Director of Public Prosecutions v Fedele
[2018] VCC 1215
•8 August 2018
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTIONCR-18-00612
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| LACHLAN FEDELE |
---
| JUDGE: | HIS HONOUR JUDGE LACAVA |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | |
| DATE OF SENTENCE: | 8 August 2018 |
| CASE MAY BE CITED AS: | DPP v Fedele |
| MEDIUM NEUTRAL CITATION: | [2018] VCC 1215 |
REASONS FOR SENTENCE
---Subject: Sexual penetration with a child under 16 years. Breach of community Corrections Order.
Sentence: 2 years imprisonment with a non-parole period of 15 months---
APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr D. Glynn | Office of Public Prosecutions |
| For the Accused | Mr A. Maloney |
HIS HONOUR:
1Lachlan Fedele, you come before the court once again to be dealt with in respect of two matters. The first matter is a summons dated 9th March 2018 that charges you with having breached a Community Corrections Order made by me on the 24th October 2017. The second matter relates to the fact that you have pleaded guilty to one charge of taking part in an act of sexual penetration with a child under the age of 16 years as well as one charge of being a registered sex offender, failing to comply with reporting obligations.
2In dealing with these matters I must have regard to the maximum penalties. On a summons for breach of a Community Corrections Order the court may impose a maximum sentence of three months' imprisonment. In addition, if the court finds the charge proved the court must act in accordance with the provisions of s. 83AS of the Sentencing Act 1991.
3The maximum penalty for the charge of taking part in an act of sexual penetration with a child under the age of 16 years is imprisonment for 15 years.
4The maximum penalty for the charge of being a registered sex offender, failing to comply with reporting obligations is imprisonment for 5 years.
5I shall hereafter refer to the issues raised by the breach summons as the breach matter. The other matters I shall refer to as the indictment matters.
6In order to put these offences in context I need to set out the chronological context that brings you before me again. On the 24th October 2017, I sentenced you in respect of one charge of taking part in an act of sexual penetration with a child under the age of 16 years. That was an offence that occurred on the 20th August 2016. The circumstances of that offending are described in my revised sentencing remarks. You were born on the 17th March 1998 and at the time of that offending you were a young offender aged 18. The victim was a young girl aged 14. You had sexual intercourse with the victim in a drain in Ringwood one afternoon.
7In sentencing you I made a Community Corrections Order with conviction for a period of three years. There were conditions that you comply with a Justice Plan attached to the order, that you be supervised, and that you not re-offend during the time of the Community Corrections Order. The sentencing remarks indicate that at the time of sentencing you I went to a great deal of trouble to ensure that you properly understood your obligations under the Community Corrections Order and the Justice Plan.
8Notwithstanding what you had been told by me and doubtless your legal advisers, you did not comply with the conditions of either the Community Corrections Order or the Justice Plan. This led the Department of Corrections to issue a first breach summons on the 22 of December 2017 charging you with breach of the Community Corrections Order by failing to attend for supervision, and for judicial monitoring, and to be managed as directed. A breach report dated 22 December 2017 was prepared. It envisaged that you had also breached by re-offending.
9You had been arrested on a warrant and brought before the court on the 28th December at which time you were remanded in custody by Judge Lewitan. The breach summons dated 22 December 2017 came on before me on the 23rd January 2018, at which time I found the contravention proven and confirmed the Community Corrections Order that I had made in October 2017. I was otherwise persuaded that I should take no further action by way of varying or cancelling the Community Corrections Order and re-sentencing you at that time.
10On the 8th February 2018 you were dealt with in the Dandenong Magistrates’ Court on charges of damaging property, two charges of unlawful assault, and throwing a stone to injure or damage property. Those offences occurred on the 23rd December 2017. The Dandenong Magistrates’ Court imposed a further Community Corrections Order on you for this offending. You are now also in breach of that Community Corrections Order.
11A second breach summons dated the 9th March 2018 was issued and it is that summons that is presently before me. That summons alleges that you breached the Community Corrections Order that I imposed on the 24th October 2017 again, by failing to comply with the conditions referred to above as well as re-offending.
12A further breach report dated the 16th March 2018 was prepared for the court by Corrections. That details Corrections' concerns that you are unable to comply with the Community Corrections Order. That report also foreshadows further offending of a sexual kind. The matters foreshadowed are now before me on the indictment and they are also further breaches of the Community Corrections Order.
13Before me, you pleaded guilty to the charge in the breach summons and the allegations that you have breached the Community Corrections Order were admitted. You also pleaded guilty to the charges in the indictment.
14That brings me to the charges in the indictment.
15The circumstances of your offending on those charges are contained in a prosecution summary dated the 7th of June 2018. That document was tendered in evidence and read in open court by the prosecutor Mr Glynn. Your counsel Mr Maloney agreed that the prosecution summary was accurate and forms a proper basis upon which I can proceed to pass sentence upon you. It is therefore not necessary that I here again set out in full what is contained in the summary and I will do so only in a very abbreviated way. These sentencing remarks need be read however in conjunction with what is contained in the summary.
16In the first week of December 2017, about 6 weeks after I imposed the Community Corrections Order, there was a gathering at a unit in Newborough at which a number of invited guests attended. All of them were young people and alcohol was consumed. You attended and you were then aged 19. You met the victim, a young girl aged 15. You were warned by a friend who knew of your conviction for sexual offending not to go anywhere near her. He described her to you in clear terms as “Jail bait to you”. But you did not listen, and soon after exchanging pleasantries with the girl via text message you engaged in sexual intercourse with her in the way alleged in the charge. In other words, you re-offended in a similar way approximately 2 months after I was persuaded by your counsel to give you a non-custodial disposition with a Justice Plan.
17Your offending was serious because you had a prior conviction for a similar offence and it occurred whilst you were the subject of a Community Corrections Order. Again the victim was a child. I accept your offending was spontaneous and was unplanned and that you are young with a mild intellectual disability, and occurred whilst you were drinking alcohol. Those matters help to explain the offending but they do not excuse it. The second charge on the indictment arises from the fact you did not report having contact with the 15-year-old girl to the police in accordance with your obligations under the relevant legislation.
18You have pleaded guilty to the charge at the earliest opportunity and that is to your credit. By your plea of guilty you have saved the time and costs of a trial and you have facilitated the course of justice. Importantly, the victim has not been called upon to give evidence against you. For that you are entitled to a reduction in the sentence that I will impose and this will be reflected in the sentence that I will shortly pass.
19You fall to be sentenced as a young offender. You have prior convictions in the Children's Court for non-sexual offending and two other appearances before the Magistrates’ Court for offences of dishonesty and violence. You have previously been the subject of a disposition that saw you serve a sentence in a Youth Justice Centre of 6 months.
20When dealing with young offenders, the sentencing process places emphasis on the need to rehabilitate the offender, and sentencing considerations such as deterrence, both general and specific, will be moderated with more emphasis given to rehabilitation. It was those considerations that led me to impose a non-custodial disposition in the first place. But you did not take advantage of the chance I gave you to rehabilitate yourself and engage in the programs that were available to you. Not only did you not engage at all with Corrections on the Community Corrections Order I imposed, you re-offended and you have not engaged in a further Community Corrections Order granted to you by the Magistrates’ Court. With offending such as this there is also a need for protection of the public to be kept in mind. I have formed the strong view that you will simply not ever comply with a Community Corrections Order and I am left with no alternative other than to send you to prison.
21You have a mild intellectual disability and you have been a client of Disability Services Victoria for most of your life. Dr Gee, who has provided two reports to the court, both of which I have had full regard to, has opined that your cognitive profile has been contaminated by adverse childhood experiences, as well as compromised educational opportunities and a failure to thrive. He thought you continue to suffer from a Moderate Major Depressive Disorder such that a term of imprisonment would result in imprisonment being more onerous upon you with the risk of mental deterioration. At times your cognitive capacity is also compromised by use of illicit drugs and alcohol.
22Mr Maloney acknowledged that the further offending in the indictment enlivened considerations of specific deterrence in the sentencing of you but he submitted not to the extent that your prospects for rehabilitation be expunged completely. He emphasised your youth, and submitted that I should impose a combination sentence in the form of a term of imprisonment and a new Community Corrections Order. He acknowledged that in passing sentence I must have proper regard for the need to protect the public. Dr Gee opined that you remain a high risk of re-offending sexually. I have given this matter a great deal of thought and I have concluded that a further Community Corrections Order will not achieve the purposes of sentencing required here, even rehabilitation.
23I requested an extended Pre-Sentence Assessment of you and I have received a detailed report dated 30th July 2018 from the Department of Justice. That report is a very comprehensive assessment of you and it has taken into account psychological reports prepared by Dr Baliz and Dr Gee that were tendered in evidence on your behalf. It has also taken into account your history, including your education and employment prospects and your family history and breach reports prepared. It refers to your use of methylamphetamine and cannabis and your binge drinking problem. The report concludes that you are unsuitable for a further Community Corrections Order. The report concludes that having regard to your breach history there are significant concerns as to your realistic capacity to comply with a further Community Corrections Order if imposed. I accept that recommendation.
24I think that were I to adopt the disposition urged upon me by your counsel I would only be setting you up to fail. I will impose a term of imprisonment. In arriving at a total effective sentence and in fixing a non-parole period I have had full regard to your youth and the fact you suffer from a mild intellectual disability and of all other matters pertinent to you.
25I find the charge in the breach summons proved. For breach of the Community Corrections Order made the 24th October 2017 you are convicted and sentenced to a term of imprisonment of 1 month.
26The Community Corrections Order made by me on the 24th October 2017 is cancelled. On the first charge of sexual penetration of a child under 16 that I previously had imposed the Community Corrections Order, you are convicted and re-sentenced to a term of imprisonment of 12 months.
27Dealing with the charges in the indictment. On the second charge of sexual penetration of a child under 16 years you are convicted and sentenced to a term of imprisonment of 18 months.
28On the charge of failing to report you are convicted and sentenced to a term of imprisonment of 1 month.
29I direct that 6 months of the sentence imposed on the first charge of sexual penetration cumulate upon the sentence imposed on the second charge of sexual penetration, making a total effective sentence of two years imprisonment.
30I direct that you serve a minimum term of 15 months imprisonment before being eligible for release on parole.
31I declare there has been 169 days pre-sentence detention under the sentences passed this day and I direct that 169 days be reckoned as having been already served, be entered into the records of the court and be deducted administratively.
32For the purposes of s. 6AAA of the Sentencing Act 1991 I state that had you not pleaded guilty to these charges I would have imposed a total effective sentence of 4 years and I would have fixed a non-parole period of 2 years and 8 months imprisonment.
33You have now been convicted of two separate offences of sexual penetration of a child under the age of 16. Each offence is a class 1 offence for the purposes of the Sex Offenders Registration Act 2004. As such you are a registrable offender under that Act with reporting obligations for life.
34Now, the prosecution seek the making of a forensic sample procedure under s464ZF(2); is that opposed?
35MR DAVIS: Your Honour, no opposing submissions to make on that, sir.
36HIS HONOUR: Yes. For the reasons stated in the order I'll sign that order. Mr Fedele, I'm about to sign an order that authorises a police officer to take a sample from - what's called a forensic sample from you, which is a swab from your mouth; you understand?
37OFFENDER: Yeah, I had one of them a couple of weeks ago.
38HIS HONOUR: Having signed the order - you've already given it, have you?
39OFFENDER: Yes.
40HIS HONOUR: Very well. I have signed that order.
41COUNSEL: As the court pleases.
42HIS HONOUR: Would you take Mr Fedele back into custody please.
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