DPP v Fedat [2020] VCC 1782 (21 October 2020)

Last Updated: 16 November 2020

IN THE COUNTY COURT OF VICTORIA

Revised Not Restricted Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

CR 13-01926

DIRECTOR OF PUBLIC PROSECUTIONS
v
KENAN FEDAT

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JUDGE:	HIS HONOUR JUDGE McINERNEY
WHERE HELD:	Melbourne
DATE OF HEARING:	21 October 2020
DATE OF SENTENCE:	21 October 2020
CASE MAY BE CITED AS:	DPP v Fedat
MEDIUM NEUTRAL CITATION:	[2020] VCC 1782

REASONS FOR SENTENCE

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Subject: CRIMINAL LAW

Catchwords: Contravention community correction order – Seven years from the original offending – Drug addiction – Original offending of recklessly cause serious injury

Legislation Cited: s. 83AS Sentencing Act 1991

Cases Cited: DPP v Charlie Dalgliesh (a pseudonym) [2017] HCA 41; [2017] 91 ALJR 1063

Sentence: Contravention proven, original order is cancelled and re-sentence on the original charges. Total effective sentence of 2 years and 2 months further declare 645 days of pre-sentence detention.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr D. Mence	Office of Public Prosecution
For the Accused	Mr M. Sturges	Emma Turnbull Lawyers

HIS HONOUR:

1. Well, formally, given the plea, I will find Mr Fedat guilty of the breach. Insofar as the breach is concerned, I sentence Mr Fedat to imprisonment of two months.
2. As to s.83AS, it is a different matter. I accept the submission of the prosecution and the recommendation of the Department that the community correction order, if it was still in existence, has now ceased, at least on my maths, it should be cancelled. But irrespective I intend to act under s.83AS(1)(b) to resentence Mr Fedat.
3. Insofar as that resentence is concerned, I note that the original sentence imposed by Judge Maidment in 2015 for recklessly cause serious injury was 20 months with a three-year community correction order.
4. Insofar as that resentencing is concerned, I take into account the matters that have been put to me ably, if I might say, on behalf of Mr Fedat by Mr Sturges today. I do not make these comments by way of any criticism of the community correction officers, but it is clearly set out in the community correction report that there was initial compliance. Indeed, on p.3 on the 'response to community corrections order', the following comments were made by Mr Kim:

'Following the induction appointment, Mr Fedat attended most of his supervision appointments in the first six months of this order.'

5. There were, however, and I have given Mr Kim the opportunity to detail if there was a need to amend schedule of failure of compliances. He maintains those failure of compliance still applied. I have no doubt given the complexity of Mr Fedat's issues, together with the impact of ongoing drug addiction, that there were times when there were difficulties between the community corrections officers and Mr Fedat. Indeed, Mr Fedat himself may have become frustrated during those relationships. But I accept that there was initial positivity in regard to compliance.
6. However, as the report clearly shows, insofar as a substantial purpose of punishment, 250 hours of work ordered, only 3 hours were performed, and 21 were credited. From the time he disengaged, his adherence has been an almost total failure.
7. As indicated, the most serious failure in regard to the community correction order is the subsequent commission of the five instances of criminality.
8. Having to resentence in those circumstances, one must initially take into account that this is now occurring some seven years from the original offending. I take into account also, the second matter raised by Mr Sturges, that some of the disruption caused to Mr Fedat personally, followed what is admitted as incorrect advice given to him initially as to the term of the community correction order, when Mr Fedat came out from serving the initial 20 months. I take that into account.
9. I also take into account the issues that beset him by way of loneliness, drugs, dependence and his own cognitive and intellectual issues. If I might say without in any way having the right to suggest anything about the initial sentence, the sentence of Judge Maidment was merciful, clearly understanding the issues that Mr Fedat had had in his life.
10. It is to be noted that unfortunately for at least the last 20 years he has been beset by the issues of drugs. I will come back to that when I read from Exhibit 1 which has been tendered today.
11. I accept there is some delay. I am not quite certain why, reading it. It would seem that from the file note read to the Court by Mr Sturges on 28 March 2018 after he received a sentence of one day, and it was indeed taken as a breach, there was an intent to breach him. The actual summons in that regard was not issued till after the subsequent conviction in September 2018 which involved the five offenses, details of those being set out in the materials that have been tendered today.
12. I do take into account that delay. However, I do not consider Mr Fedat’s issues with the community correction officers or such delay as providing any basis or reason for the criminality.
13. Clearly, the purpose of Judge Maidment giving this combined order was to try to ensure, given the steps at that stage that Mr Fedat had taken in his recovery in dealing with drugs, that such continued. I should say in Mr Fedat's favour, as is shown, he has at least on occasions tried and taken steps by way of counselling to deal with his issues. However, Mr Fedat is just another example unfortunately that often comes before this Court as to how difficult it is to deal with this addiction.
14. I also take into account in analysing the Crown opening that by way of combination of Mr Fedat and the others who attacked the victim with a wooden implement, which was believed to be a baseball bat, such resulted in a fractured skull and fractured ribs, indicating a serious offence. Such is also serious by Parliament having prescribed the maximum penalty of 15 years.
15. Insofar as additional matters put today, I accept totally the issues that will beset Mr Fedat in gaol. Those relate to the onerous nature of gaol given his circumstances, which I will come to when I read the neuropsychologist's report.
16. And in addition to that, of course, the current issues with COVID-19. Given the remanding of Mr Fedat, he has had to go through isolation of 14 days. As many decisions in the last eight months have indicated, Mr Fedat has to endure the risks of catching this virus while in prison. Fortunately, Corrections Victoria seems to be one of the bureaucracies that has had a success, at least to this date, that no one has been infected with COVID-19 whilst in gaol. That is because of very rigorous programs that have been undertaken in regard to people coming into the system.
17. That however does not stop the problems in gaol caused by COVID-19 being the daily lockdown, the reduction in services and in addition, the limitations in regard to visiting. I take all those matters into account as part of the onerous nature of any period of imprisonment to be served.
18. Insofar as Mr Fedat’s daughter is concerned, he has told me before in Court of his wish to be part of his daughter's life. I said to him at that time, the only way that is ever going to happen is if he finally rids himself of the curse of drugs in his life. But I understand that that will be an extra impact upon him in regard to serving a sentence.
19. Mr Sturges has raised the issue of totality, on the basis that Mr Fedat has already served the 20 months prescribed by Judge Maidment. Subsequently Mr Fedat served cumulatively another six months imposed upon him, then a further 61 days as a result of the sentences which make up the breaches in this matter. I do take as an appropriate matter in regard to proportionality and parsimony all of those circumstances as being necessary to take into account to ensure, as set out by the High Court in Dalgliesh [2017] HCA 41; (2017) 91 ALJR 1063, that Mr Fedat obtains a just and individualised sentence based upon the circumstances of this case.
20. Of assistance to the Court, and I do thank Mr Sturges' instructors, was the neuropsychological report of Dr Evans, Exhibit 1. Each counsel had the opportunity to make submissions in regard to this report. The findings are set out from [41]. As I have already said, and I will not go into it again, it is concerning the statements made as to the opinion of the specialist in [41] as to what steps Mr Fedat may or may not take in the future. I hope that Mr Fedat can get over these drug matters so that he does not continue to be in gaol and that he can enjoy his daughter's life. However, given the circumstances, one has to be guarded about that.
21. The diagnosis is rightly described in [42](i) as a constellation of signs and symptoms that correlate with the disorder along the autism spectrum, as recently diagnosed according to instructions Mr Sturges, that is an asperger's syndrome. It seems that certainly the neuropsychologist's opinion is consistent with that.
22. The diagnosis goes on to note in particular the matters referred to in [41](ii) in so far as to the impact on Mr Fedat’s life of chronic drug use and the damage that can occur to one's cognitive abilities. I will not go over that paragraph. At [42](iii) is also the actual concerns both counsel referred to.
23. Finally, most importantly, on a background of previously diagnosed borderline personality disorder and an anti-social personality disorder, Mr Fedat presents with a history of maladaptive personality traits, specifically instability in interpersonal relationships, unstable mood, impulsivity, apathy and a pattern of disregard for and the violation of the rights of others.
24. As I said, those comments of Dr Evans make the balancing in this case quite difficult. It is necessary for me to take that into account when considering the appropriate sentence, and I do so. Balanced against that of course must be importantly the necessity for principles of general deterrence, specific deterrence, punishment in regard to this matter to be effected.
25. Also, given those comments of the neuropsychologist, one has to take into account as a specific provision of s.5, issues of risk to the community. However, primarily one has to concentrate on this particular charge and the sentence must be provided in regard to this charge, taking into account the totality of matters. It is necessary also to understand that there are 645 days by way of pre-sentence detention in regard to this sentence. I also take account s.83AS(2).
26. Doing as best I can, in particular taking into account the further comments made by Mr Mence, as well as in his submission, the resentencing in regard to this one charge will be as follows.
27. There is so many aspects of this sentence. I do not intend to fix a non‑parole period because pursuant to s.11(1) I consider that the nature of the offence, and the past history of the offender, make the fixing of such a period inappropriate in these circumstances.
28. I am going to sentence Mr Fedat to a straight sentence of two years and two months. I declare that the 645 days served, both by way of the sentence imposed by Judge Maidment and the remand of 35 days, be deemed as service of this sentence. The effect of that will be that there is an additional six months to be served on this sentence, a straight six months.
29. It was my original view that the two months that I imposed in regard to the breach offence should have been served cumulatively on the sentence in this matter. However, I have reconsidered that in all to the circumstances and I will not make an order as to cumulation in regard to the sentence under s.83AD. The end result, is that the sentence I impose is two years and two months which effectively means, when you take off the one year and eight months, that your client has to serve an additional period of six months.
30. In regard to s.6AAA, I do not know how in this case I can comply with the requirement to Parliament given the totality of the circumstances but all I can say is that had he not pleaded guilty, the sentence would be much higher.
31. Mr Prosecutor or Mr Sturges, any matters that I have not attended to?
32. MR MENCE: No, Your Honour. I think that you have covered the field there and I think that in relation to s.6AAA, what you have said is sufficient to address the legislative intention behind s.6AAA.
33. HIS HONOUR: Well, Mr Mence, it is always difficult because it relates to one aspect only, and there are so many aspects in regard to Mr Fedat.
34. MR MENCE: Yes.
35. HIS HONOUR: But as best I can - that is as best I can answer it in these circumstances.
36. MR MENCE: Yes. No, I think that does satisfy the intention behind s.6AAA, Your Honour. So I do not think there is any issue there.
37. HIS HONOUR: Mr Sturges, do you want the further opportunity to talk to Mr Fedat in the lobby?
38. MR STURGES: No, thank you for the opportunity, Your Honour. I might arrange a conference with him to go through it in more thorough detail. But thank you.
39. HIS HONOUR: Right. Mr Fedat, when this is explained to you by Mr Sturges, he will tell you what your rights are and that is totally a matter for you and him. All I want to say is given your age now, and I have said this to you before, if you want to be part of your daughter's life, your life has to change otherwise we are going to continually have to give you gaol as we have unfortunately over the last 20 years. So all I can do is wish you well.
40. OFFENDER: Thank you, Your Honour.
41. HIS HONOUR: Yes, thank you.
42. OFFENDER: How long is it? Six months or five months?
43. HIS HONOUR: Six months.
44. HIS HONOUR: Thank you Mr Sturges and Mr Mence.
45. MR MENCE: Yes. Thanks Your Honour. May it please the Court.
46. HIS HONOUR: Yes Mr Tipstaff.

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