Director of Public Prosecutions v Cardamone

[2017] VCC 1367

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

AT WANGARATTA
CRIMINAL JURISDICTION

CR 17-01551

DIRECTOR OF PUBLIC PROSECUTIONS

v

MARIA CARDAMONE

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JUDGE:	HIS HONOUR JUDGE MULLALY
WHERE HELD:	Wangaratta
DATE OF HEARING:
DATE OF SENTENCE:	22 September 2017
CASE MAY BE CITED AS:	DPP v Cardamone
MEDIUM NEUTRAL CITATION:	[2017] VCC 1367

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr A. Moore	Office of Public Prosecutions
For the Accused	Mr R. Stary	Stary, Norton, Halphen

Pages 1 - 12

 

 

HIS HONOUR:

1Maria Cardamone, Karen Chetcuti was your neighbour.  On any analysis, Karen Chetcuti was a vibrant and much loved woman.  On 13 January 2016 she was brutally murdered by your son, Michael Cardamone.  That crime was described by the very experienced Supreme Court Judge, Justice Lasry with all that he has seen, as a crime which was "Quite simply horrifying, depraved and disgusting." 

2Now, at the age of 78, in fact days from turning 79, you have pleaded guilty to an attempt to pervert the course of justice.  The prosecution to which your attempt to pervert the course of justice was directed was this most serious crime of the murder of Karen Chetcuti committed by your son.  I need to elaborate a little more on the facts so as your role, a limited one, is properly understood.

3It seems almost from the time Karen Chetcuti went missing and certainly after her body was found Michael Cardamone was a suspect for the investigators.  He was in fact, arrested on 19 January 2016, the day after Karen Chetcuti's body was found. 

4In the days before and after his arrest, Michael Cardamone provided many false accounts designed to mislead police and incriminate others, most particularly a man named Edward George. Michael Cardamone had enlisted the help of Mr George to destroy Karen Chetcuti's car after the murder.  Mr George later co-operated with the police and was to be an important witness in the prosecution of Michael Cardamone for murder.  It seems from quite early on after his arrest Michael Cardamone was aware the Mr George was to be a witness against him and he falsely asserted that Mr George was the murderer. 

5It was in that context that Michael Cardamone determined to do what he could to have Mr George murdered.  The plan was not just that Mr George would be killed and thus out of the way, rather he was to be killed in what was to be portrayed as a suicide.  What was also to be included was Mr George was to be forced to write a false confession to the murder of Karen Chetcuti.

6The police came to learn of Michael Cardamone's plan and sent an undercover police officer to see Michael Cardamone in prison.  The undercover policeman was to play the role of a hitman willing to do as Michael Cardamone wanted and murder Mr George for payment.

7Michael Cardamone had to have a way to pay or get the money to the purported hitman.  Michael Cardamone prevailed on you, Maria Cardamone, to withdraw the money from your bank and hand over to the undercover police officer posing as the hitman the first down payment.  There was to be a second payment after the planned murder was completed.

8The prosecution made clear that your crime was to act as a conduit for the transfer of the money.  The prosecution do not say that you knew that the plan was to murder Mr George.  You did know that the funds were going towards an effort to prevent Mr George from giving evidence.  I will say more of your belief as to your son's involvement or lack of involvement in the murder of Karen Chetcuti later in these reasons.

9Before proceeding further in any assessment of the gravity of your crime and your moral culpability, I need to raise aspects of your personal circumstances so as to put into context why you became involved in this attempt to pervert the course of justice. 

10As I have said, you are 78, soon to be 79.  You were born in Calabrese, Italy.  You were educated only to Grade 5 after which you worked with your family in Italy.  You migrated with a brother and your very recently widowed mother to Australia when you were in your early 20s.  You worked first in a shoe factory.  Then, again whilst in your early 20s, you married a man you knew in Italy who had also migrated to Australia. 

11An important matter in the scheme of things here is that you and your husband were married for just short of 50 years before his sudden and tragic death in 2014. 

12Shortly after you were married, that is in around 1966, you moved to Myrtleford.  You and your husband worked long and hard hours as tobacco farmers until that form of agriculture faded out.  You continued to work long hours as proprietors of a café in a catering business.  There were other ongoing farming interests with deer and olives.  What stands out is the prodigious work ethic of both you and your husband over many decades.  That matter is very much to your credit. 

13You had two children.  Your son, Michael Cardamone, already mentioned, and your daughter who is now playing a more important role in your life. 

14At the time of Karen Chetcuti's murder you lived on the neighbouring farm with your son after he was released from prison for earlier offending.  As mentioned, your husband had died suddenly after minor surgery in 2014.  You were and remained devastated by his death.  It seems you have deteriorated in many domains since that time.                  Following the death of your husband you came to rely on and unfortunately trust your son.  You were, in my estimate, quite vulnerable to his manipulation prior to the murder of Karen Chetcuti and more so after he was arrested and placed on remand.

15Thus, after he was charged with Karen Chetcuti's murder, and then maintained his innocence to you, in daily letters and telephone calls from the prison, you came to the blinded view that he was being falsely implicated.  Thus, when he called you to request you to withdraw money and arrange for it to be collected, you complied. 

16You were involved in a number of coded telephone calls which reveal what you were asked to do by Michael Cardamone.  You were asked and you did gather the money, a total of $9,000 and you gave that to an undercover police officer on the afternoon of 23 March 2017.  The offending to which you have pleaded guilty being the attempt to pervert the course of justice occurred through the time from 1 March 2017 to 31 March 2017. 

17Your involvement in this crime is also to be seen in the light of the significant deterioration of your mental health in recent years.  You have been under the care of your general practitioner, Dr Hassan Uzanin, at Wangaratta for many years.  His letters, which were tendered on the plea, make it clear that you had been suffering from significant depression for some time.  Mainly, but not solely as a consequence of the loss of your husband in 2014. 

18Also impacting upon your levels of depression was your own breast cancer diagnosis and surgical treatment in 2015.  You also lost some of your mobility for a time with knee surgery which saw you wheelchair bound for a stint. 

19In more recent times prior to your arrest and incarceration which commenced on 4 May 2017, your doctor and mental health nurse considered you needed assessment for the onset of dementia.  A nurse practitioner, Mr Maher, had seen you for depression from September 2016 with little or no change from the seven or so sessions that he had with you.  He noted that there were concerns about your memory.  It is to be noted that your daughter was also concerned about your failing memory.  A cognitive dementia and memory assessment was initially conducted in your home in Wangaratta where you had moved following the arrest of Michael Cardamone.

20Further, more detailed, assessment was then conducted at the Albury/Wodonga Cognitive Dementia and memory service.  In fact it occurred earlier on the day that you were taken into custody being 4 May 2017. 

21The result of that assessment indicated a decline in your cognitive function but in the opinion of Ms Bowman who conducted the tests and reported to your general practitioner there were inconclusive aspects due to you being overwhelmed and distressed during the assessment.

22The further assessment was undertaken by the neuro psychologist, Ms Nola Ross, who was engaged for the purposes of these legal proceedings.  She saw you in custody.  She too had some difficulties in her assessments because you felt overwhelmed with where your life had got to.  Ms Ross concluded that you showed signs of significant clinical depression and the onset of dementia.  She wrote, and I quote: 

"The significant impairment in Ms Cardamone's attention, working memory, comprehension, identified in the current neuro-psychological assessment is consistent with the CDSMS assessment.  Mrs Cardamone's history and presentation indicates apathy, a spontaneity indifference, emotional flatness, disorganisation, inattention, loss of insight, perseveration, poor judgement and irritability.  Ms Cardamone has been treated by her GP for severe depression.  The concurrence of depressive disorder and dementia, progressive cognitive decline is common in older people.  Diagnosis is challenging because of the frequency of symptoms that are common to both disorders.  One hypothesis suggests that depression leads to dementia and another suggests that dementia itself leads to depression." 

Ms Ross concluded as to her opinion:

"Ms Cardamone's history, presentation and neuropsychological assessment indicate a co-occurrence of long-standing depressive illness and progressive declining cognition." 

23Following that assessment and in accordance with the matters raised by Ms Ross, that you were at a point of requiring a guardian to manage your affairs, an application was made to the Victorian Civil and Administrative Tribunal for a guardianship order.  That order was made placing guardianship in the hands of your daughter. 

24Another suggestion made by Ms Ross was that aged care psychiatric consultation may be necessary to clarify primary diagnosis.  It is understood that such consultation and indeed housing in an aged care facility is what is proposed for you in the near future. 

25You were also seen by the medicolegal psychologist, Ms Lechner who confirmed you suffer from major depressive disorder and have done so for a number of years.  Certainly prior to your offending conduct.  Also, Ms Lechner commented on the signs of cognitive deterioration as she acknowledged accurately that no formal diagnosis has been announced due to the overlay of your depression and all the circumstances of you feeling overwhelmed during the assessments. 

26I have recounted these important aspects of your personal circumstances and mental state because unsurprisingly, your counsel, Mr Stary, in his comprehensive written and oral plea called in aid the principles outlined by the Court of Appeal in the case of Verdins.  One of those principles is whether your state of mental health operates to reduce your moral culpability. 

27Thus, I have not at this point announced any finding or assessment as to your moral culpability deferring that matter until all aspects of your mental health were set out.  Mr Stary contended that in addition to the issue of moral culpability all other matters articulated in Verdins had mitigatory application in your case. 

28The prosecution, having had the benefit of all the expert reports and having given the matter considered assessment at a high level in the end do not demur from what was put on your behalf.  As to the applicability of the Verdins principles, I agree with the parties.  I do consider for the brief reasons I will set out below that each of the principles operate to mitigate penalty in your case.  Although the clinicians grappled with what was the precise diagnosis and whether depression led to dementia or vice versa, I am relieved of coming to some diagnostic conclusion as my concern in sentencing is what role your impaired mental health had on your offending and what impact it has on sentencing considerations. 

29In my view your clinical depression and the onset of dementia and cognitive deterioration are implicated in your poor decision to assist your son by being the conduit for the money.

30As stated, you were vulnerable and malleable and thus you engaged in a misguided and ill-conceived course of behaviour.  In my view, this is one of those rare instances where an impaired mental functioning, though short of the legal definition of mental impairment does operate to reduce your moral culpability.

31Your moral culpability must be assessed as significantly lower than might otherwise or ordinarily be the case.  This means that I will moderate to a significant degree the weight to be given to denunciation and punishment. 

32When it comes to the matter of general deterrence, what needs to be acknowledged is that for this offence of attempting to pervert the course of justice general deterrence is usually a very weighty matter.  However, because of your impaired mental functioning, you are not the vehicle to send a message to others. 

33There are other examples in appellant decisions of parents acting in a way that has the tendency to pervert the course of justice for the benefit of a child who has committed some crime or other.  In those cases, general deterrence is rightly said to be a primary sentencing consideration. 

34However, the circumstances surrounding your pre-existing depression and onset of dementia make your case very different.  Thus, general deterrence will be suitably, meaning in this case, significantly, moderated.

35In my view, this is not a case where specific deterrence is relevant.  You, Ms Cardamone have never been in any trouble before.  Your blind allegiance to your son is what brought you before the courts.  He is now sentenced to life imprisonment with no minimum non-parole period fixed.  Your condition is such that you will be cared for by your daughter and then the appropriate aged care facility. 

36Although you have limited insight into your offending this is not a case where such a fact leads to concerns about the need for deterrence to you.  Your limited insight, even in light of your son's plea is more telling of the extent of your impaired judgment about him. 

37As to your present situation in prison, I accept you remain overwhelmed by prison life and have, of late, withdrawn so as to avoid being preyed upon by other prisoners.  Your clinical depression remains and with the limited resources of prison clinicians and the fact that they rotate in their duties indicates that this is far from adequate treatment regime for the level of depressive illness that you suffer from.  Nor can it be said that there are adequate resources for your growing dementia. 

38Necessarily, prison is a harsh environment.  I accept that for you any incarceration will be harder than would be the case if you did not have your depression and degenerative dementia.  I accept that further imprisonment will highly likely exacerbate your condition and thus, I must consider alternatives. 

39There are other important mitigatory matters that must be given due weight.  First, your plea of guilty.  Your plea of guilty brings a formal end to the legal aspects of this horrifying episode and to that end it is a plea of considerable value.  I accept that there will be lifelong pain for those who loved Karen Chetcuti but, of course, that burden has been brought about by the murder committed by Michael Cardamone.

40I will say more of the victim impact statements and in particular that of Mr George, shortly.  In the end, your plea of guilty means your sentence will be less than otherwise it would be.  I take into account that you, assisted by your lawyers, have approached this matter by seeing appropriate resolution as speedily as possible.  You did not seek bail but rather accepted your responsibility and moved your case towards a speedy conclusion. 

41In fact, it is a resolution that is as quick as just under four months from your arrest to final sentence.  This shows that if in a serious and complex matter such as this everything can get done in four months then the courts must not in future tolerate long delays with the consequent ongoing burdens for victims and generally the adverse impacts on our system of justice.  Your lawyers and the prosecutors are to be commended for the way this matter has been dealt with. 

42Ultimately your counsel argued that in the unusual circumstances of this case the appropriate sentence was one of imprisonment but the term would be for the time you have already served on remand.  The prosecution having, as I have said, considered this matter at the highest levels agree that the appropriate sentence would be one of time served. 

43Of course, sentencing is for judges, not the parties.  However, the concession by the prosecution that the time you have served in prison is enough is a matter of real importance in a case like this.  It is a submission not lightly made. 

44I have considered the submissions of the parties together with all relevant matters both for and against you. Importantly, notwithstanding the powerful and long catalogue of mitigatory matters in your favour, I have not lost sight of the gravity of your crime and the circumstances of you becoming involved albeit without full knowledge of a scheme authored by your son, a man without redemption.

45Amongst the things that I have considered are the victim impact statements.  I have taken them into account in a measured way.  They were heartfelt.  Speaking of the loss, the authors of the victim impact statements felt as a consequence of the murder of Karen Chetcuti.  Mr George spoke of the added impact upon him of his sense that he was wrongly judged by people.  He had to relocate to safer surrounds, took to drinking more than he usually did and has seen that his health, not the best before all this, is now worse due to the stress and worry.

46I have not lost sight of the maximum term for this crime but I also note what is being said as to the long maximum term for attempt to pervert the course of justice.  In particular that it is an offence where the spectrum of offending is very broad.  In the end your involvement in this crime is not an example of offending at the highest end, quite the contrary.

47It is my firm view that your role and all the circumstances allow for a conclusion that your offending was a the lower end of the scale.  I have endeavoured to express the key sentencing purposes during the course of these reasons and how, in this case there must be moderation in recognition of the unusual circumstances of the offence and you, as the offender.  I am mindful of the words of Justice Tadgell that "The law immemorially showed tenderness towards the very young, the very old and the sick."  It was in His Honour's words, necessary to show some mercy "tempering the wind to the shorn lamb."         

48As a first offender at your advanced age, you are entitled to ask for and receive a measure of mercy.  In your case, the mercy sought is not to avoid gaol all together but to avoid any further gaol than what you have served.  In the exceptional circumstances of you as an offender and in particular the role you played in the offence, I am of the view that the just and appropriate sentence which satisfies all sentencing purposes is imprisonment for what you have so far served.  Can you please stand?

49Maria Cardamone, for attempting to pervert the course of justice you are sentenced to be imprisoned for 141 days.  It has been reckoned that you have served 140 days on remand thus far.  This number of days having been reckoned, I declare that the 140 days is part of the sentence, indeed, the whole of the sentence that I have just announced.  I will ensure that this declaration is entered into the records of the court so that the prison authorities are left in no doubt that you have served the entirety of the sentence that I have just imposed and are to be released upon the court adjourning.

50Had you pleaded not guilty to this offence and been found guilty of it, I would have imposed a sentence of two years with a minimum of 12 months.  I make orders for the forfeiture of the money paid to the undercover operative. 

51Further, upon the application of the Crown for the taking of a forensic sample, so that your DNA can be extracted and placed on the database, I have considered this application and considered your advanced age and the almost certainty that you will not re-offend.  Nonetheless, in my view, given the seriousness of the offence and in particular that it is in the interests of justice, I propose to grant the application by the prosecution.  It seems to me that the interests of justice are such that in this instance your DNA ought to be on the database as it may assist generally in law enforcement in investigation of crimes.

52What you have to understand Mrs Cardamone, is that you must attend at a police station within a window of time that opens four weeks from now and remains open for four weeks.  In that time you must attend at a police station, provide the sample, if you do not co-operate the authorities are entitled to use reasonable force to obtain the forensic sample.

53Is there any other orders required?

54MR MOORE:  No, Your Honour.

55MR STARY:  No, Your Honour.

56HIS HONOUR:  I thank counsel for their very considerable assistance in this matter.  I thank all those involved in it for the dignity that has been shown.   I need to sign a document which I will do now and provide that to the parties, the prison folk here will endeavour to deal with what they have to do to return Ms Cardamone to the cells here in Wodonga, in Wangaratta, I presume and then for her to be released into the custody of her - released to the company of her daughter and Mr Stary. 

57Mr Stary, the interpreter's copy of the reasons can be provided to you.

58MR STARY:  Thank you, Your Honour.

59HIS HONOUR:  Mr Moore will provide a copy to the Crown.  There are others from the press who are registered or certified or whatever the term is for County Court. Copies of those sentencing remarks can be made available.  They will also be available on the County Court media portal and the website as soon as possible. 

60MR STARY:  Thank you, Your Honour.

61HIS HONOUR:  So, to anyone else who wishes to consider these reasons available on the - to be made available on the County Court website in due course.  There's nothing further?

62MR STARY:  No, Your Honour.

63HIS HONOUR:  Mrs Cardamone, I think has to be taken to the cells as I understand it, could that occur now?  Mrs Cardamone can be - I understand, sorry.

64HIS HONOUR:  Madam Interpreter, thank you very much for your assistance. 

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