Salvatore Fedele v The Queen - [2017] VSCA 363

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2017 0239

SALVATORE FEDELE	Applicant
v
THE QUEEN	Respondent

---

JUDGES:	PRIEST, BEACH and McLEISH JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	8 December 2017
DATE OF JUDGMENT:	8 December 2017
MEDIUM NEUTRAL CITATION:	[2017] VSCA 363
JUDGMENT APPEALED FROM:	R v Fedele [2011] VSC 58 (Whelan J)

---

CRIMINAL LAW – Appeal – Sentence – Fresh evidence – Early onset frontotemporal dementia – Undiagnosed at time of sentence – Offender now incapacitated and unaware of incarceration – Reduced life expectancy – Appeal allowed – Appellant resentenced so as to permit immediate release – R v Nguyen [2006] VSCA 184 applied.

---

APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr T Marsh with Mr J R Cass	Victoria Legal Aid
For the Respondent	Mr P Doyle	Mr J Cain, Solicitor for Public Prosecutions

PRIEST JA
BEACH JA
McLEISH JA:

Introduction

Salvatore Fedele — whom, for the sake of convenience, we shall refer to as ‘the applicant’ — has been incarcerated since August 2009. On 9 March 2011, Whelan J sentenced him to be imprisoned for 12 years, with a non-parole period of nine years.[1] The applicant does not know, however, that he is serving a sentence of imprisonment. He suffers from frontotemporal dementia.
[1]His earliest release date under that sentence is 9 July 2018.

Before the applicant became demented, on 9 August 2009, he stabbed his wife, Doris Fedele, and his daughter’s boyfriend, Mark Olczak. We need not recount the circumstances in detail. They are fully set out in the sentencing reasons of Whelan J.[2] It suffices to say that, without any justification, the applicant stabbed Mr Olczak in the chest — severing an artery and puncturing his right lung, those injuries being life-threatening — and his wife in her left little finger — severing both tendons that flex the finger, and one of the digital nerves. Following two trials, the applicant was found guilty of two counts of intentionally causing serious injury.[3]
[2]R v Fedele [2011] VSC 58, [7]–[19].
[3]Crimes Act 1958, s 16. The maximum penalty is 20 years’ imprisonment.

The applications in this Court

It may be inferred from the fact that leave was not sought to appeal against the sentence when it was imposed in 2011, that the applicant’s legal advisers at that time thought the sentence would not be amenable to successful challenge. On or about 17 November 2017, however, a Notice of Application for Leave to Appeal Against Sentence (‘the Notice’), ostensibly signed ‘by legal practitioner on behalf of applicant’, was filed in the Registry of this Court. It was in the following form:

To the Registrar of Criminal Appeals:
I, Salvatore Fedele am convicted of the offences of intentionally causing serious injury and I am a prisoner at Port Phillip Prison.
I WISH TO APPEAL to the Court of Appeal under section 278 of the Criminal Procedure Act 2009 against my sentence (particulars of which are set out below).
TAKE NOTICE…

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 Salvatore Fedele v The Queen

Details

AGLC: Salvatore Fedele v The Queen [2017] VSCA 363
Case: [2017] VSCA 363
Decision Date: 8 December 2017

CaseChat Overview and Summary

The appellant, Salvatore Fedele, sought leave to appeal against his sentence in the Court of Appeal, challenging the appropriateness of his punishment in light of new medical evidence regarding his health condition. At the time of sentencing, the appellant was not diagnosed with early onset frontotemporal dementia, a condition that has since rendered him incapacitated and unaware of his incarceration. The appeal centred on whether the initial sentence was unjust given the appellant's current medical state and reduced life expectancy.

The primary legal issue before the court was whether the fresh medical evidence concerning the appellant's condition constituted a significant change in circumstances that warranted reconsideration of his sentence. The court had to weigh the appellant's current incapacitated state against the principles of finality and consistency in sentencing. Furthermore, the court considered whether the appellant's reduced life expectancy and current incapacitation justified a re-evaluation of the original sentence to permit his immediate release.

In deciding the appeal, the court acknowledged the significant change in circumstances since the appellant's original sentencing. The court held that the fresh evidence regarding the appellant's frontotemporal dementia and his current incapacitated state constituted a substantial and compelling change in circumstances. The court found that the original sentence was manifestly inadequate given the appellant's current condition and reduced life expectancy. Applying the principles from R v Nguyen, the court allowed the appeal and resentenced the appellant so as to permit his immediate release. The court emphasised the need to balance the principles of justice and humanity in such cases, ultimately prioritising the appellant's current medical state and wellbeing.

The final orders of the court were that the appeal was allowed, the original sentence was quashed, and the appellant was resentenced to a term of imprisonment already served, with immediate release. This decision ensures that the appellant's current medical condition and incapacitated state are taken into account, reflecting a just and humane approach to sentencing in light of significant changes in circumstances.

Orders