Director of Public Prosecutions v Fedele

[2017] VCC 1683

IN THE COUNTY COURT OF VICTORIA Revised
(Not) Restricted
Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

CR-17-00706

DIRECTOR OF PUBLIC PROSECUTIONS

v

LACHLAN FEDELE

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JUDGE:	HIS HONOUR JUDGE LACAVA
WHERE HELD:	Melbourne
DATE OF HEARING:	18 August 2017
DATE OF SENTENCE:	24 October 2017
CASE MAY BE CITED AS:	DPP v Fedele
MEDIUM NEUTRAL CITATION:	[2017] VCC 1683

REASONS FOR SENTENCE

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Subject:  Sexual penetration under 16
Sentence:  Community Correction Order
  Sex offenders registration - 15 years

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms L. Di Pietrantonio
For the Accused	Ms F. Banihali

Pages 1 - 7

 

 

HIS HONOUR: 

1Just remain seated, Mr Fedele, if you would, thank you. 

2Lachlan Fedele, on 18 August of this year you pleaded guilty before me to one charge of sexual penetration of a child under the age of 16 years for which the maximum penalty is ten years' imprisonment. 

3At the time of your offending you were 18 years of age, having been born on 17 March 1998, the offending having occurred on 20 August 2016. 

4The victim in this matter was born on 13 January 2002 and was only 14‑years‑old at the time of the offending.  She lived with her mother. 

5At the time that you pleaded guilty you also admitted a short criminal record to which I shall briefly return later. 

6The circumstances of your offending are set out in writing in an amended agreed summary of prosecution open for plea dated 15 August 2017 which I marked as Exhibit A on the plea.  That document was tendered and read in open court by the learned prosecutor, Ms Di Pietrantonio, and it was acknowledged as being accurate by your then counsel, Ms Trumble.  She also agreed that it forms a proper basis upon which I can proceed to pass sentence upon you.  It is not necessary that I here repeat what is there set out in full, except in a very summary way. 

7On the day of the offence you were aware that the victim in this matter was 14 years of age.  You had sexual intercourse with her in a drain in Ringwood in the afternoon at about 3 o'clock.  You had previously been accompanied by another person who had shortly before left. 

8The prosecution tendered as part of the evidence victim impact statements from the victim in this matter and her mother.  I have read those victim impact statements in full and they set out what is the experience of the courts, namely that this kind of offending can have a profound effect upon the victim and those associated with her, namely her family, and this case is no exception.  The victim impact statements both reveal that your offending has had a profound effect upon the victim and that is likely to be the case for many years to come.

9In passing sentence upon you I have taken the effect of your offending upon the victims, as I must. 

10Your counsel, Ms Trumble, filed a detailed plea submission in writing which I marked as Exhibit 1 on the plea.  Fortunately in this case that outline was able to be served upon the prosecution prior to the hearing of the plea and the prosecution filed a response in which the prosecution generally agreed with the submissions contained in the outline of argument filed on your behalf. 

11In this matter you indicated that you would enter a plea of guilty at the earliest possible opportunity.  That was done at committal mention.  And your plea of guilty did, in fact, occur at the earliest possible opportunity.  By pleading guilty you saved the victim the trauma of having to give evidence and that is a significant factor in this case.  You have also saved the time and cost of a trial.  Because you have entered a plea of guilty, you are entitled to a reduction in sentence and I will indicate the extent of that reduction a little later. 

12I also treat your plea of guilty as an expression of genuine remorse on your part.  When you were interviewed by the police you made full and frank admissions in the record of interview. 

13I must take into account your young age.  As I said, you are now 19.  At the time of this offending you were 18 years of age.  You fall to be sentenced as a young offender as defined in the Sentencing Act.  I must have regard to your prospects for rehabilitation which I regard as generally reasonable.  Much will depend upon you being given every assistance possible to manage your life for reasons which I will come to later. 

14You have what has been described in the evidence as a mild intellectual disability.  At the conclusion of the plea on your behalf, you being defined as having an intellectual disability under the Disability Act 206 and you being a client of disability services, I had you assessed for a Justice Plan.  In generally describing you, that Justice Plan says as follows, "Mr He has been issued with a statement that he has an intellectual disability as defined by the Disability Act 2006. An assessment of Mr Fedele's cognitive abilities conducted by psychologist, Ms Tammy Rimmel, in July 2015 concluded that Mr Fedele is in the mild intellectual disability range. Mr He has reasonably developed expressive and receptive language skills. He has basic reading and writing skills. Mr Fedele can follow simple instructions. However, has difficulty when they are more complex. Departmental files indicate that Mr Fedele has adequate concentration and good memory of past events. Mr Fedele is independent in his personal care skills. He manages his own finances and has adequate domestic skills. Mr Fedele is able to use public transport independently. Mr Fedele has a diagnosis of epilepsy which is well managed with medication."

15The client overview attached to the judgment plan generally discusses your history, all of which I have taken into account.  Offending of this kind is very serious.  However, I am of the view that your offending falls towards the upper end of the lower range, if I can put it that way, for this kind of offending.  I take into account the fact that you were young.  But I also must take into account that the victim in this matter also suffered from some intellectual disability. 

16Ordinarily offending of this kind would attract a term of imprisonment, but in your case having regard to the level of your disability I am of the view that it would not be in your interest, nor would it be in the community's interest to have you sent to prison and for these reasons your counsel argued that I should make a community corrections order which I have agreed to do. 

17The prosecution did not oppose that course on the condition that you are also required to comply with a Justice Plan.  The Justice Plan having been prepared, I am going to make it a condition of the community corrections order that you comply with it. 

18For these reasons, on the charge of sexual penetration of a person under the age of 16 years, you will be convicted and I will make a community corrections order.  There are conditions of that order that you be subject to supervision.  The order will be for a period of three years; that you be subject to the supervision of the Community Corrections officer; that you undergo treatment and rehabilitation for mental health assessment and psychological and neuropsychological and psychiatric treatment, and that you undergo assessment and participation in the sex offender advice and treatment services program and that you will be judicially monitored by me for the period of the next three years.  The first date for judicial monitoring will be 17 April 2018. 

19It is also a condition that you comply with the Justice Plan which has been prepared in relation to you.  And you must comply with every aspect of that Justice Plan for the duration of the community corrections order.  Do you understand that, Mr Fedele? 

20OFFENDER:  Yes, Your Honour. 

21HIS HONOUR:  Had it not been for your plea of guilty to the charge, I would have imposed a term of imprisonment of two years and I would have ordered that you serve a minimum term of at least one year imprisonment. 

22That then leaves the question of the Sex Offenders Registration Act.  You have been convicted of a Class 2 offence under that Act and you are a registrable offender and you will be required to report and comply with all the aspects of that Act for a period of 15 years.  Do you understand that? 

23OFFENDER:  Yes, Your Honour. 

24HIS HONOUR:  Now one of the matters that Ms Di Pietrantonio has pointed out is that because you are a registrable offender under that Act, if you wish to leave the State for any reason whatsoever, and I understand you plan to go to New South Wales, albeit only for one or two days ‑ you will have to advise the relevant police officer about that and you will have to get permission to go.  Do you understand? 

25OFFENDER:  Yes, Your Honour.

26HIS HONOUR:  If you do not do that, you will commit an offence under that Act.  And if you commit an offence under the Sex Offenders Registration Act you will then breach the community corrections order.  You understand? 

27OFFENDER:  Yes.

28HIS HONOUR:  So it is a vicious circle and I strongly urge you to speak to Ms Banihali or speak to Ms Trumble about all of your obligations under the Sex Offenders Registration Act.  Do you understand? 

29OFFENDER:  Yes, Your Honour. 

30HIS HONOUR:  And if you are in any doubt about it, ask one of them what it is that you should do.  Do you understand? 

31OFFENDER:  Yes, Your Honour. 

32HIS HONOUR:  Now, just leave the dock if you would and come and take a seat behind Ms Banihali. 

33Get your client to just make sure that you're happy with that and get him to sign it if you would, Ms Banihali. 

34I should just add to my sentencing remarks something which I neglected to say and that is that in arriving at the sentence to impose a community corrections order with the Justice Plan, I have taken into account your prior convictions.  You do have some prior convictions in the Children's Court and lately in 2017 in the Magistrates' Court of various offences of assault and theft and other matters, but this is the first occasion upon which you have been convicted of an offence of a sexual nature and I have taken that into account. 

35I also take into account the fact that you have had somewhat of a tragic upbringing and because of your intellectual disability you need, I think, all the help you can get.  So that is why I have arrived at the sentence that I have, Mr Fedele.  Do you understand? 

36OFFENDER:  Yes, Your Honour. 

37HIS HONOUR:  I don't want you to be under any doubt that if you fail to comply with any aspect of the community corrections order or the Justice Plan, or if you commit any offence whilst subject to this order, you will be brought back before me and re‑sentenced.  Do you understand? 

38OFFENDER:  Yes, Your Honour. 

39HIS HONOUR:  Now, you'd better put a note in your diary or our phone or whatever, that you have got to be back here for judicial monitoring on 27 April next year at 9.30, here.  Okay? 

40OFFENDER:  Yes. 

41HIS HONOUR:  Very well.  17th.  Now, Ms Banihali, I would be grateful if you would explain to your client his obligations under the Sex Offenders Registration Act which you appreciate are onerous.

42MS BANIHALI:  Yes, Your Honour.

43HIS HONOUR:  And I don't want him to fall foul of that Act and trigger a breach of this order that I've just made because of it. 

44MS BANIHALI:  Yes, Your Honour.

45HIS HONOUR:  You understand? 

46MS BANIHALI:  We have had previous discussions in relation to his obligations, but we'll make sure that we go through it in detail. 

47HIS HONOUR:  I would be grateful if you would, thank you. 

48Thanks for your help, Ms Di Pietrantonio. 

49MS DI PIETRANTONI:  Thank you. 

50HIS HONOUR:  Thank you.       

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