R v Latesto
[2005] VSC 16
•7 February 2005
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
CRIMINAL DIVISION
No. 1431 of 2004
| THE QUEEN |
| v |
| SAM LATESTO |
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JUDGE: | KAYE J. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 31 January, 1-3 February 2005 | |
DATE OF SENTENCE: | 7 February 2005 | |
CASE MAY BE CITED AS: | R v Latesto | |
MEDIUM NEUTRAL CITATION: | [2005] VSC 16 | |
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CRIMINAL LAW – Sentencing – Intentionally causing injury.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr B. Kayser | Office of Public Prosecutions |
| For the Accused | Mr W.M. Toohey | Amad & Amad |
HIS HONOUR:
Sam Latesto, you have pleaded guilty to one count of intentionally causing injury to Kyriakos Lilikakis. The charge to which you have pleaded guilty arose from an incident which occurred in a motel room at the Matthew Flinders Hotel, Chadstone, on 26 February 2003. As a result of the incident, Mr Lilikakis died.
Originally, you, together with Yiannis Andos and Mario Guiseppe Basile were charged with murder. You were each discharged on the count of murder at the committal proceeding in May 2004. The Director of Public Prosecutions then presented Andos, Basile and yourself each on one charge of manslaughter. The trial on that presentment commenced before me on 31 January 2005.
The first two days of the trial were spent in legal argument. On the third day, 2 February, the Crown filed a fresh presentment charging you with the count to which you have pleaded guilty. After you pleaded guilty to that charge, on the application of the Crown, I then made an order staying, in respect of you, the presentment which charged you with manslaughter.
You have made a statement to the police concerning your involvement in the incident which led to Mr Lilikakis's death. You have been charged with and pleaded guilty to the count of intentionally causing injury to Lilikakis based on the version of events which you have given to the police in your statement. In the course of the plea which was made on your behalf, you, on oath, gave an undertaking to give evidence in accordance with that statement in the trial of Mario Basile for manslaughter. Accordingly, the Crown accepts for the purposes of your sentence the contents of your statement. That statement has not been tested by cross‑examination. However, as you have undertaken to give evidence on the trial of Mr Basile, I am required to sentence you now. Accordingly, for the purposes of sentencing you, I am bound to accept the version of the circumstances which are set out in your statement.
I now briefly summarise the facts which led to your involvement in the offence to which you have pleaded guilty. You were born on 3 November 1966 and, accordingly, at the time of the offence were 36 years of age. Before the evening in question, you knew Yiannis Andos. However, you had no prior acquaintance with either Mario Basile or Mr Lilikakis.
On the evening of 25 February 2003, Andos and you went to dinner at a restaurant. Andos drove you to dinner. In the course of the meal, Andos told you that he was looking for a man by the name of Kyriakos, referring to Lilikakis, for whom he had organised a loan agreement. When you left the restaurant, and while you were in Andos's car, he told you that he knew a man who might know where Lilikakis was. He then proceeded to contact Basile on his mobile phone. Basile told Andos he knew where Lilikakis was. They arranged to meet each other nearby. After Andos and you met Basile, the three of you returned to Basile's house where he left his vehicle. Basile then entered Andos's vehicle. In your statement you state that you believed Andos wanted to find Lilikakis in connection with Andos's finance deal with him, and that Basile wanted to find him regarding a debt which Lilikakis owed to him.
Andos then commenced to drive to a number of locations at which Basile thought he might find Lilikakis. At each location, Basile got out of the vehicle while you and Andos stayed in it. After you had visited a number of locations, you told Andos and Basile that you were working the next day and it was getting late. When they were on their way to drop you off home, Basile received a telephone call from a woman called Doreen Liaskos. Basile told Andos to turn the vehicle around. You expressed a wish to go home because it was getting late, but Basile said that they could not drop you off at home because they might miss Lilikakis. You did not have any money on you for a taxi, and accordingly stayed in the vehicle
Basile then directed Andos to drive to High Street, Prahran, where the three of you met Doreen Liaskos. At that stage, Liaskos and Basile were arguing and Basile looked extremely angry. Liaskos entered the vehicle with Basile. As the vehicle was travelling along, Basile was abusing Liaskos and sounded particularly jealous of her. He spoke in terms in which he indicated that he did not like Lilikakis.
Ultimately, the four of you ended up at the Matthew Flinders Hotel. At Basile's direction, Andos and you accompanied him to the motel room. Basile gained entry to the room by using a key given to him by Liaskos. When you entered the room, Lilikakis was not present. Basile and Liaskos commenced to search the room, and Basile requested that you join in. However, you declined to do so. You were then about to use the toilet in the motel room when someone said, “He's here.” Basile told you all to be quiet and he would do the talking.
You were at the back of the motel room while Basile, Andos and Liaskos were at the front of the room. Lilikakis then opened the door using his own key. When the door was slightly ajar, Basile grabbed the door and pulled it towards him. Basile and Andos grabbed Lilikakis and tried to pull him inside the room. Lilikakis resisted them. Basile called out for you to help. At first you declined, but when his request became more assertive, you joined in and helped. You grabbed Lilikakis by one of his arms and helped Basile and Andos drag him into the room. While you were doing so, Andos and Basile punched Lilikakis. You could see Basile’s punches landing on Lilikakis’ head. As soon as you had succeeded in pulling Lilikakis into the room, you let go of him. Basile and Andos then commenced to assault Lilikakis.
At that time you say you walked to the toilet. Liaskos called for you to come and help Lilikakis. When you came out of the toilet, you describe how you then saw Basile brutally punching and kicking Lilikakis to the head and upper body. According to your statement, Basile then stomped on Lilikakis’s head when he was on the ground. You say that you felt scared because Basile was out of control. You did not want to have anything else to do with him, so at that time you left the room.
Pausing there, it is clear from your statement and from what was put to me by Mr Kayser, on behalf of the Crown, and by Mr Toohey, who appeared on your behalf, that the charge against you is based on the proposition that by pulling Lilikakis into the room, you thereby aided and abetted Basile and Andos inflicting injury on Lilikakis by punching him while you were still holding him. In other words, by holding Lilikakis and pulling him into the room, you intentionally assisted Basile and Andos to cause injuries to Lilikakis by punching him.
From the point of view of sentencing you, the offence to which you have pleaded guilty ceased at the time that you let go of Lilikakis and went to the back of the motel room. Thereafter, you did nothing else to aid and abet the infliction of injury on Lilikakis.
You were arrested by the police on 16 May 2003. As you were charged with murder, you remained in custody. You were released on bail on 14 May 2004, and thus spent 364 days in custody
I turn to matters relating to your personal background. You are now 38 years of age. You were educated to the age of 16; you successfully completed year 10 level at high school. From then until the age of about 30 years, you lived a useful and blameless life. During that time, you were in regular employment and were clearly of good character.
After leaving school, you first worked for a period of two years in a clothing factory. You then worked in a smallgoods firm for ten years, and for the last seven of which you held the position of foreman. You only left that firm because of a serious illness. You then worked for two years as a labourer for your uncle’s company. Thereafter you worked as a driver for another smallgoods company for two years.
An important turning point in your life came with your marriage at the age of 27 years. Your marriage was not successful and three years later you divorced. As a result, you became quite depressed and, in the words of Mr Toohey, felt down and out. You left your employment and remained unemployed for a period of two years. At the same time, you had trouble with the law and incurred the previous convictions, which you have admitted on your plea.
However, it is noteworthy that of the matters in respect of which you have been convicted, only two involved any element of violence. In December 1998, you appeared before Preston court on charges of breaching the terms and conditions of an intervention order and on two charges of unlawful assault. Those charges were found proven, but the proceedings were adjourned without conviction for a period of six months.
In December 2000 you were convicted at the County Court of false imprisonment. You were sentenced to be released on an undertaking to be of good behaviour for two years. I was informed on your plea that those two matters arose out of similar circumstances and occurred in the context of a de facto relationship which you had with another women and which apparently did not end well. It is clear from the disposition of the court that whatever violence was involved in those offences must have been quite minor
The other matters in respect of which you have come before the courts concern matters of dishonesty for which you have received either a fine or community-based orders
In addition to your work record which was, until about the age of 30, both steady and impressive, you were also a keen and apparently very successful and skilful Australian Rules footballer. You played in the Diamond Valley League for a number of years and had the distinction of being best and fairest in that competition on one occasion, and runner-up on three occasions. Thereafter, you also played football in the country. You ceased participating in that sport at the age of 33. Your sporting career stands to your credit, as it reveals that you have made the most of your natural talents and utilised them to the utmost. Indeed, I was told that while you were off work after the failure of your marriage, you supported yourself by playing football in the country, for which you were well paid.
Shortly before the happening of the offence to which you have pleaded guilty before me, you had regained employment and were working as a concreter. However, it is since your release from prison in May 2004 that your life has changed dramatically for the better. It is to your credit that in the last nine months you have taken significant and constructive steps to rehabilitate yourself. One month after your release from prison, you gained employment with Comelec Solutions. You have held that employment since that time. You have worked long hours, generally six days per week and up to 12 hours per day. Your employer, Mr John Schillaci, gave evidence that you were a conscientious employee. You get along very well the other employees and, as a consequence, Mr Schillaci has promoted you to crew leader. He is evidently quite happy with the way you have worked and foresees a good future for you in his company should you be able to remain at liberty. Relevantly, he told me that you have shown no evidence of having any temper or any aggressive tendencies.
In addition to your work, your personal life has also stabilized and improved dramatically. A mutual friend of yours, Mr Sebastiano Schillaci, who also gave evidence, introduced you to your present fiancé, Mary Valencic. Ms Valencic gave evidence before me. She impressed me as a sensible, caring person who is clearly a beneficial influence to you. She told me that you have been close to and supportive of both her and your own elderly parents. Ms Valencic and you have plans to marry in the near future. She is five months’ pregnant. Together you are building a home. During your spare time, you physically assist to carry out the work, at which she told me you were quite skilled. She also testified to your conscientious attitude to your employment
Mr Sebastiano Schillaci also gave evidence. He has known you for 20 years, and you and he are good friends. Mr Schillaci testified to your general good character. When he heard that you had been charged with murder, he could not believe it because that was so much out of character for you. He told me that you are not a man of violence. Further, he told me of the support and assistance which you provided to your parents and, in particular your father, who suffers from ill health.
It is clear from the witnesses who gave evidence before me that you are, indeed, genuinely remorseful for your involvement in the offence which, after your cessation of your involvement in it, culminated in the death of an innocent man. I accept the evidence that you are truly remorseful for your involvement in the incident and that you feel genuine distress for the hurt and grief which has been occasioned to the family of Mr Lilikakis.
It is plain from the evidence which has been put before me on your plea that your involvement in an incident of this type is out of character for you. Your creditable efforts to rehabilitate yourself bear testimony to the fact that you have been jolted by your involvement in the incident and you have made a real effort to turn over a new leaf.
The offence for which you have pleaded guilty is, of course, most serious. I am well conscious of the fact that I must sentence you only for the charge in respect of which you have pleaded guilty. Nevertheless, it is clear that you went to the motel in circumstances in which you must have appreciated there was at least a realistic possibility, if not a real probability, that the other two men would inflict violence on Mr Lilikakis because of their grievances with him. You have not been presented on the basis that you acted in concert with them, but, nonetheless, it must have come as no surprise to you when Basile and Andos attacked Lilikakis. Yet when the attack commenced, you assisted them, albeit with some reluctance. By your plea of guilty, you acknowledge that you aided and abetted Basile and Andos to intentionally cause injury to Mr Lilikakis.
It is, I consider, an aggravating feature of the event that you must have foreseen the possibility, if not the real likelihood, that violence was to occur when you entered the motel room. Thus, your act of aiding and abetting was not entirely spontaneous. The attack on Mr Lilikakis was cowardly. There were three of you. Mr Basile is a big man and you were young and fit. Mr Lilikakis was 55 years of age. Importantly, Lilikakis had given you no cause at all to assault him and, as far as you were concerned, there was no justification for either of the other men doing so. He was an entirely innocent victim of a wanton act of violence on him by three grown men.
Further, it does not go to your credit that after you desisted from assisting Basile and Andos to assault Lilikakis, you then did nothing to intervene or to help Lilikakis when the situation clearly got out of hand. You are not to be sentenced for the further violence inflicted on Lilikakis after you withdrew from assisting Basile and Andos. Nor do I consider your failure to render assistance an aggravating factor. Nevertheless, you were present when, according to your statement, a brutal and vicious beating was meted out to Lilikakis which resulted ultimately in his death. It reflects most poorly on your that you did virtually nothing to intervene. It also reflects most poorly on you that you did nothing to help Lilikakis or to summon urgent medical assistance after the violence had ceased.
The infliction of the initial assault on Lilikakis which you aided and abetted is serious and is rightly treated as such by our courts. It is the responsibility of the court to make it clear to the community that it will not tolerate the use of violence in the type of circumstances which are set out in your statement. If there were not significant mitigating circumstances attaching to you, I would have to seriously consider sending you back to prison
However, in the course of his helpful and compelling plea on your behalf, Mr Toohey elucidated a number of matters which, taken together, do constitute significant mitigating circumstances which I am bound to take into account in determining your sentence. In particular, those mitigating circumstances are as follows:
1.Until about the age of 30 years, you lived a blameless and good life and were clearly of good character. It is to your credit that you did so. The first three decades of your life demonstrate that you clearly have the potential to be a valuable and law abiding member of the our community.
2.I accept that the previous convictions incurred by you took place at a time in which your personal life had suffered significant disruption. They do not reveal you to be a person of violent disposition. The previous convictions for dishonesty are of some relevance, but are not particularly significant in sentencing you to the offence of intentionally causing injury.
3.Since your release from gaol in May 2004, you have made admirable and commendable steps to rehabilitate yourself. Those steps give me confidence that you have turned the corner and have learnt a lesson in the clearest possible terms.
4.As I have stated, I accept that you are genuinely remorseful for your involvement in the incident, and particularly that after your involvement in the incident had ceased, further violence was inflicted on Mr Lilikakis which resulted in his death. I accept that your remorse goes beyond being sorry that you are in trouble, but also extends to and includes genuine remorse for the distress which has been occasioned to the family of Mr Lilikakis.
5.You have pleaded guilty. At law, you are entitled to a credit for doing so. In the circumstances, as I consider that your plea is accompanied by genuine remorse, that credit should be quite substantial.
6.The fact that you have given an undertaking to give evidence on the trial of Mr Basile is an important mitigating factor. In this respect, I agree with Mr Kayser, who quite properly stated that the discount on your sentence in this respect should be a significant one.
7.It is clear from the evidence that any further term of incarceration would bear harshly on yourself and also on your family and, in particular, your fiancé. It would deprive you of the opportunity to be present at the birth of the your child and, importantly, to consolidate your relationship with your fiancé who is, I consider, a most beneficial influence on you.
Taken together, all of those mitigating circumstances are significant and weighty.
As I have stated, the offence for which you have pleaded guilty is serious and would otherwise require that I consider sentencing you to a term of imprisonment which would involve your return to gaol. However, taking into account all the mitigating circumstances, I accept the submission which was made on your behalf that I should not sentence you in a way which would involve you being subjected to any further imprisonment. It is, of course, important that the sentence which I shall pronounce reflects the court’s condemnation of the violent offence to which you have pleaded guilty. Accordingly, I propose shortly to sentence you to a term of imprisonment, but with the effect that it be suspended for any period which does not include the time which you have already spent in gaol. Notwithstanding your rehabilitation to date, I intend that the balance of the sentence be suspended over the next 12 months to ensure that your rehabilitation continues.
Accordingly, I sentence you to a period of 15 months’ imprisonment. Pursuant to s.27 of the Sentencing Act, I order that three months and one day of that term be suspended for a period of 12 months. As you have already spent 364 days in prison, it is accordingly the effect of the order that you spend no further time in prison, and that the balance of the period of your sentence, namely three months and one day be suspended for 12 months pursuant to s.18(4) of the Sentencing Act. I declare the period of 364 days to be the period reckoned as already served under the sentence, and I shall cause that declaration to be noted in the records of the court.
Pursuant to s.5(2AB) of the Sentencing Act, I announce that I am imposing a less severe sentence than I would otherwise have imposed because of the undertaking given by you to assist by giving evidence at the trial of Basile in accordance with your statement, a copy of which was exhibited in the plea before me. I shall cause to be noted in the records of the court the fact that the undertaking was given and the details of that undertaking.
Mr Latesto, I am obliged by the legislation to explain to you the purpose and the effect of the order which I have just made
You have been sentenced to a term of 15 months’ imprisonment. I have taken into account the period of 364 days served by you as pre-sentence detention, which I declare as time which has already been served. I will suspend the remaining period of your sentence for a period of 12 months from today. If you commit another offence punishable by imprisonment during the period of 12 months, you are liable to be charged with a breach of the suspended sentence and returned to court and you may be required to serve the whole of the suspended sentence in prison.
Let me make it quite clear to you that by the suspension of the sentence, you have been given the opportunity to continue with your rehabilitation, to retain your employment and to make a useful life as a member of our community. The choice is up to you whether you become a useful member of our society or not. I wish you to understand in the clearest terms that if you should come back before me on a breach of the suspended sentence, I will know what choice you have made and you can expect that the overwhelming likelihood is that I will order you to serve the three months and one day which I have suspended as a term of imprisonment.
I so order.
Mr Kayser, is it necessary for me for me to make an order suppressing, during the trial of the Basile, the pre-sentence submissions and my sentencing remarks? Should I suppress publication?
MR KAYSER: Yes, I do ask for an order that under the head of in the interests of justice, that because of the forthcoming trial of Mr Basile, that publication of this morning’s proceedings be prohibited until the conclusion of the trial of Mr Basile.
HIS HONOUR: And that would also include the submissions made by counsel in respect to him.
MR KAYSER: Yes.
HIS HONOUR: I thank you for that. I will make that order. I will order that publication of the submissions made by counsel in respect of the sentence of Mr Latesto and of my sentencing remarks today and of the evidence and submissions be prohibited until verdict in the trial of Mario Guiseppe Basile.
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