R v Fedele (Sentence) - [2011] VSC 58

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

No. S CR 0038 of 2010

THE QUEEN

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.…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Fedele (Sentence)

Details

AGLC: R v Fedele (Sentence) [2011] VSC 58
Case: [2011] VSC 58
Decision Date: 9 March 2011

CaseChat Overview and Summary

The defendant, Fedele, faced sentencing in the Supreme Court of Victoria following convictions on two counts of intentionally causing serious injury. The incidents involved attacks on two victims, with the second count indicating a particularly violent nature and the defendant being considered a serious violent offender in relation to it. The court was tasked with determining an appropriate sentence that reflected the gravity of the offences and the need for deterrence and protection of the community.

The primary legal issues centred around the appropriate sentencing principles to apply, particularly given the dual nature of the offences and the defendant's status as a serious violent offender. The court considered the principles of totality, proportionality, and deterrence, along with the need to provide adequate protection to the community. The court also had to decide on the extent of any partial concurrency in the sentences for the two offences.

The court, after a comprehensive assessment, concluded that the appropriate sentence should reflect the seriousness of the offences and the need to deter the defendant and others from similar conduct. The total effective sentence determined was 12 years, with a non-parole period of 9 years. This sentence was deemed sufficient to address the gravity of the crimes and the risk posed by the defendant to the community. The court also directed that there be partial concurrency in the sentences for the two counts, recognising the interconnectedness of the incidents.

Orders