R v Fedele (Sentence)
[2011] VSC 58
•9 March 2011
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
No. S CR 0038 of 2010
| THE QUEEN |
| v |
| SALVATORE FEDELE |
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JUDGE: | WHELAN J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 4-8, 11-15, 18-22, 25 October 2010, 17 December 2010, 4 March 2011 | |
DATE OF SENTENCE: | 9 March 2011 | |
CASE MAY BE CITED AS: | R v Fedele (Sentence) | |
MEDIUM NEUTRAL CITATION: | [2011] VSC 58 | |
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CRIMINAL LAW – Sentence – Two counts of intentionally causing serious injury – Serious violent offender on second count – One incident – Attacks on two victims – Partial concurrency directed – Total effective sentence 12 years with non-parole period of 9 years.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr A Shwartz (Mr J Lewis on 4/3/11) | Solicitor for Public Prosecutions |
| For the Accused | Mr R Backwell | Victoria Legal Aid |
HIS HONOUR:
Salvatore Fedele, on 5 October 2010 you were arraigned on an indictment charging you with two counts of attempted murder, two counts of intentionally causing serious injury, and two counts of recklessly causing serious injury. You pleaded not guilty to all counts.
At your first trial, the jury returned a verdict of not guilty on one of the attempted murder counts (Count 4) and guilty on one of the counts of intentionally causing serious injury (count 5). That jury was discharged without verdict on the remaining counts. On your second trial, you were found not guilty of the remaining attempted murder count (Count 1) and guilty on the remaining count of intentionally causing serious injury (Count 2). As the counts were alternatives, no verdicts were required on the two charges of recklessly causing serious injury (Counts 3 and 6).
The two counts of intentionally causing serious injury of which you have been convicted concern your wife, Doris Fedele (Count 2), and your daughter’s then boyfriend, Mark Olczak (Count 5).
The maximum penalty for the offence of intentionally causing serious injury is 20 years’ imprisonment.
At your two trials evidence was given on behalf of the prosecution by your wife, Doris Fedele; your children, Natalie and Steven; Natalie’s then boyfriend, Mark Olczak; and two of your neighbours, Allan[1] and Joanne Dodsley. Their accounts, whilst not identical, were broadly consistent with each other. You gave evidence at both trials and gave an entirely different account of what occurred.
[1]Mr Dodsley’s given name is not “Allan” but he was referred to by the name “Allan” by all witnesses in the case, including himself.
I set out below the circumstances of the two offences as I find them to be. Consistently with the verdicts, in all important respects I accept the substance of the accounts given in both trials by the members of your family, by Mr Olczak, and by your two neighbours, the Dodsleys. I reject the account which you gave.
On 9 August 2009 your wife, Doris Fedele, was living at what had been your family home in Werribee, with your son Steven, your daughter Natalie, and Natalie’s then boyfriend Mark Olczak. You had not been living at that home for a year due to an intervention order which had been taken out against you. You had been living with your sister in Eltham.
The intervention order against you expired on 7 August. Two days later you took a 24cm long knife from the kitchen of your sister’s house in Eltham and drove to the house in Werribee. You arrived at the house at approximately 3:20pm and rang the doorbell. You had not warned your wife that you were coming. When you arrived, your wife was at home with Natalie, Mark Olczak, Steven and a young friend of his.
When your wife answered the door you asked her to come outside. She initially said no, and invited you inside to see the children. You went inside, spoke with Natalie about her school report, and left money on a coffee table. You then led your wife outside, saying you wanted to speak to her. You and your wife went to the front of the house. After a brief conversation you attacked her. The precise terms of the conversation are unimportant, save to say that you were seeking to return to the home and she rebuffed you. This is what prompted your attack. You bashed her head against the brick wall of the house and pulled at her hair. She screamed for help.
Hearing her screams, Natalie, Mark Olczak, Steven and his friend ran outside. With help from Mark Olczak and Natalie, your wife was able to escape from you. She, Natalie, Steven and his friend then ran inside the house with Mark Olczak following, keeping himself between them and you. He described you as looking very aggressive and pent up. Mrs Fedele waited at the front door, holding it open for Mark Olczak, and told Natalie to call the police.
With Mark Olczak between you and the front door, you produced the knife you had brought with you. You lunged twice at him with the knife, succeeding on your second lunge at stabbing him in the chest. He fell backwards against a gate, out of your way.
You turned your attention to the front door of the house, where your wife was by then closing the security door. You moved to that door, and while it was still slightly ajar you thrust the knife through the opening. You withdrew the knife from the opening and your wife succeeded in closing and locking the security door. She described you as looking enraged. You then stabbed the knife at her with great force through the wire of the security door. The knife penetrated the wire and struck her left hand, resulting in a serious injury to her little finger.
Mrs Fedele ran into the kitchen. She then heard a smashing noise coming from her bedroom. She went and looked through the bedroom door and saw your foot coming in through the broken window. She told the children they had to get out of the house. They all ran out the back door and around the side of the house to the front lawn. Mrs Fedele picked up a loose fence paling as they ran.
In the meantime, Mark Olczak had gone to a neighbour’s house for help, but had found no-one at home. He returned to the front yard and saw you kicking in the bedroom window. He was bleeding profusely and was feeling light headed. He walked toward the front fence. He saw Allan and Joanne Dodsley. They had been brought out of their house by the sound of screaming. He showed them the wound to his chest. Mrs Dodsley went back into her house to get a towel and to call the police. Mark Olczak sat down on the fence and Mr Dodsley tried to stop the bleeding.
When Mrs Fedele and the children reached the front yard they saw Mark Olczak, sitting on the front fence, and Allan Dodsley. Your wife asked Mr Dodsley for help. At some point she handed him the fence paling. Mr Dodsley told her and the children to go to his house, and she and Natalie helped Mark Olczak get up and they moved toward the Dodsley house.
Mr Dodsley went toward the front of your house. You came out of the front door with the knife. Mr Dodsley started walking backward toward his house with you following. You jumped the fence into the Dodsleys’ front yard cutting off your wife, Mark Olczak and Natalie, and you waved the knife at Mrs Dodsley, who had come back out of their house with a towel and a cordless phone. Mr Dodsley told Mrs Fedele and the others to go on down the street.
Mrs Fedele and the others moved down the street towards a vacant lot. Mr Dodsley followed, keeping himself between them and you. You pursued them. Mr Dodsley asked you to drop the knife a number of times. On one occasion you replied something to the effect: “she’s ruined my life, now I’m going to ruin hers”. The group got to a point just past a real estate sign on the fence of the vacant lot when you tripped. Mr Dodsley jumped on your back and held you down until the police arrived.
Your action in stabbing your wife resulted in her suffering an incised wound over the palmer surface of her left fifth finger. Both the tendons that flex the finger were severed, as was one of the digital nerves. The injury required surgical repair. It may yet require amputation.
In stabbing Mark Olczak in the chest, you caused a wound about 8-9cm long to the right lower portion of his sternum. He was attended by paramedics at the scene, then taken by ambulance to the Alfred Hospital where upon arrival he was rushed to the operating theatre for emergency surgery. The knife had penetrated about 5-10cm into his chest, cutting an artery and entering his right lung. He lost about 4 ½ litres of blood and could have died as a result.
Consistently with the jury verdicts, I proceed on the basis that you did not intend to kill either your wife or Mark Olczak.
I referred earlier to the fact that I reject your account of events. It contained a number of deliberate lies. The significant lies were the following:
(1)On your account of events, you brought the knife to Werribee that day because you wished to eat an apple, and you did eat that apple sitting in the gutter outside the house. You said that you then put the peel down the stormwater drain and put the knife in your pocket. I find that this was a deliberate lie and that you brought the knife to the house that day intending to use it, at the least, to threaten your wife if she was not prepared to accede to your desire to return home.
(2)You maintained that the initial attack was caused by your wife commencing to swear at you and to hit you and that all you did was to attempt to ward her off, taking the knife out of your pocket only because you felt it pricking you in the leg. I find that this was a deliberate lie.
(3)You maintained that the stab wound to Mark Olczak was caused when Mr Dodsley struck your elbow with a plank of wood which then caused your hand holding the knife to move forward and stab him in the stomach. I find that this was a deliberate lie and an attempt to falsely characterise the stabbing of Mark Olczak as an accident caused by the entirely innocent Allan Dodsley.
(4)You denied attempting to stab your wife, thrusting the knife through the security door, and breaking the bedroom window at the front of the house. You maintained that either your wife, or people acting in collaboration with her, had caused the injury to her finger, damaged the door, and broke the front window in an attempt to construct what you described as a “set up”. Your denials were lies and your allegations of a “set up” false.
I have described the events which occurred. I have set out the lies which you told in an effort to exculpate yourself. I find that you acted as you did that day motivated by anger at your wife. You attacked her as a result of that anger. You attacked Mark Olczak because he stood between you and the object of your fury which was your wife. Had it not been for what can only be described as the heroism of Mark Olczak and Allan Dodsley the outcome on that day could have been even more tragic.
You were born in Italy in March 1952. You spent much of your childhood in Australia. Your upbringing was unremarkable. Your father was often absent and you report him as being at times violent towards your mother. You had four siblings. You completed an apprenticeship and worked as a panel beater until recent years. You have been married twice. Your two children are from your second marriage to Doris Fedele. You suffer from chronic back pain and Hepatitis B.
There is a family history of early onset dementia and there were indications of possible mental problems in your prisoner health summary, which was tendered on the plea. These issues had been explored by Dr Simon Kennedy, a clinical and forensic psychologist, and Mr James Drury, a clinical neuropsychologist, at the request of your solicitors. Reports from them were tendered on the plea. As a result of continuing concerns which I had, I ordered a report by a psychiatrist at the Victorian Institute of Forensic Mental Health. That report by Dr Kate Roberts relevantly concludes that there is nothing to indicate that you suffer from mental illness, that there is mild cognitive impairment which is likely to be attributable to chronic hepatic cirrhosis caused by Hepatitis B, and that you have limited insight into your offending or the impact of your behaviour on others. Her report indicates that you still blame your wife for the incident and harbour negative feelings towards her.
On the plea victim impact statements were tendered from Doris Fedele, Mark Olczak, Natalie Fedele, Steven Fedele, Allan Dodsley and Joanne Dodsley and each of them also gave evidence.
The effect of your conduct that day has been far reaching and most detrimental.
Your wife has suffered not just physical pain but serious emotional and psychological damage as well. Perhaps even worse, you have destroyed her sense of security and safety. She remains convinced you will harm her and the children as soon as you are released. She suffers from post-traumatic stress disorder which, together with her physical injury, led to her giving up paid work.
The effect of your attacks that day on your children, Natalie and Steven, has been devastating. Your violence has robbed them of their youth.
I described Mark Olczak and Allan Dodsley as heroes. There was no hyperbole in that description. They risked their own lives that day to save others. Mark Olczak very nearly lost his life, and in the witness box he showed the extensive physical scarring which he now bears. Both of them suffered, and continue to suffer, fear, stress and anxiety.
Joanne Dodsley, too, has suffered stress and emotional trauma as a consequence of the events of that day.
One issue which permeates the victim impact statements is fear of another attack by you upon your release.
On your behalf your counsel relied upon the fact that you have no prior convictions. He submitted that you were a man who had always worked hard and had supported your family, but who had then lost everything; your home, your work and your family. He also relied upon your health problems, and in particular your liver condition. Prison will be more burdensome for you because of your health problems. I take all those matters into account in your favour.
On behalf of the prosecution it was submitted that the appropriate range was a total effective sentence of 9 to 11 years’ imprisonment with a non-parole period of 6 to 8 years. Counsel for the prosecution did not address the specifics of cumulation and concurrency.[2]
[2]I was referred to Ludeman & Ors v The Queen [2010] VSCA 333.
The lies which you have told, your attempts to blame others, in particular your wife and Mr Dodsley, and the psychological and psychiatric reports, reveal an absence of remorse on your part. This absence of remorse must play a part in the fear of a further attack when you are released which is held by your family. There is in my view a need for specific deterrence in this case. I cannot proceed on the basis that there are good prospects for your rehabilitation.
These two offences are very serious instances of the crime of intentionally causing serious injury. They are very serious because a knife was used and because there was an element of premeditation, in that you brought the knife to the house that day intending to use it, at the least, to threaten your wife if she would not accede to your wishes. The injuries suffered by Mr Olczak were life threatening. You resorted to shocking violence in response to domestic problems. That violence was directed at your wife. It also involved your own children and numerous other innocent people. You terrorised your family, and were eventually chasing people down a suburban street in the day time armed with a knife. Your attack only ceased when you were physically restrained by Mr Dodsley. General deterrence is very important in this case.
Because of your conviction and sentence on the count of intentionally causing serious injury to Mark Olczak, when I come to sentence you on the count of intentionally causing serious injury to Doris Fedele, I must do so on the basis that you are a serious violent offender.[3]
[3]Under s 6B of the Sentencing Act 1991 (“the Act”) a serious violent offender is someone who has been convicted of a serious violent offence and sentenced to a term of imprisonment. A ‘qualifying’ offence may arise on the same presentment or indictment as the offence falling for sentence: R v Cowburn (1994) 74 A Crim R 385. Commonly, sentences are imposed in the order in which the counts appear on the initiating process, but that is not necessarily the case: See Curtis v R [2007] NSWCCA 11 and R v Johnson [2004] NSWCCA 140. Here, the most appropriate course seems to me to be to sentence first on the count concerning Mark Olczak (count 5) as that offence was committed first in time and that offence was the subject of the first jury verdict; which means the offender is a serious violent offender for the purposes of sentence on the count concerning Doris Fedele (count 2). This course was the one which was submitted to be appropriate by counsel for the offender.
Because you are a serious violent offender, I must regard the protection of the community as the principal purpose for which sentence is imposed on that count.[4] In order to achieve that, I may impose a sentence longer than is proportionate to the gravity of the offence.[5] I have not been asked to take that course here, and I do not do so.
[4]Section 6D(a) of the Act.
[5]Section 6D(b) of the Act.
Because on the count of intentionally causing serious injury to Doris Fedele I am sentencing you as a serious violent offender, the legislation provides that the term of imprisonment imposed must be cumulative unless otherwise directed.[6] In considering whether to otherwise direct I must take into account the principle of totality, the overlap in the offences, and the avoidance of a crushing sentence; but I must do so mindful of the need not to compromise the legislative object of the section.[7]
[6]Section 6E of the Act.
[7]EDM v The Queen [2010] VSCA 308, at [23]-[26] and R v Mantini [1998] 3 VR 340, 347-8.
I have reviewed the published sentencing statistics for this offence and recent appellate decisions.[8] When reviewing that material in this context it is very important to be mindful of the fact that the great majority of sentences are imposed after guilty pleas. I have reached the conclusion that the prosecution range is too low.
[8]The most recently published statistics are in “Sentencing trends in higher courts of Victoria 2004-5 to 2008-09”, March 2010, No 93, “Causing serious injury intentionally”. I reviewed all Court of Appeal sentencing judgments on this offence since 1 January 2008 (including El Tahir v The Queen [2011] VSCA 46 handed down on 4/3/11). The range of sentences is very wide, reflecting the wide diversity of circumstances in which the offence occurs. I also had regard to R v Monardo [2005] VSCA 115. I reviewed these decisions mindful of the fact that sentencing cases are without precedential value, save insofar as they expound sentencing principles, as each case is unique and dependent on its own circumstances: Kane v R [2010] VSCA 213 at [25].
For the offence of intentionally causing serious injury to Mark Olczak (count 5) I sentence you to 8 years’ imprisonment.
For the offence of intentionally causing serious injury to Doris Fedele (count 2) I sentence you to 8 years’ imprisonment.
In the circumstances here, particularly the overlap of the two offences, I have concluded that it is appropriate to direct some concurrency. I direct that 4 years of the sentence on the count of intentionally causing serious injury to Doris Fedele be served concurrently with the other sentence.
The total effective sentence is accordingly 12 years. I direct that you serve a period of 9 years before becoming eligible for parole.[9]
[9]Earlier eligibility is unwarranted given the absence of remorse and the absence of good prospects of rehabilitation. The maximum period on parole, being three years, is still a significant period of time.
I declare that the period of pre-sentence detention is 578 days and I direct under s 6F of the Act that on the count of intentionally causing serious injury to Doris Fedele (count 2) you are sentenced as a serious violent offender.
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