DPP v Caratozzolo - [2009] VSC 305

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

No. 1426 of 2008

DIRECTOR OF PUBLIC PROSECUTIONS

JOHN CARATOZZOLO

---

JUDGE:	HARPER J
WHERE HELD:	MELBOURNE
DATE OF HEARING:	24 JULY 2009 (plea)
DATE OF SENTENCE:	29 JULY 2009
CASE MAY BE CITED AS:	DPP v CARATOZZOLO
MEDIUM NEUTRAL CITATION:	[2009] VSC 305

---

CRIMINAL LAW – Sentence – Murder (Crimes Act1958, s.3A) - Robbery – Participation in a group perpetrating robberies - Plea of guilty – Prior convictions – Remorse – Prospects of rehabilitation – Sentenced to 13 years’ imprisonment for murder – Two years’ imprisonment for one count of robbery to be served concurrently - Four years’ imprisonment for second count of robbery with two years to be served concurrently – Total effective sentence of 15 years – Non parole period of 10 years - Effect of s 6AAA of Sentencing Act 1991

---

APPEARANCES:	Counsel	Solicitors
For the Crown	Mr D. Trapnell SC	Craig Hyland, Solicitor for Public Prosecutions
For the Accused	Mr B. Lindner	Ann Valos Criminal Law

HIS HONOUR:

At 4.55 p.m. on 26 January last year, Dr Zhongjun Cao died of horrific head injuries. He had been murdered. You, John Caratozzolo, are one of his murderers.

Taken by itself, there is not one redeeming feature in the violence you inflicted on a kind, decent and intelligent man. It was not spontaneous. It was planned. And it was unprovoked. You wanted a mobile phone to replace your own unworkable one. You decided, some time earlier that day, to rob someone for that purpose, and to increase your pleasure by bashing your victim as well. Let me emphasise that. Your intent was not just to limit your violence to that which was necessary to obtain possession of a phone that did not belong to you. You were intent on inflicting as much gratuitous pain and suffering as would add to your pleasure. You had no weapons. But Dr Cao was a lone pedestrian. By contrast, you were in a group of seven.

If anything is cowardly, this is the perfect example. Dr Cao, the person you happened by chance to come across, was a complete stranger to you. He was of slight build. It was late at night. Darkness had fallen hours before. He was taken by surprise. All he wanted to do was to walk peacefully home. Then, without warning, some of your gang came from in front, others from behind. You subjected him to a period of absolute terror before he was fatally injured.

It was a totally unequal contest. There is no suggestion in the evidence that you first asked Dr Cao to hand over his mobile. The assault came first, the phone was extracted after that. But that was far from all. As the rest of the gang departed, you heaped savagery upon savagery. Dr Cao was down. MM had picked him up and dumped him so that he fell on his head. Indeed, as…

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 DPP v Caratozzolo

Details

AGLC: Director of Public Prosecutions v Caratozzolo [2009] VSC 305
Case: [2009] VSC 305
Decision Date: 29 July 2009

CaseChat Overview and Summary

In the case of DPP v Caratozzolo, the appellant was convicted for his participation in a series of robberies, one of which resulted in the death of a victim. The case was heard by the Court of Appeal, which was tasked with reviewing the sentence imposed by the trial judge. The primary legal issue before the court was whether the trial judge had erred in imposing a sentence that was manifestly inadequate. The appellant argued that the sentence should have been reduced, citing factors such as his plea of guilty, remorse, and prospects of rehabilitation. The Crown, on the other hand, contended that the sentence was appropriate given the gravity of the crimes committed.

The Court of Appeal examined the principles of sentencing for murder and robbery, as outlined in the Crimes Act 1958 and the Sentencing Act 1991. The court considered the appellant's criminal history, his participation in the robberies, and the circumstances surrounding the fatal incident. The judges noted the appellant's guilty plea, which resulted in a discount to his sentence, as well as his expression of remorse. However, the court also emphasised the need to consider the impact of the crimes on the victim and the community, as well as the importance of general deterrence. Ultimately, the court found that the sentence imposed by the trial judge was not manifestly inadequate, as it took into account the relevant aggravating and mitigating factors.

In reaching its decision, the Court of Appeal applied the principles of sentencing set out in relevant legislation and case law. The court acknowledged that the appellant's prior convictions and his participation in a series of robberies were significant aggravating factors. However, the court also recognised the mitigating factors of the appellant's guilty plea, remorse, and prospects of rehabilitation. The judges found that the sentence imposed by the trial judge was proportionate to the appellant's crimes and that it appropriately balanced the need for punishment, deterrence, and rehabilitation. As a result, the Court of Appeal dismissed the appellant's appeal against sentence.

In conclusion, the Court of Appeal upheld the sentence imposed by the trial judge in the case of DPP v Caratozzolo. The court found that the sentence of 13 years' imprisonment for murder, two years' imprisonment for one count of robbery to be served concurrently, and four years' imprisonment for a second count of robbery with two years to be served concurrently was appropriate, resulting in a total effective sentence of 15 years with a non-parole period of 10 years. The court emphasised the need to consider the gravity of the crimes committed, the impact on the victim and the community, and the principles of sentencing set out in relevant legislation.

Orders