Salvatore Fedele v The Queen
[2017] VSCA 363
•8 December 2017
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2017 0239
| SALVATORE FEDELE | Applicant |
| v | |
| THE QUEEN | Respondent |
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| 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) |
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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.
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| 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 that I apply to the Court of Appeal for leave to appeal against my sentence on the ground:
1. The sentencing discretion should to be reopened in light of fresh evidence that demonstrates the true significance of facts in existence at the time of sentence. The applicant is diagnosed with early onset frontotemporal dementia. It is highly probable that at the time of sentencing the applicant was in the early stages of a frontotemporal dementia.
As we have said, the applicant is incapable of understanding that he is serving a sentence of imprisonment. Less still is he capable of giving instructions personally that he wishes to appeal against the sentence.
In light of the applicant’s apparent incapacity, on 30 November 2017 the Court convened a mention so that issues concerning the applicant’s capacity to give instructions, and, correspondingly, the validity of the Notice, might be ventilated. Among other things, in the course of that mention the Court suggested that the solicitors for the applicant — Victoria Legal Aid (‘VLA’) acts for him — might consider the making of an application to the Victorian Civil and Administrative Tribunal (‘VCAT’) for guardianship.
In the result, on 6 December 2017, VCAT made a number of orders in its Guardianship jurisdiction, including an order appointing the applicant’s sister, Angela Paglia, administrator of the applicant’s estate, ‘with all the powers and duties conferred by Part 5 Divisions 3 and 3A of the Guardianship and Administration Act 1986 limited to providing instructions for Victoria Legal Aid to act on behalf of the [applicant] in his criminal law proceedings in the Victorian Supreme Court, Court of Appeal’.
Furthermore, by an affidavit sworn 6 December 2017, Angela Paglia swore:
I confirm my instructions to Victoria Legal Aid to appeal [the applicant’s] sentence on the basis that he is now diagnosed with dementia and, I understand, was likely in the early stages of dementia at the time that he was sentenced.
In light of the orders made by VCAT, and the contents of Ms Paglia’s affidavit, we are of the view that the application for leave to appeal now is properly before us.
Filed with the initial Notice, was an Application for Extension of Time to File and Serve a Notice of Appeal (‘the Application’), dated 17 November 2017,[4] which in part recites:
The reasons [the applicant] failed to file a notice within the prescribed time and the ground(s) upon which [he makes] this application are set out in the affidavits of Angela Paglia dated 31 October 2017 and of Angelique Renieris dated 17 November 2017.
[4]Pursuant to s 313 of the Criminal Procedure Act 2009, the Deputy Registrar granted an extension of time on 20 November 2017.
Supporting affidavits
Angela Paglia is, as we have said, the applicant’s sister. In an affidavit sworn 31 October 2017, she deposed to the following (among other things):
6. In 2015, I believe it was around mid-August, I contacted Justice Health and advised that I had power of attorney regarding Sam [the applicant]. I received information regarding a surgical procedure that Sam underwent to remove a skin growth. I was advised that the surgery went well however Sam did not comprehend what was done to him. I was advised that Sam would undergo brain scans to confirm dementia, which I was not surprised to hear.
7. Sadly, the dementia has progressed very fast and Sam is now nonverbal and is receiving care in prison. Prison authorities are now involving me with every aspect of Sam’s care. Sam is also seen by Professor Andrew Carroll, to whom I am very grateful, monthly.
8. There is a widespread history of family dementia in my family, specifically frontotemporal dementia type 17. My family has been subject to genetic research at the Royal Melbourne Hospital. The disease has claimed the lives of many members of my family …
Angelique Renieris, in an affidavit dated 17 November 2017, states that she is ‘a barrister and solicitor’ employed by VLA, and that she acts for the applicant. Save where otherwise specified, she made her affidavit ‘based on the contents of the applicant’s file and electronic records held at VLA’. Her affidavit makes clear that the applicant does not know he is in prison; that he has little language capacity left; that his ability to communicate is extremely limited; and that he is unable to provide any legal instructions verbally.Relevant parts of the affidavit are as follows:[5]
[5]Emphasis added.
2. In October of 2010 the applicant was arraigned in the Supreme Court on an indictment charging him with two counts of attempted murder, two counts of intentionally causing serious injury, and two counts of recklessly causing serious injury. He pleaded not guilty to all counts. Following two trials, he was found not guilty on the charges of attempted murder and guilty on both counts of intentionally causing serious injury. The applicant was represented by VLA in these proceedings.
3. Prior to any trial proceedings, the applicant’s solicitor sought psychological assessments of the applicant. In a letter dated 9 November 2009 and addressed to Dr Simon Kennedy, Psychologist, the applicant’s solicitor commissioned a psychological assessment and report, citing concerns in relation to the applicant’s mental and physical health. The applicant’s case was next listed for committal mention hearing on 3 December 2009.
4. In a letter dated 1 December 2009 and addressed to Mr James Drury, Neuropsychologist, the applicant’s solicitor commissioned a neuropsychological assessment and report, citing concerns raised by Dr Kennedy in regards to the applicant’s mental state and his recommendation that the applicant be assessed by a neuropsychologist.
5. Following a plea hearing on 17 December 2010 and 4 March 2011, the applicant was sentenced in the Supreme Court on 9 March 2011 to a total effective sentence of 12 years’ imprisonment with a non-parole period of nine years. The applicant remains in custody and is currently located in the St John’s Unit at Port Phillip Prison.
6. In September 2017 Professor Andrew Carroll, Consultant Forensic Psychiatrist, Forensicare, contacted VLA in relation to the applicant. Professor Carroll advised that he had treated the applicant for the past 18 months at the Hopkins Correctional Centre. The applicant was diagnosed both clinically and genetically with frontotemporal dementia type 17 and his case was known to Royal Melbourne Hospital Genetics. Professor Carroll described the ‘egregious’ nature of the situation. He described the applicant as having ‘high’ care needs and requiring assertive support for basic activities of daily living. Professor Carroll stated that the applicant does not know that he is in prison and has little language capacity left and was in a nonverbal state.
7. On 15 November 2017 the applicant’s sister Mrs Angel Paglia advised me that on Friday 10 November 2017 the applicant had been transferred from the Hopkins Correctional Centre to a hospital unit at Port Phillip Prison. Mrs Paglia was advised that the applicant was transferred because of various concerns held by prison staff at Hopkins Correctional Centre and their ability to provide sufficient care for the applicant. Mrs Paglia was advised by prison authorities that the applicant’s condition had worsened, his incontinence had worsened and he was increasingly showing signs of frustration and confusion. Mrs Paglia was advised that prison staff were worried about the applicant’s safety and the possibility of other prisoners harming him.
8. The applicant’s matter was ultimately referred to the VLA Appeals Team. On 26 September 2017 I conducted a video conference with the applicant. The applicant was assisted by Corrections case managers. The applicant was unable to provide any verbal instructions to me and, while he was able to perform some physical gestures, his ability to communicate was extremely limited.
9. On 3 October 2017 Jeremy Cass, Program Manager of the Appeals Team, and I conferenced with the applicant’s sister, Mrs Angela Paglia and her husband Mr Alf Paglia. They both hold enduring power of attorney in respect of the applicant. They both indicated deep and ongoing concerns in regards to the applicant’s state of health and continued imprisonment.
10. On 11 October 2017 legal aid funding was approved in respect of an appeal against sentence and to obtain an expert neuropsychiatric assessment and report. On 17 October 2017, I commissioned Professor Dennis Velakoulis, Neuropsychiatrist and Director of the Neuropsychiatry Unit at the Royal Melbourne Hospital, to conduct an assessment and provide a report in relation to the applicant.
11. Professor Velakoulis’ report was provided to me on 8 November 2017. ...
Professor Velakoulis’ report
Professor Dennis Velakoulis, Consultant Neuropsychiatrist, provided a report dated 5 November 2017. Among other things, he had available to him:
· a psychological report by Dr Simon Kennedy, dated 17 November 2009;
· a Forensicare psychiatric report by Dr Kate Roberts, dated 27 January 2011;
· a neuropsychological report by Mr James Drury, dated 5 February 2010; and
· a Prisoner Health Summary, dated 22 November 2010.
Professor Velakoulis described Dr Kennedy’s assessment of the applicant, and noted the following concerning his report:[6]
On the basis of this limited assessment, Dr Kennedy concluded that Mr Fedele’s memory was poor, although his memory for long-term events was relatively sound. His thought processes were confused, his speech was rambling and he got off track easily, at times being incoherent. His concentration was poor. His comprehension was poor. There was no formal cognitive evaluation. Mr Fedele’s behaviour was dependent and child-like. It was recommended that he undergo cognitive evaluation.
[6]Emphasis added to this and passages following.
With respect to Mr Drury’s report, Professor Velakoulis noted the following:
• Mr Drury identified that Mr Fedele had deficits in the following areas: Social judgment and awareness, attention and concentration, poor attention to visual detail, poor visuospatial integration and planning, below average transcription speed, below average visuospatial recent memory. He retained cognitive functioning in arithmetic, spatial reasoning, auditory immediate recall, average spatial immediate recall, auditory verbal recent memory and delayed recall and verbal and new learning ability.
• Mr Drury comments that Mr Fedele had responded appropriately though slowly through the course of the interview. On the balance of probability, he concluded that Mr Fedele did not demonstrate sufficient evidence of a dementing process. Mr Drury noted that Mr Fedele had average to low-average recall, recent memory and new learning. This relatively intact memory would not account for his lapse in memory in relationship to the alleged stabbing events.
• Mr Drury felt a dementia diagnosis was unlikely on the basis that Mr Fedele demonstrated average mental arithmetic, high average spatial reasoning, efficient planning, appropriate self-monitoring, average processing speed, average auditory and immediate recall and average auditory verbal recent memory.
As to Dr Kate Roberts’ report, Professor Velakoulis said:
On the basis of the neuropsychological testing Dr Roberts concluded a dementing process had been ruled out.
Professor Velakoulis also set out the substance of several entries in the Prison Health Summary. He noted the following (among other entries):
This summary lists the medical history including hepatitis B, chronic low back pain, depression and the family history of early-onset dementia. There was a history of abdominal ascites, tapped to on 9 September 2009.
20th August 2009: A psychiatry registrar stated that Mr Fedele presented with significant cognitive impairment.
…
7th September 2009: a brain scan was reported as suggesting a neurodegenerative process with a reduction in activity. It is most likely in keeping with Alzheimer's pathology. …
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17th September 2009: A medical officer reported that Mr Fedele was exhibiting acute mental phenomena, possibly secondary to hepatic encephalopathy. Mr Fedele had little insight into his situation.
20th September 2009: A psychiatrist indicated that Mr Fedele was not displaying psychiatric phenomena and required no follow-up.
11th October 2009: On admission to the Melbourne Assessment Prison the admitting nurse recorded that Mr Fedele was uncommunicative, vague and possibly thought disordered.
1st December 2009: Mr Fedele was sent to St Vincent’s Neurology Clinic. It was reported that he had mild baseline cognitive impairment probably secondary to chronic liver disease.
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August 2010: Mr Fedele alleged that the prisoners were bullying him and threaten [sic.] self-harm. He was moved to a new unit and his mental state improved.
8th November 2010: Mr Fedele told the medical officer he was not sure why he was at the clinic. He expressed the wish to have no more tests for his liver. The medical officer discussed the possibility of a liver cancer with Mr Fedele and advised him to undertake further liver function testing.
Professor Velakoulis summed up the information he was provided by prison staff as follows:
Mr Fedele is accommodated in a very regimented and stable routine. He requires daily prompting for hygiene. Staff apply toothpaste on a toothbrush but he knows how to clean his teeth. He sleeps in his clothes. He requires assistance by another prisoner with meals and cleanliness of his cell. He acts in an appropriate manner towards staff. He has minimal verbal and cognitive skills. He communicates with staff by sign language and will parrot or mimic conversations.
Staff completed a behavioural assessment questionnaire (BATCH) which provides an observational assessment of [a] patient’s cognition when they are unable to participate in formal testing. On the basis of this assessment, Mr Fedele has significant problems with orientation, ability to self-care, difficulty with initiation and volition, difficulty with awareness of his environment, unable to manage affairs, very poor problem solving, poor memory, poor language and poor praxis.
Asked to provide his opinion as to whether dementia was ‘in existence or likely in existence at the time of sentence or before, even at the very early stages’, Professor Velakoulis stated:
Given the information I have available to me, it is highly probable that at the time of sentencing, Mr Fedele was in the early stages of a frontotemporal dementia. Mr Fedele’s personality and behaviour had been noted to change from the mid 2000’s, he was noted by several professionals to have cognitive impairment, the neuropsychological testing was consistent with fronto temporal changes and he had imaging suggestive of a neurodegenerative disorder (acknowledging though that I do not have the imaging results available to me).
Professor Velakoulis proffered several reasons as to why dementia might not have been diagnosed around the time of sentence:
a. The family history was one of Alzheimer’s disease and clinicians may have focussed on whether Mr Fedele exhibited cognitive features of Alzheimer’s disease.
b. Having excluded Alzheimer’s disease, clinicians attributed the identified cognitive impairment to hepatic encephalopathy.
c. The diagnosis of frontotemporal dementia in younger people (under the age of 60) is often missed in the early stages due to the prominent behavioural and personality symptoms. These symptoms in a middle aged person are often attributed to other factors e.g. stress, alcohol, depression, anxiety. It is not until the patient begins to exhibit cognitive problems such as forgetfulness or impaired problem solving that a neurological cause is sought.
Further, Professor Velakoulis stated:
Mr Fedele is now at about eight years into his illness. The average lifespan from diagnosis to death in patients with frontotemporal dementia is 8 to 10 years. His prognosis is poor but I cannot provide an exact estimate of lifespan.
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We currently have no treatments for frontotemporal dementia.
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Most patients with frontotemporal dementia have limited insight or judgment into their current situation. I understand that Mr Fedele is now nonverbal which is consistent with a decline in his dementia. The burden of imprisonment would relate to the fact that he is unaware he is in prison, he would be unaware of why he is in prison and would require significant structure and routine in order to go about his day-to-day affairs.
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On the basis of the information I have, Mr Fedele would require supported accommodation in a dementia-specific facility.
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… On the information available to me, it would appear that Mr Fedele had always been a very good family man, with no history of violence, aggression or anger towards his wife or family. From the mid 2000’s onwards he exhibited personality, behavioural and functional decline suggestive of a developing frontotemporal dementia. It is probable that the frontotemporal dementia contributed to his inability to make appropriate judgements, to be disinhibited and impulsive. Such personality and behavioural changes would have contributed to his actions and offending at the time.
Submissions in support of the applications
The applicant submits that the diagnosis of, and description of the progression of, the applicant’s frontotemporal dementia contained in Professor Velakoulis’ report, ‘should be regarded as fresh evidence relating to events which have occurred since sentencing and which demonstrate the true significance of facts in existence at the time of sentencing’.
Very fairly, the respondent concedes that, having regard to the fresh evidence on which the applicant relies, the applicant ‘was likely in the early stages of frontotemporal dementia at the time he was sentenced’. Moreover, the respondent concedes that it is open to this Court to grant leave to appeal; allow the appeal; and resentence the applicant at least on the basis ‘that mercy is warranted, given that the applicant’s reduced life expectancy was unknown at the time of sentence’.
Discussion
As the foregoing demonstrates, this is a very unusual (if not unique) case.
Based on what was understood of the applicant’s mental condition at the time that he was sentenced on 9 March 2011, the sentence imposed by Whelan J was not properly open to criticism. Despite there having been some contemporaneous exploration of, and controversy concerning, the applicant’s mental condition, however, what was not appreciated at the time of sentence was that the applicant very probably was in the early stages of frontotemporal dementia. Professor Velakoulis’ evidence thus explains the true significance of a matter that had been in issue at the time of sentence.
We need not canvass in any detail the principles which guide the Court in determining whether to grant an extension of time within which to appeal,[7] or those that bear on fresh evidence,[8] given the respondent’s attitude.
[7]See Madafferi v The Queen [2017] VSCA 302, [11]; Chen v The Queen [2017] VSCA 335, [21]–[22].
[8]For example, R v Nguyen [2006] VSCA 184; Ramezanian v The Queen (2013) 37 VR 92.
The purposes of sentencing[9] include the punishment of, and specific deterrence of, an offender. The applicant does not know that he is being punished, so that the aim of specific deterrence is rendered nugatory. Sentencing also aims to protect the community from an offender, and to establish conditions to facilitate rehabilitation. Given the applicant’s present condition, the community needs no protection from him; and, self-evidently, he is beyond any meaningful rehabilitation. Moreover, the concept of general deterrence has little work to do in the case of a person labouring under the applicant’s mental incapacity. Indeed, as we have already observed, the respondent (very fairly) did not seek to resist the proposition that the evidence we have referred to is fresh evidence, the admission of which re-opens the sentencing discretion. In sentencing the applicant, Whelan J referred to the need for specific deterrence[10] and the importance of general deterrence.[11] As the respondent conceded, however, specific deterrence is of no relevance in sentencing the applicant today and, having regard to the applicant’s present state, general deterrence does not assume the significance it assumed when the applicant was originally sentenced.
[9]See Sentencing Act 1991, s 5(1).
[10]R v Fedele [2011] VSC 58, [34].
[11]Ibid [35].
In the circumstances that we have discussed, it is proper to make orders which will result in the appeal against sentence being allowed.
We have determined that we should impose a ‘straight’ sentence of imprisonment which will permit the applicant’s immediate release. Imposing a
non-parole period would be pointless, in light of the applicant’s history.[12] As Professor Velakoulis has made clear, the applicant presently requires ‘supported accommodation in a dementia-specific facility’.[12]See Sentencing Act 1991, s 11(1).
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