R v Larizza (No 2) - [2004] SASC 412

SUPREME COURT OF SOUTH AUSTRALIA
(Criminal)
R v LARIZZA (NO 2)
Judgment of The Honourable Justice Gray
10 December 2004
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - HOMICIDE - MURDER - INTENTIONAL MURDER
Defendant charged with murder - found unfit to stand trial pursuant to section 269H Criminal Law Consolidation Act 1935 (SA) - objective elements of murder established - finding recorded pursuant to section 269MB(2) Criminal Law Consolidation Act - declared that defendant liable to supervision - order made committing defendant to detention.
Criminal Law Consolidation Act 1935 (SA), referred to.
R v Larizza [2004] SASC 360, considered.

R v LARIZZA (NO 2)
[2004] SASC 412
Criminal
GRAY J
The Issue

On 12 November 2004 this court recorded a finding that the defendant, Giuseppe Larizza, was mentally unfit to stand trial on a charge of murder.[1]
[1] R v Larizza [2004] SASC 360
The court has heard evidence and representations by the prosecution and the defence as to whether the findings should be recorded pursuant to section 269MB(2) of the Criminal Law Consolidation Act 1935 (SA) that the objective elements of the offence of murder are established. That section relevantly provides:
B(1)     If the court records a finding that the defendant is mentally unfit to stand trial, the court must hear evidence and representations put to the court by the prosecution and the defence relevant to the question whether a finding should be recorded under this section that the objective elements of the offence are established.
(2)     If the court is satisfied beyond reasonable doubt that the objective elements of the offence are established, the court must record a finding to that effect and declare the defendant to be liable to supervision under this Part; but otherwise the court must find the defendant not guilty of the offence and discharge the defendant.
(3)     On the trial of the objective elements of an offence under this section, the court is to exclude from consideration any question of whether the defendant's conduct is defensible.
Section 269O provides:
(1)     The court by which a defendant is declared to be liable to supervision under this Part may—
(a)     release the defendant unconditionally; or
(b)     make an order (a “supervision order”)—
(i)    committing the defendant to detention under this Part; or
(ii)releasing the defendant on licence on conditions decided by the court and specified in the licence.
(2)     If a court makes a supervision order, the court must fix a term (a “limiting term”) equivalent to the period of imprisonment or supervision (or the aggregate period of imprisonment and supervision) that would, in the court's opinion, have been appropriate if the defendant had been convicted of the offence of which the objective elements have been established.
(3)     At the end of the limiting term, a supervision order in force against the defendant under this Division lapses.
Note—
1      The court should fix a limiting term by reference to the sentence that would have been imposed if the defendant had…

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 Larizza (No 2)

Details

AGLC: R v Larizza (No 2) [2004] SASC 412
Case: [2004] SASC 412
Decision Date: 10 December 2004

CaseChat Overview and Summary

In the case of R v Larizza, the defendant was charged with the murder of Antonia Larizza. The defendant was found unfit to stand trial under section 269H of the Criminal Law Consolidation Act 1935 (SA). Despite the defendant's incapacity to stand trial, the court determined that the objective elements of murder had been established, leading to a declaration under section 269MB(2) of the same Act. The court subsequently ordered that the defendant be subject to supervision and committed to detention.

The legal issues before the court involved interpreting sections 269H and 269MB of the Criminal Law Consolidation Act and determining the appropriate supervisory measures for the defendant. The court needed to decide whether the objective elements of murder were sufficiently established to warrant a declaration and to determine the appropriate supervision order under section 269O of the Act, including the fixing of a limiting term.

The court found that the defendant's unfitness to stand trial did not preclude a finding that the objective elements of murder had been established. The evidence presented, including declarations by consent and other documentary evidence, allowed the court to make findings of fact beyond reasonable doubt. The relationship between the defendant and the victim, Antonia Larizza, was characterized by aggression, control, and fear, culminating in the defendant's violent actions against the victim. The court fixed a limiting term equivalent to the period of imprisonment that would have been appropriate if the defendant had been convicted of the offence, taking into account the severity of the crime and the defendant's mental state.

The court's orders included a declaration that the defendant was liable to supervision and the making of a supervision order committing the defendant to detention. The limiting term was set based on the appropriate sentence for the offence of murder, without considering the defendant's mental impairment.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

Section 269O provides:(1) The court by which a defendant is declared to be liable to supervision under this Part may—(a) release the defendant unconditionally; or(b) make an order (a “supervision order”)—(i) committing the defendant to detention under this Part; or(ii)releasing the defendant on licence on conditions decided by the court and specified in the licence.(2) If a court makes a supervision order, the court must fix a term (a “limiting term”) equivalent to the period of imprisonment or supervision (or the aggregate period of imprisonment and supervision) that would, in the court's opinion, have been appropriate if the defendant had been convicted of the offence of which the objective elements have been established.(3) At the end of the limiting term, a supervision order in force against the defendant under this Division lapses.Note—1 The court should fix a limiting term by reference to the sentence that would have been imposed if the defendant had been found guilty of the relevant offence and without taking account of the defendant's mental impairment.The Evidence Counsel for the Director of Public Prosecutions tendered a number of declarations by consent.[2] It was agreed that, had the declarants given evidence in person, the contents of their declarations would have been the sworn evidence. The declarations and other documentary evidence have allowed the following findings of fact to be made beyond reasonable doubt.[2] Leonard Lans (father-in-law to the defendant’s son Arturo), Susan Wride (Constable stationed at the Police Communications Centre), Megan Foster (Administrative Officer, Law Enforcement Liaison, Telstra Corporation Limited), Arturo Larizza (son), Jennifer Lans (daughter-in-law, married to Arturo), Claire Halliday (de facto partner of Domenico Larizza), Domenico Larizza (son), Brett Harrison (Constable stationed at Sturt), Paul van der Ploeg (Senior Constable, Physical Evidence Section), Kym Hand (Detective Senior Constable stationed at Sturt CIB), Donald Sims (Forensic Scientist), and Professor Roger Byard (Specialist Forensic Pathologist). The defendant was married to Antonia Larizza for more than 40 years. They lived at Somerton Park for about 25 years. There were three children of the marriage. The relationship between the defendant and Antonia Larizza had not been a happy one for many years. They lived separately under the same roof at Somerton Park. The defendant did not like the time that Antonia Larizza spent with her Jehovah’s Witness friends and accused her of having affairs. The eldest son, Dominic, said that his mother had been unhappy with the defendant and had wanted to leave, but had a fear of the defendant. She was concerned that any attempt to leave would be met with anger and violence. The evidence established that the defendant was aggressive toward, and controlling of, Antonia Larizza. The defendant had frequently complained that she had engaged in improper conduct. However no evidence supported any impropriety on her part.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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