R v Caruso
[2010] VSC 354
•6 September 2010
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
No. 1632 of 2009
| THE QUEEN |
| v |
| PETER CARUSO |
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JUDGE: | KING J | |
WHERE HELD: | Melbourne | |
DATES OF HEARING: | 19, 20, 21, 22, 23, 27, 28, 29, 30 April 3, 4, 6, 10, 11, 12, 13, 14, 17 May 2010 | |
DATE OF SENTENCE: | 6 September 2010 | |
CASE MAY BE CITED AS: | R v Caruso | |
MEDIUM NEUTRAL CITATION: | [2010] VSC 354 | |
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Murder - Age of Prisoner 76 - no prior convictions.
Sentenced: 18 years’ imprisonment with a minimum of 13 years’ imprisonment.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr C Beale | Office of Public Prosecution |
| For the Accused | Mr P Dunn QC | Galbally Rolfe |
HER HONOUR:
Peter Caruso you were convicted by a jury in the Supreme Court of the murdering your wife on 1 July 2008, you had pleaded not guilty to that charge and gave evidence before that jury.
At the time of the murder you were aged 74, having been born in Sicily on 12 October 1933, moving to Melbourne when you were 19, and have lived here ever since. You are currently aged 76 and you will turn 77 in October of this year.
Your wife, Rosa Caruso, the deceased, was 72 years of age at the time of her death. She had been born in Italy on 18 January 1936, and had also moved to Melbourne in 1956 and lived here ever since. You and Rosa married in 1958 and in 1961 you had your twin boys, Santo and Joseph, who are currently 46 years of age.
The premises where you lived with your wife was 5 Sunny Rise, Templestowe, a place that you and Rosa had built, approximately 21 years earlier. You had been a fruit shop proprietor in East Brunswick, for most of your working life and your wife assisted in that, until your retirement in 1974.
The Crown case in relation to this charge of murder, of which you were convicted, was a circumstantial case. The first knowledge relating to your wife’s death was a phone call you made, to your son Santo’s partner, Patricia Braumueller, during which call, you told her that your house had been robbed and that you wife Rosa, was on the floor, possibly dead. A minute after that call, at approximately 6.29pm, you called Triple 000. You told the operator, that you had come home from the shops to find the house had been robbed, and your wife badly injured. You mentioned in that phone call, observing an oil leak in the front of your house.
The ambulance service called you back at the house and gave you first aid instructions. All of those calls, which were recorded, became important evidence. Two police officers arrived, at approximately 6.42pm, that evening, being officers Shuttleworth and Vickers. Vickers went into the premises and observed your wife lying on the floor. Her head was covered, wrapped around with a tablecloth and a bloodied cordless phone, apparently lay beneath her body, as it was subsequently discovered. You were following into the house behind Shuttleworth, but you only went a very short distance, before she escorted you back out, where you once again pointed out to her, the oil leak on the ground in front of your premises.
The house had a number of rooms. It was a relatively large house and in most of those rooms, drawers and cupboard doors had been opened, and in some cases clothing had been placed on the floor. You indicated to the police, in your early discussions with them, that you thought some jewellery may have been taken.
It was confirmed, by the ambulance officers who arrived, that you wife was dead and you were also examined, at the request of the police, who were concerned about your health. Your physical condition was assessed as healthy. The ambulance officer, from the tests and observations she made, did not believe that you were suffering from shock at that point.
A search of the premises discovered, that there had been no forcible entry to the premises, and in relation to the drawers and cupboards that had been opened, the contents of all of those items, appeared to be left in a neat and tidy state. There were no unidentified fingerprints found, a police dog unit attended, and found nothing in the way of an intruder. Upon a search of the premises, police discovered a hatchet in a cupboard, and bloodstained gray trousers and a long-sleeved windcheater in the same plastic bag, in the garage. They also located within the garage area, a pair of dark shoes, a quantity of jewellery in a plastic bag, and a bottle of engine oil.
Investigators, using leuco-crystal violet, enhanced bloodied shoe prints, which led only from the vicinity of the deceased, to the hand-basin in the bathroom, adjacent to the room where the deceased was. The shoe prints did not lead out of the bathroom and there were, no other bloodied shoe prints or footprints in the house. As you left the premises, you pointed out the oil stain again, to the police. The clothing, you were wearing at the house, was taken by the police that night, at the Doncaster Police Station. There was no blood staining, whatsoever, on the trousers, belt, jacket, socks or pullover, but possible blood staining on the heel of the left shoe. There was massive bleeding around your wife’s body, located in the family room of the house.
You made a statement, in the early hours of 2 July, at the police station stating, amongst many other things, that you noticed an oil stain on the driveway as you returned, which you were sure had not been there previously. You also told the police that, after you had discovered your wife in a pool of blood on the floor and telephoned for help, you had walked around the house and discovered, that some of your wife’s jewellery was missing, from the dressing table. You told the police that you had changed your shoes when you got back from the shops, as was your habit. That you put on shoes, with no laces, to walk around inside the house and when the police arrived, you changed back into the shoes which you had worn to the shop. There was evidence that you told the police, that you had cradled your wife Rosa, as she lay dying, although this was disputed by you, but you did agree, that you had contact with your wife as she lay on the ground, bleeding profusely.
Later in the day, at approximately 6.44, on 2 July you were formally interviewed, and you told the police, about observing a black Corolla with no one in it, parked in the court, as you went to the shops, and that you noticed the oil stain when you returned. You said, you found your wife on the floor, blood was everywhere, but she was still alive. You stated, you touched her, but only with your hands, to obtain a pulse. You told the police, that you got a tablecloth from the garage and put it over your wife’s head, prior to calling Triple 000.
In relation to the clothing that the police found in the garage, the windcheater had blood-spray patterning on it, consistent with a person raising and lowering their arm, including sprays on the back of the windcheater, that would be flicked off as a weapon was pulled back, before then coming through in a forward arch. There were spatter stains on the shoes. There were transfer, projected and spatter stains on the trousers on both legs. The clothing in the garage was clearly your clothing and that was not in issue in the trial, only whether it had been worn by you, when your wife was killed.
CCTV footage was obtained which showed no vehicles entering or leaving Sunny Rise during the relevant time. Further CCTV showed your progress at the supermarket and at the shopping centre, including being at Flaky Jacks Fish and Chip shop, where you are observed to be rubbing the back of both of your hands.
The oil in the driveway, was discovered to have been consistent with the oil located in your garage, and you subsequently told the police that you were mistaken about the oil not having been there prior to going to the shops. It was in fact, from you, filling up the ride on motor mower.
The slip-on shoes located in the garage with blood-staining on the surface, corresponded with the shoe prints found in the premises, they did not correspond with the shoes that you were wearing at the police station.
Various witnesses were called who were neighbours in the area, to give evidence of their being no activity of persons in the area, or no observations of a black Corolla, or strangers on that day, and more particularly at the relevant times.
Rosa Caruso had been killed by extensive depressed cranial fractures which were the result of multiple blows, from a sharp implement. An examination of the scalp disclosed, approximately 36 incised injuries. They were found by the pathologist, to be consistent with a hatchet or similar weapon.
The police case was that you inflicted all of those injuries upon Rosa Caruso, changed your clothes, cleaned yourself up, left and went to the shopping centre to create an alibi and an opportunity for you to return home and discover the body of Rosa Caruso. This was challenged by you, and you gave evidence to the effect that at no stage did you cause any harm to your wife, and that when you came home from doing the shopping, you noticed the garage door was open, which your wife would never have normally opened, as she was quite security conscious. You said that you went into the premises and, upon walking in, you discovered your wife’s body as indicated, you then rang your daughter-in-law and Triple 000, but you could not bear to look at Rosa, or to touch her, the only thing you did, was to see if she had a pulse, you then wrapped the tablecloth around her head, because you could not bear to see how she looked. You swore, that at no time did you inflict one blow upon Rosa Caruso, that you were not guilty.
The jury convicted you of the count of murder, thus, accepting that the Crown had proved beyond reasonable doubt, that you were the person who inflicted the blows upon your wife, on 1 July.
You and your wife were about to celebrate 50 years of marriage, there was no evidence before the court of animosity, violence or even disagreement, between you and your wife, prior to this evening. The crime of which you have been convicted remains entirely motiveless. The Crown could not, and did not, put forward to the jury, any motive for your commission of this offence. I have no information, that would assist me in determining, why you decided to kill your wife and particularly in this quite gruesome manner.
There are no victim impact statements in relation to this matter, at least partly, I would presume, because your children are to a degree conflicted. Santo, to whom you appeared to have had a close relationship, having worked with him over many years since your retirement, must be in some serious quandary. You are estranged from your son Joseph, who lives a very solitary life and he declined the offer, to submit any victim impact statement. Santo declined, in all likelihood because of his torn, conflicted nature.
There is no doubt, however, that this will be exceedingly difficult for both of your children. They have lost their mother, in horrific circumstances and, in respect of Santo, he has also lost his father, a person with whom he had regular contact. I am unaware of whether he has been to visit you in prison, since you have been convicted, but irrespective of whether he continues to support you, he has in all reality lost the father that he had.
Your counsel did a very short plea on the basis, quite correctly, that there was little he could say about the offence, with you maintaining that you are not guilty. There was little he could say about your life except that you are 76 years of age, shortly to turn 77. You have no prior convictions and you have never been in trouble with the law. You have been a decent, hardworking man, your entire life. This offence is totally out of character for you and for the demonstrated relationship that you had with your wife.
The point made by your counsel in relation to sentence, is that in relation to this offence, you are highly likely to die whilst incarcerated and he submits, that your age of 76 years is a relevant and quite significant factor in the sentencing task that I have to perform. I agree[1]. It is clear that the non parole period imposed is going to represent a very substantial portion of your remaining life, if not the whole of your life that remains, making it both a significant and a relevant factor. But, of course, it is not and cannot be the sole factor. As the court made clear in R v Bazeley whilst your age is a matter that may be of real significance, it cannot justify an inappropriate sentence, nor should I approach this on the basis that I have to provide some guarantee that there must be a chance or opportunity that you may be released in the future. The court in Bazeley referred to a passage from the decision of R v Power[2]
The intention of the legislature in providing for the fixing of minimum terms is to provide for mitigation of the punishment of the prisoner in favour of his rehabilitation through conditional freedom, when appropriate, once the prisoner has served the minimum time that a judge determines justice requires that he must serve having regard to all the circumstances of his offence.
[1]R v Bazeley (1993) 65 A Crim R 154; R v Babic [2010] VSCA 198
[2]R v Bugmy (1990) 169 CLR 525 at 526
The murder of your wife was brutal and horrific, and there are many factors to sentencing which must also play a significant part, such as general deterrence, just and appropriate punishment, and whilst, in my view, there is no need for specific deterrence, or to examine the aspect of rehabilitation, due to the fact as I have already mentioned your age , those other matters cannot be ignored.
The sentence imposed by this court may be viewed by many as merciful, but I have to take into account your current age and the likelihood that the sentence I impose means that you may well die in prison irrespective of the term.
In light of all the factors, I direct that you are sentenced on the count of murder, to a term of imprisonment of 18 years, I further direct that you are to serve a minimum of 13 years before becoming eligible for parole.
I declare that you have spent 128 days including today in pre sentence detention in relation to this charge and such is to be noted in the records of the court.
Disposal Order is granted.
Application for retention of 464 ZFB(1) forensic sample is granted.
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CERTIFICATE
I certify that this and the 7 preceding pages are a true copy of the reasons for Sentence of King J of the Supreme Court of Victoria delivered on 6 September 2010.
DATED this 6th day of September 2010.
Associate to The Honourable Justice King
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