Director of Public Prosecutions v Fedat and Jinks
[2015] VCC 1092
•18 August 2015
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-13-01926
CR-15-00459
CR-13-01925
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| KENAN FEDAT & SARAH JINKS |
---
JUDGE: | His Honour Judge Maidment | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | ||
DATE OF SENTENCE: | 18 August 2015 | |
CASE MAY BE CITED AS: | DPP v Fedat and Jinks | |
MEDIUM NEUTRAL CITATION: | [2015] VCC 1092 | |
REASONS FOR SENTENCE
---
Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:
---
APPEARANCES: | Counsel | Solicitors |
| For the Director | ||
| of Public Prosecutions | Mr J. McWilliams | |
| For Offender Fedat | Mr A. Jackson | |
| For Offender Jinks | Ms N. Kaddeche |
HIS HONOUR:
1 Kenan Fedat and Sarah Louise Jinks - you can stay seated for the time being - you have each pleaded guilty to an indictment, you Kenan Fedat and, you Sarah Louise Jinks, in Charge 1, to recklessly causing serious injury to the victim on 21 March 2013 and you, Ms Jinks, to dishonestly handling goods knowing of believing such to be stolen, in the form of two registration plates for a motor vehicle. Each of you have also admitted a number of prior convictions and court appearances.
2 The offence of causing serious injury recklessly carries a maximum term of imprisonment of 15 years and, likewise, the offence of handling stolen goods.
3 The prosecution tendered and relied upon a summary of facts for plea hearing which is Exhibit A. I am not going to read it again, it has been read in open court and I incorporate it in its entirety into these reasons for sentence.
4 Suffice to say that the incident arose on 21 March 2013 out of what seems to me to be an utterly ridiculous argument over a $25 debt, and escalated through telephone contact into an argument where threats were made and resulted in the two of you, along with others, attending the address where the offence took place in Ringwood. You were the driver, Ms Jinks, and you participated as a joint venturer, conscious of the likelihood that serious injury would be caused during the course of that joint criminal enterprise.
5 You, Fedat, were one of the assailants and it seems clear that the victim was struck by a wooden implement, probably a baseball bat, and caused serious injuries which are reflected in the photographs which were also tendered by the prosecution.
6 The sort of injuries that were inflicted were particularly serious involving a fractured skull, and there were fractured ribs and lacerations to various parts of the body, as well as bruising. It is the kind of assault which was, of course, out of all proportion to the nature of the argument but could have resulted in death. Fortunately it did not. But it is a serious example of recklessly causing serious injury.
7 You, Fedat, have prior convictions for offences of violence although not for almost eight years now, I think, and I need to take into account the fact of your criminal record in determining an appropriate sentence and in giving proper effect to the need to deter you from future offending. I note from the Community-correction Assessment report that you are assessed as being a high risk of reoffending, and I am not sure you would necessarily dissent from that if you were to go back into your drug taking habits.
8 The plea on your behalf was assisted greatly by an outline of submissions from Mr Jackson on your behalf in which he frankly conceded that the nature of the offending and, indeed, your record left the court with no alternative other than to impose an immediate custodial sentence, and that was a realistic approach. However, there were a number of important factors that are highlighted in the material that he provided.
9 You have pleaded guilty. It was not an early plea but it was a negotiated plea and the plea was to a lesser offence than that which was originally charged on the trial indictment, that being intentionally causing serious injury. The plea is entitled to attract a discount for the utilitarian benefit, the saving of the cost of a trial and the inconvenience of witnesses having to attend and so on and so forth.
10 However, the plea is also, I think, indicative of, or at least consistent with, remorse and I accept that now in the cold light of day, and after you have made some fairly considerable steps to rehabilitate yourself, you are remorseful for your conduct and, indeed, quite ashamed of the nature of the assault that you inflicted on your victim.
11 The submissions also relied upon a report from Dr Walton, psychiatrist, dated 30 July 2015, which is particularly informative; a report from Sarah Marrinan, psychologist, dated 3 July 2014; a letter from Dr David Ross of the Nunawading Clinic; a letter from Dr Bruce Ingram of the Junction Place Medical Centre East Hawthorn, and other documents which support the proposition that you have been a serious drug abuser for a very large number of years and that your adult life really has been taken over by your mental health issues and also your drug abuse issues.
12 Whilst largely you have offended in a way that is consistent with that pattern of drug abuse there have been some quite serious offences in your offending history, although in more recent times it seems clear that you have made considerable efforts to try and get on top of your drug problems. You have not been entirely successful, you have relapses, but you have made, it seems to me, quite considerable efforts. I think that although obviously one has to be guarded about your prospects for rehabilitation there are real signs that you have now, and at this stage of your life when you are now 44 years of age, you are, it seems, willing to give it a sustained effort.
13 These offences occurred well over two years ago now and the delay has enabled you to demonstrate a willingness to participate in rehabilitation programs. There are still some outstanding matters, which you have to negotiate but nevertheless I think you deserve some credit for your efforts.
14 You have had a difficult background; that is catalogued. You have not had much in the way of education and you have been out of work for a considerable period of time and now on a disability pension. You have a grown up family, if I can put it that way, but you also now have the added responsibility, potentially at any rate, of a 10/11 month old child with your co-offender.
15 Whilst there have, as I have been told, been issues that have required the intervention of the Department of Human Services, and perhaps your absence for the time being is going to be beneficial in many respects to the immediate future for your young child, there may be a brighter future for you in time once you have completed your sentence, and that would be an added incentive for you to really tackle your drug problems.
16 I am not going to dwell on your case any longer. As I have indicated, I regard the offending as serious to a point where I cannot do anything other than impose a significant term of imprisonment to mark the seriousness of the offending, to denounce your conduct, to punish you adequately, to deter you, and to deter others, whilst, of course, I am conscious of the need to promote your rehabilitation.
17 It is to that end that Mr Jackson devoted his plea to persuading me that it was possible to impose a term of imprisonment that would enable me also to attach a Community-correction Order which would give you some therapeutic assistance and supervision once you have completed your term of imprisonment, to assist you with your continued rehabilitation. I understand you have already indicated your willingness to participate in such an order, and I will proceed to sentence you in a moment on the basis that you are willing to consent to such an order.
18 As far as you are concerned, Ms Jinks, it is still a serious offence that you participated in, and I would probably have regarded myself bound in your case also to impose an immediate term of imprisonment. The fact that you were the driver does not excuse your conduct in any way, shape or form, because you were aware as to what the nature of the joint criminal venture was and you were a willing participant in it, apparently, knowing the risks that somebody would get seriously injured, as they ultimately were.
19 You have got a bad record. You have also got a very substantial history of drug abuse but, to your credit, is the fact that you have, it seems, overcome a serious heroin addiction. To achieve that without much, if any, professional help is testament to your character. You also have a 10 month old/11 month old child, and it seems to me that is a significant factor to be taken into account in determining the appropriate outcome.
20 I am still guarded, as indeed was the author of the Community-correction Assessment report, about your prospects of rehabilitation but I think they are higher than Mr Fedat and I think you need encouragement to continue with that process, and you have earned your opportunity to demonstrate your willingness to continue with your rehabilitation and to stay out of trouble, and to act as a responsible parent to your young child.
21 You have also indicated a willingness to participate in a Community-correction Order and I take it that you are still wanting to do so. You too, of course, are entitled to credit for, not just a plea but an early plea, and I take that into account and I will give you full credit for that.
22 I am now in a position to impose sentence upon you. Would stand Mr Fedat, please. Kenan Fedat, on Charge 1, of causing serious injury recklessly, I convict you and sentence you to imprisonment for a period of 20 months and I order that you be the subject of a Community-correction Order for a period of three years which will commence at the conclusion of your period of incarceration.
23 In addition to the core conditions, there will be a condition that you complete 250 hours of unpaid community work and you be subject to the supervision of the Department of Community Corrections for the period of three years in which the order is in force, and that you be the subject of treatment and rehabilitation, as directed, for drug abuse, mental health issues, and programs to reduce your risk of reoffending.
24 I am prepared to order that 150 hours of successfully completed hours of treatment and rehabilitation may be offset against the 250 hours of unpaid community work that you are required to complete. You will still have to do 100 hours of unpaid community work but, if you complete 150 hours, or any part of that, each hour that you complete satisfactorily of treatment and rehabilitation, will be offset that 250 hours.
25 I declare 12 days pre-sentence detention as to time reckoned as served on the sentence that I have imposed. But for your plea of guilty I would have sentenced you to a total effective sentence of three years with a non-parole period of two years. You may take a seat for the moment, thank you.
26 Sarah Jinks, would you stand please. For the offence of recklessly causing serious injury I convict you and, in the respect of the offence of handling stolen goods, I also convict you. For those offences I also impose a Community-Correction Order for a period of three years with a requirement.
27 In addition to the core conditions, that you complete 250 hours of unpaid community work, you be subject of the supervision of the Department of Corrections for that three year period, and you be the subject of a treatment and rehabilitation condition that requires you to participate in offender-specific programs directed at reducing your risk of reoffending.
28 In each of your cases, having heard the terms of the orders that I propose to make, are you willing to consent to be placed on a Community-correction Order in those terms?
29 OFFENDER JINKS: Yes.
30 HIS HONOUR: You, Mr Fedat?
31 OFFENDER FEDAT: I do not understand the sentence, Your Honour.
32 HIS HONOUR: I will get your counsel to come and explain it to you and then you can tell me whether you consent or not. Did you understand it all right, Ms Jinks?
33 OFFENDER JINKS: Yes.
34 HIS HONOUR: Are you willing to consent to being placed on a Community-correction Order with those conditions?
35 OFFENDER JINKS: Yes, I am.
36 HIS HONOUR: Mr Jackson, would you take a moment to go and have a word with your client and explain the sentence.
37 MS KADDECHE: Your Honour, I am just wondering whether Ms Jinks gets the same, in terms of the 150 hours, or not?
38 HIS HONOUR: She does not, no. There is no term of imprisonment in her case. It is a punitive element that I think balances out to some extent.
39 MR JACKSON: Thank you, Your Honour, I am instructed Mr Fedat is happy to consent to the order.
40 HIS HONOUR: Thank you.
41 HIS HONOUR: Ms Jinks, in your case, but for your plea of guilty, I would have sentenced you to two years' imprisonment with a non-parole period of 18 months.
42 I also make a disposal order in terms of the draft which I have been provided. The orders will now be drawn up and you will be asked to sign those orders, and I would ask that counsel ensure that your clients each know exactly what they are being asked to sign.
43 HIS HONOUR: Are there any other orders I need make, Mr McWilliams?
44 MR McWILLIAMS: Not from me, Your Honour, no, thank you.
45 HIS HONOUR: I am going to stand down for a few minutes, there are some computer issues which need to be overcome.
46 (Short adjournment.)
47 I think the orders are now ready to be signed. Before you sign the orders, Ms Jinks and Mr Fedat, it is important that you understand, and I am sure you do, that the orders are like a suspended sentence hanging over your head, and it is important that you comply with the terms of the order. If you do not then you're up for a breach of the order. It could be another three months' imprisonment for the breach.
48 If you commit a breach by committing further offences whilst the order is in place then you are up for obviously punishment for that offending, and also you are up for the possibility of being resentenced for this matter, or these matters. In that sense it is like a suspended sentence hanging over your head, and if you were to come back in breach, particularly if you commit another offence whilst the order is in place, then there would be a strong likelihood that you would have to do more time, Mr Fedat, and that you would have to do some time, Ms Jinks. So I hope you will not put the court in that position, and try if you can to make the most of the order.
49 If counsel would ensure that each of them understand what they are being asked to sign. Those orders are now signed by me and they are in force. Ms Jinks, you are free to leave the dock, and I will stand down briefly.
- - -
0
0
0