DPP v Kala

[2021] VCC 151

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

Case No. CR-20-00670

DIRECTOR OF PUBLIC PROSECUTIONS

v

SERKAN KALA

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JUDGE:	HIS HONOUR JUDGE RYAN
WHERE HELD:	Melbourne
DATE OF HEARING:	1st February 2021
DATE OF SENTENCE:	12th February 2021
CASE MAY BE CITED AS:	DPP v Kala
MEDIUM NEUTRAL CITATION:	[2021] VCC 151

REASONS FOR SENTENCE
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Subject:CRIMINAL LAW

Catchwords:              rape - extensive criminal record - standard sentence offence – plea of guilty - intellectual disability - serious example of the offence of rape

Legislation Cited:      Sentencing Act 1991

Sentence:                  six years’ imprisonment and I fix the period of four years’ imprisonment as the period you must serve before you will become eligible for parole

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APPEARANCES:	Counsel	Solicitors
For the DPP	Ms Thorpe	The Office of Public Prosecutions
For the Accused	Ms O’Brien	Stary Norton Halphen

HIS HONOUR:

1Serkan Kala, on 1 February 2021, you pleaded guilty to an indictment containing one charge of rape.  You admitted an extensive criminal record which contains 46 convictions from 10 court appearances between September 2011 and March 2019.  Amongst your prior convictions are convictions for indecent assault, dishonesty and offences of violence.  The maximum penalty for rape is 25 years’ imprisonment.  Pursuant to the provisions of the Sentencing Act 1991, the offence of rape is a standard sentence offence, and the standard sentence for the crime of rape “in the middle range of seriousness” is 10 years’ imprisonment, while the non-parole period is six years’ imprisonment.

2Tendered as Exhibit A and read aloud in court was the Summary of Prosecution Opening on Plea.  In summary, on the evening of 12 February 2020, a number of people, including you, attended at your victim’s home.  The visitors sat around and talked while the victim painted a wall in her lounge room.  She observed the visitors consuming cannabis but did not smoke any herself.  Somewhere between 1.00am and 2.00am on 13 February 2020, your victim and a friend went out to a service station for approximately 20 minutes.  During her absence you tidied your victim’s bedroom by clearing the bed and changing the pillowcases. 

3Sometime after the victim returned home, she fell asleep on the couch.  The next thing the victim remembered was waking up on her bed with you on top of her with her legs in the air.  Your penis was in her vagina and she did not know whether you were wearing a condom.  Her jeans and underwear had been removed and were only on one leg. 

4The victim yelled at you “get the fuck off me, what the fuck do you think you are doing?”  You got off the victim and sat on her bed and said “you weren’t saying nothing when I was pulling your hair for three hours. Now you’re going to say I’m a rapist are you? Call the cops then. Go on”.

5The victim dressed and went to the kitchen and got a knife to defend herself.  She was screaming at you “get the fuck out of my house”.  She complained to a neighbour and later to her sister via telephone at about 9.45am. 

6At approximately 10.00am, you attended at the Moonee Ponds Police Station and asked to speak to a sergeant in private.  You spoke to Sergeant Foley and said:

·        you were at a place in Ascot Vale with some friends;

·        you were helping someone named Maria[1] to get to bed and was grabbing her under her arm to carry her;

·        you pulled her hair and was kissing her neck and licking her ear and she was moaning like she liked it;

·        you took your pants off and then you had sex, and then she acted like she woke up;

·        she was moaning like she was awake the whole time;

·        you had consumed Ice and marijuana on the night;

·        the other visitors had left the home at about 6.30am.

[1] A pseudonym.

7You were arrested and assessed by a medical practitioner and found to be fit for interview.  You were interviewed under caution in the presence of a third person.  You told police, amongst other things:

·        something had occurred at the place where you had been and the victim told you to leave, and you said you were not going to leave until the police came;

·        the victim went to the kitchen and got a knife and walked upstairs to a neighbour, so you left and went to the police station;

·        the victim was lying on the sofa after she had returned home at about 4.00am from going out;

·        the victim’s room was messy, so you cleaned her room.  When the other people left at about 6.30am, you shook her and woke her up;

·        you put her to bed and lay next to her on the bed and was pulling her hair as hard as you could to make sure she was awake, and you were fully shaking her;

·        your victim was fully awake and was loving it.  You took her pants and underwear off.  She put her legs on your shoulders and you were inside her and she acted like she woke up;

·        you had smoked two points of Ice during the night;

·        you knew in your head “nah, I can’t do this to you, you’re sleeping, no?”;

·        the victim would wear a dress with her bum cheeks hanging out. If you went anywhere with her, she would dress up for you and she had been in your presence dressed only in a towel;

·        before you put your penis inside your victim, you said to her “I can’t do this, you’re sleeping. I got a feeling you’re gonna turn on me, you had plans”;

·        you did not think that she was sleeping.

8Tendered as Exhibit B was the Victim Impact Statement of your victim.  She has been profoundly affected by your conduct.  She no longer trusts males, even her own friends.  She does not sleep in her own bed or bedroom.  She experiences nightmares and suffers from anxiety and depression to the extent that some days she cannot find the courage to leave her home.  Prior to the commission of your offence, she considered herself to be a very happy person.  However, she is now very rarely happy.  She misses her old self.  The effect of your conduct on your victim has affected her relationships with some of her close friends.

9The application of the standard sentence provisions was considered by a Bench of five Justices of the Court of Appeal in Peter Brown v R [2019] VSCA 286. At paragraph [4] of the judgment of the court it opined:

“The key new requirement is that a judge when sentencing for a ‘standard sentence offence’ must ‘take the standard sentence into account as one of the factors relevant to sentencing’.  This requirement:

•     is to be treated as a ‘legislative guidepost’, having the same function as the maximum penalty;

•     does not affect the established ‘instinctive synthesis’ approach to sentencing;

•     does not require or permit ‘two-stage sentencing’; and

•     does not otherwise affect the matters which the court may, or must, take into account in sentencing.”

10Later, at paragraph [7] of the judgment, the court opined:

“In our opinion, the standard sentence provisions do not have any bearing on the judge’s obligation to assess the seriousness of the subject offence.  That assessment remains a necessary part of the process of instinctive synthesis and it is not constrained by the legislative definition of ‘objective factors’.”

11Later, at paragraph [25] of the judgment, after reviewing the authorities, the court opined in respect to the non-parole period for a standard sentence offence that:

“These passages may be distilled into a number of propositions, as follows:

1.     The standard non-parole period is a ‘legislative guidepost’, in the same way as the maximum sentence is.

2.     In order for it to serve as a guidepost, meaningful content must be given to the legislature’s specification of the standard non-parole period as the non-parole period ‘for an offence in the middle of the range of objective seriousness’.

3.     Giving meaningful content to that specification requires that ‘objective seriousness’ be assessed:

(a)‘without reference to matters personal to a particular offender or class of offenders’; and

(b)‘wholly by reference to the nature of the offending’.

4.     The sentencing court is neither required nor permitted to assess whether the subject offence falls within ‘the middle of the range of objective seriousness’ by comparison with ‘an hypothesised offence answering that description’.

5.     The requirement to give reasons for fixing a non-parole period above or below the standard non-parole period does not require the judge to ‘classify the objective seriousness of the offending’.

6.     The judge must, however, identify all of the facts, matters and  circumstances which bear on the conclusion reached as to the appropriate sentence.”

12Ms O’Brien of counsel, who appeared on your behalf, tendered as Exhibit 1 her Defence Submissions on Plea and, as Exhibit 2, the neuropsychological report of Dr Loretta Evans dated 9 January 2021.

13Ms O’Brien accepted that the only appropriate disposition in the circumstances was a sentence of immediate imprisonment.  As at the date of your plea, you had spent 352 days on remand for this matter and you are presently incarcerated at Kareenga Correctional Facility.

14Ms O’Brien accepted that you are a 28 year old man with a history of violence and drug-related offending.  Further, she acknowledged that you have a longstanding history of incarceration for offences of violence and drug-related offences which commenced with a Youth Training Centre Order when you were aged 18 years.

15Ms O’Brien emphasised your plea of guilty and that it had both utilitarian value and was indicative of remorse on your behalf.  In particular, Ms O’Brien relied on your attendance at the Moonee Ponds Police Station on the day of your offending as evidence of your remorse.

16You are of Turkish heritage and grew up in the western suburbs of Melbourne.  You are the youngest of two boys and have an older brother who is aged 35 years and who is supportive of you.  Your parents separated when you were 12 years of age.  However, they have each remained supportive of you throughout your life.  Since your parents separated, you have lived with your mother who is aged 52 years. 

17You struggled academically at school and have what can only be described as very basic literacy skills, in that whilst you can read, your ability to write is severely limited.  Initially, you attended a mainstream primary school but later you were transferred to a special school.  You did not fit in to your new environment as there were many students who suffered from physical disabilities and you felt somewhat out of place. 

18In 2008, you were diagnosed with a mild intellectual disability and you have been in receipt of the disability pension ever since.  Apart from a few short-term labouring jobs, you have never worked. 

19In 2014, you were the victim of a shooting and sustained multiple shrapnel puncture wounds to your head from a shotgun blast.  I will return to this matter.

20In 2016, you suffered a serious ankle injury resulting from a motorcycle accident.  You underwent orthopaedic surgery as well as skin grafts.  You will require further surgery in the future.  This, too, is a matter to which I will return. 

21As to your drug use, you commenced using cannabis in your late teens and commenced using Ice at about 23 years of age.  You have a longstanding polysubstance addiction in combination with a diagnosis of paranoid schizophrenia.

22As a result of the motorcycle accident, you received a TAC payout of approximately $40,000, and your mother acts as trustee in respect of those funds.  She has purchased a house in Turkey for you where she hopes to return to with you, so that you may live a quiet life in a regional city some four hours’ drive from Ankara. 

23By reference to Exhibit 2, Dr Evans, in her most thorough report, sets out your medical and psychiatric history, both within the general community whilst you have been at your liberty and whilst incarcerated. Her neuropsychological assessment of you, creates a number of “push and pull factors” in respect to the ultimate disposition that I will impose on you.

24As a child in 1998, you underwent surgery for the correction to divide your tongue, and this procedure has left you with what Dr Evans described as a slight lisp. 

25Dr Evans reviewed the records of your general practitioner, in which it was noted that on 4 November 2014 you were shot and briefly treated at the Royal Melbourne Hospital.  A CT scan of your brain identified “multiple metallic pellets” in the left frontal scalp and left jaw, as well as various other upper body sites.  However, no changes or trauma to your brain were detected.  Shortly thereafter, you consulted your general practitioner where you presented with “depressed mood and low self-esteem”.  Your general practitioner considered that you presented with Post-Traumatic Stress Disorder secondary to the gunshot wound.  You were prescribed medication for anxiety. 

26Subsequently, your general practitioner referred you for psychiatric evaluation in 2016 and again in November 2018, against a background of a longstanding history of poor compliance with medication.  Contained within your general practitioner’s records was a copy of a discharge summary from Western Health which indicated that you suffered psychotic episodes on 16 October 2019 and 9 January 2020.

27The records of the Royal Melbourne Hospital identified you as a” high risk” patient due to a history of aggression, involvement in violent acts, and that you had a tendency of absconding.  On 6 November, you were admitted with gunshot wounds to which I have already referred.  Your injuries were recorded as “multiple small pellet injuries to the upper torso and left arm” following an argument with a friend.  During the plea, Ms O’Brien indicated that, at this time of your life, you were associating with persons of dubious character.

28On 14 April 2016, you were involved in a motorcycle accident and sustained a left dorsum foot wound and ankle fracture.  You required skin grafts but, following surgical intervention, however you discharged yourself against medical advice and you were “lost to follow up”.

29On 25 September 2016, you were conveyed by ambulance to the hospital having been stabbed to the left shoulder and neck.  A CT scan identified “two left posterior neck and one left trapezius penetrating injuries, with small amount of haematoma” and “multiple metallic foreign bodies to the left front and parietal bones as well as various locations in the jaw and right clavicle”.  A CT scan of your brain was normal. 

30On 29 March 2018, you presented at the hospital with left ankle pain following a police chase and fall.  You were not admitted and discharged into police custody following treatment.

31On 15 September 2019, you sustained an acute right thumb fracture whilst hitting a punching bag and you were treated conservatively.

32As to your psychiatric history, the records of the Northern Hospital and the Royal Melbourne Hospital reveal, insofar as the Royal Melbourne Hospital is concerned, that you have five documented inpatient admissions at an adult health unit and you have attracted the diagnosis of schizoaffective disorder, antisocial personality disorder and oppositional defiance disorder (in adolescence).  You engaged with child and adolescent mental health in 2003.  Four years later you presented to Orygen Youth Health in April 2017 and, as a consequence, you were admitted as an inpatient from 23 April to 2 May 2017.  This admission occurred on the background of increasing auditory hallucinations and persecutory delusions over a period of 12-18 months.

33You were treated as a psychiatric inpatient at the Northern Hospital on two occasions from 28 November to 4 December 2017 and again from 17 October to 23 October 2019 for relapse of psychotic symptoms.

34Shortly after your release from prison on 27 September 2018, you presented to the Youth Assessment Team at the Royal Melbourne Hospital and reported a recent decline in your mental health.  The records of the hospital show that you “displayed good insight into [your] psychotic symptoms and need for treatment and help seeking the same”.  You were admitted to the psychiatric unit on a voluntary basis but, shortly after your admission, you were arrested by police.

35On 9 November 2019, you presented with a psychotic episode characterised by extreme agitation and delusional thinking in the setting of methylamphetamine use.

36On 21 November 2019, you were taken to the Sunshine Hospital Emergency Department by police where you admitted to daily cannabis and methylamphetamine use. You required mechanical and chemical restraint due to your state of agitation.  Your most recent psychiatric admission occurred on 10 January 2020 and the records of the Royal Melbourne Hospital reveal that your last contact with them was on 17 February 2020. 

37The Department of Justice records reveal, you have been subject to psychiatric review whilst incarcerated in May, August and November 2018. 

38Since being remanded in February 2020, you have had extensive involvement with the prison mental health service.  Whilst at the Melbourne Assessment Prison in February 2020, you presented with a relapse of paranoid psychosis in the context of poor adherence to antipsychotic medication and illicit drug use.  In May 2020, upon assessment, you were not considered delusional nor did you express any paranoid ideation, and it was noted that you displayed “fair insight and judgement”.

39It was noted by those that had care of you that you “appear to be exaggerating symptoms to utilise it for placement gain”.  As late as May 2020, a clinical psychologist noted “Mr Kala demonstrated insight and resourcefulness in managing his mental health”.  In June 2020, you were assessed as “a man of low IQ that had not acquired independent living skills and was drug dependent”.

40On 13 July 2020, you were stabbed by other prisoners and, as a result, were moved to the Forbes Unit at the Ravenhall Correctional Centre.  At that time, you did not appear distracted or preoccupied, and it was documented “it should be noted that Serkan sometimes exaggerates his symptoms in order to manipulate his placement”.

41As to your forensic history, medical notes obtained from the Royal Melbourne Hospital refer to a forensic formulation that proposed you “had displayed considerable versatility in your offending behaviour with a significant history of violent and non-violent offending from adolescence through to 2016”.  As well as you exhibited the “capacity to plan and undertake instrumental offences using violence and a range of weapons”. 

42You underwent a neurological assessment conducted by Dr Evans, but you did not give of your best and, in short, Dr Evans was unable to confidently make an assessment in respect of you.

43In summary, Dr Evans was of the view that your use of language was not indicative of a moderate intellectual disability, and it is to be noted that you were assessed with a mild intellectual disability in 2008.  Your brain imaging has consistently reported normal results.  However, you have an extensive psychiatric history and you have attracted various provisional diagnoses in the past, including schizoaffective disorder, antisocial personality disorder and oppositional defiance disorder.  These diagnoses occur against a background of multiple psychiatric admissions and non-compliance with antipsychotic medication.  However, you are presently prescribed antipsychotic medication which reportedly has had good effect. 

44Dr Evans opined:

“He made comments to indicate he appreciates the difference between right and wrong at a basic level and understands the concepts of remorse and regret.  However, Mr Kala appears minimally inclined to attribute such elements to his personal circumstances or assume responsibility for his actions and his expressions of remorse appear due to the restrictive nature of his current incarceration.”

45Dr Evans considered that you were a high risk of re-offending in the future and that you were potentially vulnerable to exploitation, manipulation and physical aggression whilst in prison.

46Ms O’Brien informed me that there were two incidents in your life that adversely affected your mental health.  The first was a motor vehicle collision in which involved your father.  Your father suffered serious injuries and is on a Disability Support Pension as a result.  You became depressed after this event.  The second incident was the motorcycle collision in which you were involved that brought your promising soccer career to an end.  This, too, caused you to become depressed.  As you released yourself from the Royal Melbourne Hospital prior to the completion of your treatment, you suffer pain, stiffness, and restriction of movement in your ankle.  One leg is shorter than the other.  You are no longer permitted to go to the gymnasium, because an increase in weight on your upper body will exacerbate your condition.

47Ms O’Brien submitted, in conformity with the report of Dr Evans, that a sentence of imprisonment would weigh more heavily on you than it would on a person of normal health.  I accept that submission.

48Initially, Ms O’Brien eschewed any reduction of your moral culpability because of your intellectual disability and attributed your offending to your drug abuse.  On reflection, and discussion during the course of the plea, Ms O’Brien, in addition to relying on your intellectual disability as part of your general make-up, submitted that at the least it would have operated to reduce your understanding of the consequences of your actions.  In my view, your intellectual disability has the capacity to impact upon your ability to make sound judgements and to control your impulses and, accordingly, has the capacity to reduce your moral culpability. 

49Ms Thorpe, who appeared on behalf of the Crown, submitted that the materials available to me were too general and insufficient to form an assessment that your intellectual disability impacted upon your moral culpability. 

50Ultimately, I am of the view that some reduction in your moral culpability must flow from your intellectual disability.  However, this is not the end of the sentencing exercise as there are many other factors that must be taken into account in arriving at an appropriate disposition in your case. 

51You raped an unconscious woman in her own home.  Your offending is a serious example of the offence of rape.  However, you entered your plea at the earliest opportunity and are entitled to the benefits that flow to you from that plea, being that it is some evidence of remorse insofar as you can be remorseful, and that it has utilitarian benefit.  However, you suffer from an intellectual disability as well as psychotic illness and drug dependence.  Dr Evans assesses you as a high risk of re-offending.  You have a long history of violent, criminal behaviour.  Whilst you are not to be punished for your prior criminal history, it informs your prospects for rehabilitation which I regard as bleak, and I am of the view that any sentence imposed on you must have the effect of protecting the community from you.

52In your case, the application of the principle of general deterrence must be moderated to some extent.  However, because of your lengthy criminal history you must be specifically deterred from offending in the future.  The consequences of your conduct on your victim have been profound. Your conduct must be publicly denounced, and you must be justly punished for it bearing in mind the circumstances of your offending and taking into account your personal characteristics.

53As I have previously noted, your mother, as your guardian, has purchased from the TAC funds received on your behalf, a home in Turkey.  Upon the expiration of your parole period, it is intended that you and your mother will travel to Turkey to live permanently.  In my view, this stated intention can have little effect on the sentence that must be imposed on you. 

54My interpretation of the standard sentence legislation is that I am required to identify fully the facts, matters and circumstances which bear upon the judgement which I have reached as to an appropriate sentence in your circumstances.  I have endeavoured to do this in the reasons set out above. 

55Doing the best I can, taking into account the circumstances of your offending and their effects, your personal circumstances and antecedents, and endeavouring to produce a sentence which reflects and promotes the purposes of sentencing in a manner appropriate to you and your offending, I sentence you to six years’ imprisonment and I fix the period of four years’ imprisonment as the period you must serve before you will become eligible for parole.

56I declare that you have served 365 days by way of pre-sentence detention not including today. Pursuant to s6AAA of the Sentencing Act 1991, I declare that but for your plea of guilty I would have sentenced you to eight years’ imprisonment with a non-parole period of six years.

57Is there anything arising out of that sentence?

58COUNSEL:  No, Your Honour.

59HIS HONOUR:  Thank you very much.  Ms O'Brien, if you wish, I can make this link available to you in the time that's left to us, the time - I don't know.

60MS O'BRIEN:  Yes. 

61HIS HONOUR:  For you to speak with your client, or if you've made other arrangements then that's really a matter for you.  What would you prefer?

62MS O'BRIEN:  Your Honour, if we could have five or so minutes on the link, that would be welcome, thank you.

63HIS HONOUR:  Then, Ms Thorp, will absent herself from court and you will have time to confer with your client. 

64MS O'BRIEN:  Thank you.

65HIS HONOUR:  My staff will remain here to make sure that the link is maintained, if that's all right with you.

66MS O'BRIEN:  Absolutely.

67HIS HONOUR:  Thank you very much, Ms O'Brien.  I'd like to thank counsel for their very helpful submissions. 

68MS THORP:  Thank you, Your Honour. 

69HIS HONOUR:  I'll stand down now until 12 o'clock. 

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