R v Sporton
[2016] VSC 290
•27 May 2016
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S CR 2015 0088
| THE QUEEN |
| v |
| JONATHON SPORTON |
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JUDGE: | Beale J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 1 April 2016 |
DATE OF SENTENCE: | 27 May 2016 |
CASE MAY BE CITED AS: | R v Sporton |
MEDIUM NEUTRAL CITATION: | [2016] VSC 290 |
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CRIMINAL LAW – SENTENCE – Murder – The deceased, a stranger, intervened to stop the offender assaulting the offender’s girlfriend on a major street in broad daylight – Offender chased and stabbed the deceased a number of times, despite presence of many witnesses – Priors for violence and weapons offences – Disturbed childhood and extremely disadvantaged background – Plea of guilty – Remorse – Youthful offender – R v Terdputham and Seehaverachart [2015] VSC 740.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr A Tinney SC | Office of Public Prosecutions |
| Ms D Karamicov | ||
| For the Accused | Mr R Edney | Emma Turnbull Lawyers |
HIS HONOUR:
Jonathon Sporton, you have pleaded guilty to murdering Roger Bertocci at Altona North on 14 December 2014. The maximum penalty for murder is life imprisonment.
Lead-up to Offending
On 4 December 2014 — that is, 10 days before the murder — you were apprehended by police in Graham Street, Port Melbourne pursuant to their powers under the Mental Health Act2014. The police took you to the Alfred Psychiatric Hospital for assessment. In their written referral to the hospital, the police stated, relevantly:
On ice – not making sense. Accusing mates of having set him up ?, [accusing] girlfriend of having sex with his best mate and of becoming pregnant to him. Had been seen possibly fighting with a male on road.
The written referral stated that your girlfriend was one Kesaia Leveni, about whom I will have more to say shortly.
Under the heading “any other concerns”, the police referral also stated:
Talked of wanting to “end it all” - “shoot me”. Made attempt to run in front of truck in Graham St.”
The progress notes from the Alfred Hospital regarding their assessment and treatment of you on 4 December stated, relevantly:
Expressing paranoid ideation and conspiracy theories regarding his friends setting him [up] and accusing him (sic) of robbing their home. Report to police his girlfriend cheated on him with his best mate and she is pregnant to him. Admits to IV drug use this morning….Client reports previously feeling paranoid post Methamphetamines use.
The hospital notes go onto record that you were compliant with the oral medication supplied at the Alfred, namely olanzapine and diazepam. According to other Alfred Hospital records, you were discharged home with your girlfriend the same day, once you were calm, alert and orientated, and expressing regret for your behaviour.
On 6 December 2014, you attended on your GP, Dr Desmond Wong. Dr Wong made the following notes of that consultation:
Anxiety worse, hasn’t been on Lexapro for a while, having some paranoid thoughts, and drinking to excess. Would like to restart Lexapro and wants oxazepam for ...Stopped seeing his Psychologist[1] several weeks ago.
[1]No psychological report was provided on the plea.
Dr Wong prescribed lexapro and oxazepam. In a medical report, Dr Wong stated that he prescribed lexapro for anxiety and depression. He did not state why he prescribed oxazepam.[2]
[2]This is a drug that may be used for the treatment of anxiety and insomnia and controlling the symptoms of alcohol withdrawal.
On Saturday 13 December 2014, your girlfriend Ms Leveni sent you a text breaking off your relationship. You had continued to accuse her of infidelity, which she denied. You clung to the suspicion that your friend had fathered Ms Leveni’s baby, even though Ms Leveni pointed out that your friend was in jail when the baby was conceived.
The Offending
Early on Sunday 14 December 2014, the day of the killing, you sent Ms Leveni a text. It read:
I wil b coming past some time to get my jacket aswell u treacherous unfaithful slut. Now the kid gonna grow up without seein it’s real father, that’s if it was mine. I’m done with all this bullshit once and for all done with all of you \nI’ll be in peace without u snakes.
You attended Ms Leveni family’s home around midday. According to her father, you were acting normally. A couple of hours later, you and Ms Leveni left her home and caught a bus. According to Ms Leveni, the two of you were going to visit her grandmother’s grave.
You were yelling at each other on the bus. You got off the bus in Blackshaws Road, Altona North, near the intersection with Grieve Parade. The arguing continued. Ms Leveni tried to get away from you but you chased after her. She fell as she was crossing Grieve Parade. A number of motorists stopped. One asked you what was going on. You did not reply but Ms Leveni was heard to say that you were trying to kill her and that you had a knife and were trying to stab her. You were seen to drop a large knife wrapped in paper and tape. You picked up the knife and placed it somewhere in the back of your clothing. You said Ms Leveni was a liar.
Mr Bertocci, who had gone to the shops to buy cigarettes, also stopped his car in Blackshaws Road near the two of you. You approached the passenger side of his car and tried to punch the car but you were pulled away by Ms Leveni.
Mr Bertocci got out. He was unarmed. You approached him, aggressively. Mr Bertocci retreated. There was a scuffle between the two of you near his car, after which you produced the knife. Mr Bertocci put his hands up in a defensive posture. He tried to get away. You chased him, slashing at him and wounding him in the back as he tried to escape along Blackshaws Road. When you caught up with him, you stabbed him several times to the front of his torso. He collapsed to the ground and died at the scene.
Immediately after Mr Bertocci collapsed, you went back to Mr Bertocci’s car — a distance of approximately 74 metres — and rummaged through the car, stealing his wallet. You made your way to the nearby Westgate Freeway. On the way you disposed of the wallet and the knife in long grass. They were found the following day when police conducted a line search.
Although you initially dragged Ms Leveni away, she did not run off with you. She returned to Mr Bertocci and, using a piece of her clothing, tried to staunch the bleeding. But when police arrived, she refused to cooperate with police. She has remained uncooperative with authorities ever since.
You were located later that night at Ms Leveni’s home. There was a siege. After many hours, you came out. Police asked you to show your hands. Instead, you told police to shoot and reached for something concealed in your clothing. It turned out to be a hairbrush shoved down the front of your pants.
Autopsy
An autopsy on Mr Bertocci revealed that he had suffered three stab injuries to the left lower chest and the left upper abdomen. One of these extended into the chest cavity, damaging the 5th and 6th ribs, then through the heart and into the lungs. Another extended into the liver and caused substantial damage. A third extended into the costal cartilage but did not enter the chest. There was also a two-pronged stab wound to the left lumbar region of the back which caused no internal damage. The cause of death was determined to be “stab injury to the chest.”
Reason for Offending
You made a no comment Record of Interview. Consequently, you did not provide a contemporaneous explanation for your violence towards Mr Bertocci.
In April 2015, you told a psychiatrist Dr Lester Walton, who was engaged by your lawyers at a time when you were contesting the charge of murder, that Mr Bertocci had threatened to shoot you.
Your counsel conceded at the plea hearing that there is nothing in the materials to support this self-serving claim.[3]
[3]The Queen v Sporton (Unreported, Supreme Court of Victoria, Justice Beale, 1 April 2016) 52 (‘Plea Transcript’).
In March 2016, you saw another psychiatrist, a Dr Turnbull, who had also been engaged by your lawyers. You did not repeat the claim that Mr Bertocci had threatened to shoot you. Rather, you told Dr Turnbull:
He remembered Mr Bertocci “pulled up….started yelling out” and said “if you don’t leave her alone I’m gonna fuck you up.” In Mr Sporton’s view Mr Bertocci was “saying things that weren’t necessary” and “threatening me”, and in his recollection “that’s what set me off, I just lost it.”[4]
[4]Dr Turnbull’s report dated 16 March 2016, 2–3.
The prosecutor pointed out at the plea hearing that, according to one witness, Mr Bertocci only began yelling at you after you produced a knife.[5] In any event, it was conceded by your counsel at the plea hearing that, given the circumstances which prompted Mr Bertocci’s intervention, even if Mr Bertocci yelled at you at the beginning of the confrontation, he did not do or say anything that was “untoward”.[6] Further, it was conceded by your counsel that there was an insufficient evidentiary basis for a finding, on the balance of probabilities, that you believed, subjectively, that you were “under threat” from Mr Bertocci.[7]
[5]Plea Transcript 97–8.
[6]Ibid 53.
[7]Ibid 61–2.
I am satisfied beyond reasonable doubt on the agreed summary of facts that you were the aggressor, even before Mr Bertocci got out of his car.[8] I accept the prosecution’s submission[9] that you murdered Mr Bertocci because you took exception to him intervening in your dispute with Ms Leveni.
[8]Ibid 16.
[9]Ibid 96.
Spectrum of Seriousness for Murder
All murders are serious offences. But there is a spectrum of seriousness to be considered. I understood the prosecution to submit that, having regard to the objective circumstances, your offence falls into the upper end of the spectrum of seriousness for murder. Certainly, there are a number of significant aggravating factors.
You were getting about on that day, armed with a large chef’s knife. That was deliberate, planned conduct.
At the time, you were subject to a wholly suspended sentence of imprisonment for offences involving violence. I will have more to say about your criminal history later.
The reason for Mr Bertocci’s intervention was your plainly aggressive behaviour towards Ms Leveni. Mr Bertocci, a stranger, had the decency and courage to come to her aid. He acted appropriately at all times. You turned your aggression — extreme aggression — on him.
Mr Bertocci tried to get away after you produced a knife. You pursued him, for quite some distance. It was over 70 metres from his car to where he collapsed on the road after being stabbed.
You stabbed Mr Bertocci not once but several times.
You did all this in broad daylight in a public place. The presence of witnesses did not deter you from producing a knife and stabbing Mr Bertocci, repeatedly.
But there was no pre-planning. You were already in an emotionally charged state when Mr Bertocci intervened. You reacted in a horrifying and completely unjustified way to that intervention but it was one, continuous, escalating event. I consider that your offence falls into the mid-range of seriousness for the offence of murder, but at the upper end of the mid-range.
Victim Impact Statements
Your victim’s date of birth was 29 March 1968. He was 46 at the time of his death. He was married with two daughters, who, according to the prosecution opening, were aged 14 and 1 at that time. His death is a tragedy. The repercussions from his death are far reaching.
His widow, Helen Bertocci, and his oldest daughter, Ashlee, read their Victim Impact Statements to the court from the witness box. Their lives have been devastated by your senseless violence. Mr Bertocci’s other daughter, Brylee, who is only two, will grow up without her father. The prosecution also read to me and tendered Victim Impact Statements from:
· Mirella Bertocci – Mother
· Stefanie Gregor – Sister
· Harriet Agapitos – Mother-in-law
· Mark Gregor – Nephew
· Bruno Cutrupi – Cousin
· Tadiana Cutrupi – Cousin
· Tania Napoli – Cousin
· Carly Napoli – Cousin
· Tim and Maria Maddox – Friends
· Greg Walker – Friend
· Elisa Walker – Friend
· Emmanuel Pace – Friend
· Sarah Pace – Friend
· Amber Pace – God daughter
I also received and read a Victim Impact Statement from Mr Bertocci’s nephew Luke Gregor.
Mr Bertocci was clearly a man who was much loved and respected.
In stopping his car to help a woman, a stranger, who was being assaulted, he showed compassion and courage. Whilst his sister, Stefanie, understandably wishes he had not stopped, she rightly said :
I am very proud of my brother, he did an act of bravery, I would have expected nothing less of my brother who would always put the safety of others before his own wellbeing.
The criminal justice system cannot undo the grave injustice you have done. Mr Bertocci’s god daughter Amber acknowledged the harsh reality that:
We all want closure and we are all praying that the final sentencing will give us that. No amount of time though or sentence will ever be long enough. Nothing will bring back Rog….
Antecedents
You were 21 at the time of the offence. You are now 22.[10]
[10]Your date of birth is 17 October 1993.
You have many relevant priors for violence and weapons offences, beginning with an appearance in the Children’s Court when you were just 14.
On 1 November 2007 at Melbourne Children’s Court,[11] you were placed on probation[12] for, amongst other things, four counts of armed robbery, robbery, intentionally causing injury, assault with a weapon and two counts of possessing a controlled weapon.
[11]For breaching an earlier order made by the Children’s Court on 12 September 2007.
[12]For 9 months.
You breached that probation order by fresh offences which included intentionally causing serious injury, intentionally causing injury, armed robbery and common law assault. On 6 November 2008 at Melbourne Children’s Court, you were placed on two concurrent Youth Supervision Orders[13] (‘YSO’) for breach of the probation and the fresh offences. It was a special condition that you undergo anger management counselling.
[13] One YSO was for 12 months, the other for 9 months.
You breached the YSOs by fresh offences, namely two counts of recklessly causing serious injury and one count of recklessly causing injury. On 12 August 2009, at Melbourne Children’s Court you were placed on another 12‑month YSO for the fresh offences and for the breaches of the previous YSOs. It was a special condition that you “continue to attend anger management and drug and alcohol counselling”.
You breached that YSO by fresh offences, namely, recklessly causing serious injury and robbery. On 31 May 2010 at Melbourne Children’s Court, you were sentenced to detention in a Youth Justice Centre for 19 months and 28 days.
On 23 March 2012 at Melbourne Magistrates’ Court, you were convicted and fined for contravening a final personal safety intervention order and other charges.
On 1 May 2012 at Melbourne Children’s Court, you were placed on a 12‑month good behaviour bond for offences which included recklessly causing serious injury, intentionally causing injury, assault in company, affray and assault with a weapon.
On 11 September 2013 at Melbourne Magistrates’ Court, you were placed on a 12‑month community corrections order for offences which included recklessly causing serious injury, three counts of unlawful assault, assault police, assault an officer and contravention of a personal safety intervention order.
Finally, and most significantly on 13 August 2014 at Melbourne Magistrates’ Court, just four months before you murdered Mr Bertocci, you were sentenced to 11 months’ imprisonment, wholly suspended for two years, for the offences of intentionally and recklessly causing injury. The fact that you were on a suspended sentence of imprisonment for violent offences at the time you committed the current offence is an aggravating factor.
Many of your priors are from the Children’s Court. They do not carry the same weight as adult priors because immaturity reduces culpability. But what is clear from your priors is that your tendency to act violently is longstanding.
Your tendency towards violence is relevant to my assessment of your prospects of rehabilitation, which the prosecution submitted were “dismal”. If you had not accepted responsibility for the murder of Mr Bertocci by pleading guilty, I would have accepted that submission. I cannot view your prospects of rehabilitation as reasonable but, in light of your plea, and your youth, I accept your counsel’s submission that “there are still some hopes for [your] rehabilitation”.[14]
[14]Plea Transcript 89.
However, given your longstanding tendency towards violence, specific deterrence and the protection of the community must be significant sentencing considerations. Denunciation, just punishment and general deterrence must also figure prominently.
Offender’s Personal History
I turn now to your personal history.
You had a very disturbed childhood. Your mother and father separated when your mother was pregnant with you. Your father has had very little contact with you. From when you were about two, until you were about six, you had a violent stepfather. He was physically violent towards you as well as your mother.
Serious mental illness has plagued your mother the whole of her adult life. She has been diagnosed with bipolar disorder, schizophrenia and schizoaffective disorder. Her ability to care for you as a child was severely compromised. The Department of Human Services (DHS) intervened. When you were nine, DHS referred you to the Royal Children’s Hospital. The referral[15] stated that you had “ongoing behavioural problems including anger, outbursts, non-compliance and aggression.” The referral also said, “Recently it is reported that Jonathon was threatening to jump out of a 2nd floor window”.
[15]Referral of 26 March 2002, Tab 3 of Defence Folder of Materials.
Because of your mother’s problems, sometimes you stayed in foster care. Often, you stayed with your maternal grandparents, although your grandmother also suffered from mental illness. You formed a very close relationship with your grandfather but on your 13th birthday, 17 October 2006, he died from cancer. His son, Scott Sporton, your uncle, supplied a reference after the plea hearing, by agreement. It confirms the many difficulties that beset your childhood and the fact that your grandfather’s death hit you hard.
You dropped out of school the following year, which was also the year you first appeared before the Children’s Court. You were abusing alcohol and drugs, a problem that has deepened over the years. You commenced using ice when you were about 17. Over the years, you have been a binge user of ice.
Employment History
Your employment record is patchy, unsurprisingly. You were an apprentice carpenter for about a year but were sacked for being intoxicated. You have done labouring work. For some of 2013 and 2014, you worked at a hamburger outlet. I was told by your counsel that you abstained from ice during that last period of employment, but relapsed after you were sacked. You were on Newstart at the time of the murder.
Personal Relationships
You commenced a relationship with Ms Leveni several years ago when you were 18 and she was 22.
On 8 May 2015, Ms Leveni gave birth to your daughter Grace. I was informed by your counsel that your relationship with Ms Leveni continues, despite your incarceration, and that you see your daughter once a week.[16] Your mother who was present for the plea hearing, also visits you.
[16]Plea Transcript 90.
Comparable Cases
In relation to similar cases, your counsel referred me to R v Terdputham and Seehaverachart.[17] I was the sentencing judge in that case which also involved the stabbing to death of a Good Samaritan, a man named Luke Mitchell. Mr Mitchell had intervened when he saw Terdputham and Seehaverachart, and a third offender, Tepsut, assaulting another man on Sydney Road, Brunswick. Mr Mitchell gave Terdputham a blood nose. After Mr Mitchell went on his way, the three men, all of whom were heavily affected by whisky, armed themselves with knives, got in their car and went in search of Mr Mitchell. They found him in the carpark of a nearby 7‑Eleven where, in full view of many witnesses, Terdputham and Seehaverachart attacked Mr Mitchell and stabbed him repeatedly. Tepsut also got out of the car armed with a knife, supporting the other two. Within 24 hours of the stabbing, all three offenders, who were Thai nationals, fled to their homeland. They were arrested there several years later and eventually extradited to Australia. Tepsut ended up pleading guilty to murder and gave evidence against the other two who, unlike you, ran their trial. I sentenced both Terdputham and Seehaverachart to 24 years’ imprisonment with a non-parole period of 18 years.
[17][2015] VSC 740.
Your counsel submitted that the offending of Terdputham and Seehaverachart was:
objectively far more serious in having an altercation, going return[ing] [with] weapons, getting into a car, chasing a man down, stabbing him to death in front of people as a group and then leaving, flying out of Australia and resisting extradition for a number of years.[18]
[18]Plea Transcript 116.
I accept that the offending of Terdputham and Seehaverachart was a more serious example of murder, particularly because they hunted Mr Mitchell down after he had gone on his way — there was a degree of pre-planning — and they attacked him as a group. Further, it is significant that they ran their trial whereas you pleaded guilty. And neither of them suffered anything like the disadvantage and hardships which have been so much a part of your life.
On the other hand, it is appropriate to point out that Terdputham had no prior convictions and Seehaverachart only had priors for drink‑driving offences. In other words, he had no relevant priors. Neither man had previously demonstrated a tendency to be violent. I found that their prospects of rehabilitation were good if they stayed off alcohol. Specific deterrence and protection of the community did not loom as large as it does in your case. Terdputham’s sentence was discounted for the fact that he was suffering from post-traumatic stress disorder after spending three years in a Bangkok prison on remand, a disorder which would make his experience of jail harder. Seehaverachart’s sentence was discounted for the fact that his family were overseas, meaning he would be more isolated in jail than other prisoners.
Mitigating Factors
It is convenient at this stage to summarise what I consider are the main points in mitigation of your sentence.
You pleaded guilty. It may have been a very late plea — it was entered after the trial was listed to commence and just before the jury was to be empanelled — but it meant the victim’s family, the witnesses and the community were spared a trial. Had you pleaded earlier and avoided the need for a contested committal and preparations for a trial, you could have expected a larger discount but, as was conceded by the prosecutor,[19] your plea should still attract a significant sentencing discount on utilitarian grounds.
[19]Plea Transcript 104.
I accept that you are remorseful. Your plea of guilty, though late, is consistent with remorse. Further, you told Dr Walton in April 2015 that “I feel terrible. If I could turn back time, I would 100%. I do feel bad for the bloke.” Whilst you made other self-serving and untruthful remarks to Dr Walton, this statement strikes me as plausible. Further, in your uncle’s reference, he stated: “I know Jonathon is feeling terrible remorse for the fatal death of Roger Bertocci as I saw his reaction in court when he pleaded guilty to the murder.” Only limited weight can be attached to Scott Sporton’s opinion in this regard — given what he bases it on — but I was impressed by his reference which suggested to me that he knows you well. Having regard to these matters in combination, I find, on the balance of probabilities, that you are remorseful.
You come from an extremely disadvantaged background. It is hardly surprising that when you were 13 or 14 you began abusing alcohol and drugs and began appearing in the courts. Your criminal antecedents, tendency to violence and your inability to control your rage on 14 December 2014 has to be understood in the context of that personal background, which I have no doubt played havoc with your emotional development. Many circumstances which formed you were beyond your control.
You are a young man. Even a young man with the background and problems you have can change for the better. Your youth is a reason not to abandon hope, especially since you ultimately accepted responsibility for your offence.
Sentence
I sentence you to 21 years’ imprisonment.
I order that you serve 17 years’ imprisonment before you are eligible for parole.
I make a declaration of 528 days of presentence detention, not including today.
But for your plea of guilty, I would have sentenced you to 23 years’ imprisonment with a non-parole period of 19 years.