, the victim continued to visit the respondent regularly on her verandah but he was no longer...