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

1. 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

2. 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.

3. 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

4. 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).

5. 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.

6. 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.

7. At a family gathering two days before the incident, Antonia Larizza told her daughter-in-law, Jennifer Lans, that she wanted to leave the defendant and visit her family in Canada.  She was concerned about the defendant’s reaction as he was a very jealous and angry man.  On the same occasion Antonia Larizza told family members she wanted to leave the defendant.

8. Two hours before her death on 28 December 2001, Antonia Larizza spoke by telephone to her son, Arturo Larizza.  She was distraught.  She said that she could not go on living with the defendant under the same roof.  Arturo then spoke to the defendant, his father.  He told the defendant to stop arguing.  The defendant said that Antonia Larizza was free to leave.  When the police arrived after the incident, it was evident that Antonia Larizza had been packing her belongings.

9. At 11.50am on 28 December 2001, the defendant rang Leonard Lans, the father-in-law of Arturo Larizza.  The defendant said to Mr Lans:

   Leonardo, it’s me, tell Arturo he can come and get his mother, she’s dead.

   Mr Lans then rang both his daughter and the police at 000.  He informed the police of the telephone call he had received from the defendant.

10. The records of the Police Communications Centre disclose that a 000 call was received from the defendant at 12.00pm on 28 December 2001.  A tape recording was made of the call.  The defendant advised that he needed the police to come and collect his wife, and that he had just killed her.  The transcript of the call includes the following:

    Larizza:  Come to collect my wife.

    Constable Wride:          What for?

    Larizza:  I kill she.

    Constable Wride:          Pardon?

    Larizza:  I kill she.

    Constable Wride:          Where are you?

    Larizza:  243 Brighton Road, Somerton Park.

    Constable Wride:          And you’ve killed her?

    Larizza:  Yep.

    Constable Wride:          Why?

    Larizza:Oh I …………….for living with the prostitution, prostitution and very bad woman and, and the re [sic], religion making me very crazy now.

    The 000 telephone call was made from the defendant’s home telephone.

11. When the police arrived at the Somerton Park property, the defendant was at the front of the house.  The police observed that his hands, arms and face as well as parts of his clothing, were covered in blood.  The police found Antonia Larizza in the back room at the premises.  She was facedown in a pool of blood.

12. The pathology report concluded that death was due to a stab wound to the left side of the neck.  A knife with a serrated edge was used, which resulted in major arteries and veins being cut with subsequent rapid blood loss.  There were other superficial wounds to the chin, neck and chest.  The injuries to the chest appeared to be skin pricks from the tip of the knife, and their nature suggested Antonia Larizza may have been taunted or threatened.  The injuries to the hands and arms were characteristic of ‘defence’ wounds indicating that Antonia Larizza had attempted to ward off blows from a knife or had attempted to grasp the knife.

    Findings

13. The objective elements of the crime of murder require the Crown to prove beyond reasonable doubt that the defendant by his act caused the death of Antonia Larizza.

14. It has been proved beyond reasonable doubt that the defendant caused the death of Antonia Larizza. The objective elements of the offence have been established. This finding is recorded pursuant to section 269MB(2) of the Criminal Law Consolidation Act and it is declared that the defendant is liable to supervision under Part A of the Act.  The defendant is to be committed to detention pursuant to section 269O.  The fixing of a limiting term is adjourned for further consideration.