DPP v Caratozzolo [2009] VSC 305

2 Taken by itself, there is not one redeeming feature in the violence you inflicted on a kind, decent and intelligent man. It was not spontaneous. It was planned. And it was unprovoked. You wanted a mobile phone to replace your own unworkable one. You decided, some time earlier that day, to rob someone for that purpose, and to increase your pleasure by bashing your victim as well. Let me emphasise that. Your intent was not just to limit your violence to that which was necessary to obtain possession of a phone that did not belong to you. You were intent on inflicting as much gratuitous pain and suffering as would add to your pleasure. You had no weapons. But Dr Cao was a lone pedestrian. By contrast, you were in a group of seven.

3 If anything is cowardly, this is the perfect example. Dr Cao, the person you happened by chance to come across, was a complete stranger to you. He was of slight build. It was late at night. Darkness had fallen hours before. He was taken by surprise. All he wanted to do was to walk peacefully home. Then, without warning, some of your gang came from in front, others from behind. You subjected him to a period of absolute terror before he was fatally injured.

4 It was a totally unequal contest. There is no suggestion in the evidence that you first asked Dr Cao to hand over his mobile. The assault came first, the phone was extracted after that. But that was far from all. As the rest of the gang departed, you heaped savagery upon savagery. Dr Cao was down. MM had picked him up and dumped him so that he fell on his head. Indeed, as your barrister put it in the plea on your behalf, you want me to accept that Dr Cao was already dying, and that MM was responsible for the fatal injury. At all events, Dr Cao was prone on the pavement. He was clearly injured, badly. Equally clearly, he was totally incapable of defending himself. Nevertheless, your parting gesture was a vicious kick to the head. Although you had no intention to kill, you otherwise did not care what harm you did or might do to your helpless victim. You ran away, laughing. You had become a laughing murderer, although you did not then know it. You were, however, proud to be a laughing assassin.

5 Apart from the tragedy you inflicted on Dr Cao himself, there have been other consequences. All of them were avoidable. The most significant of them have fallen on Dr Cao's widow and daughter. Their effect can be compressed into a single sentence. You are responsible for transforming a particularly happy and fulfilling relationship into a source of continuing despair and sorrow. Dr Cao was a loving husband and father, and a highly valued colleague of his fellow academics at Victoria University. According to part of what his widow has said in her victim impact statement:

Zhongjun was a very good husband and father. We have had a very happy family. He and I worked in Henan University in China before we came to Australia. ... I fell in love with him at first sight. Pretty soon, we were married in March 1990. We had our lovely daughter in 1991, when he was only 24. He loved our daughter and me very much. He worked very hard and tried to give us the best possible future. ... I have had such a happy marriage and had been so spoiled by my husband that I found it difficult to understand why some couples want to separate. I thank my husband very much in my life for the love and care he gave to me and our daughter. We have been husband and wife for nearly 20 years. It seems that we just met, even better than when we were newlyweds. ... Nothing harsh came from his mouth in the last 20 years. He is not just my husband. He is also my best friend and soul mate ... . I have always thought of myself as one of the happiest wives in the world before the tragedy. Now I become possibly the saddest one.

...

My husband, who was so young and healthy ... died in such a tragic way at the age of 41 years old. My husband called me before he left his office on that terrible night. When I saw him the next day, he lay on the bed in the hospital maintaining his life with the aid of a life support machine ... One week later he became an ash in front of me. My husband disappeared suddenly from my life in this way. Can you imagine how it is like? Can you imagine how my daughter and I feel? I lost my husband when I was 42 and my daughter lost her beloved father when she was just 16 years old. I do not know who can accept such a loss. My family was destroyed totally and the pain cannot be cured in my lifetime. ... My daughter and I are living in a nightmare ... and can never get out of it. How much does my husband's life deserve? How much does the happiness which my family had owned before my husband's tragedy deserve? ... I lost something which is more than my life. Life has become meaningless for me without my husband. I do not know how I can live a life with such a pain in my heart. Life becomes a burden and I do not know how to deal with it.

...

My career has also been negatively affected significantly. I used to be one of the most productive researchers in my Institute, and was offered a research position before I finished my Doctorate of Philosophy ... [but] even after I finally gathered enough strength to go back to work, I found myself struggling with the work I used to enjoy so much. I could not focus on reading, and have hardly read any papers in the last one and a half years [although] reading five to 10 papers a day [was] an easy task for me before.

6 The victim impact statement provided by Dr Cao's daughter is equally expressive. She says:

The image of dad lying on a hospital bed is one that will haunt me for the rest of my life, looking barely recognisable with his face badly swollen, eyelids black and purple, head half shaved so that he could have his skull removed to reduce pressure from his brain and dried blood down his legs and in his ears. A million tubes of different shapes and functions were attached to him while machines beeped and flashed around him.

Those four days at the hospital were the hardest time that I have experienced in my life and possibly will ever experience. Mum barely slept or ate at all ... when we stayed in the hospital and did nothing but talk to my dad, even though he probably couldn't hear us but we still did anyway. When the doctors told us that there really was no hope for my dad, he had only a small amount of blood flow to his brain and was only living by the aid of life support, it was just like the sky had collapsed over us. ... Agreeing to it was the most heartbreaking and painful decision we have made. When I walked into dad's room after the life support had been switched off and seeing him lying on the bed, at first I couldn't believe that this was actually happening - it just looked like he was sleeping. Mum was beside herself crying, going hysterical and kissing dad on the cheek, calling his name as if he could wake up and answer her. It was so hard seeing mum like that because she was usually such a strong person. When I went to hold dad's hand, the hand that looked after me and did so much for me, cooked dinner for me and mum and worked non-stop, the reality hit me hard - it felt so cold. That was when I started crying and just could not stop myself.

... Dad's death had taken away my most valued beliefs from me: my faith in the fairness of life and of God, the thought that tomorrow will always be better and the security of knowing my family would always be there to support me through everything. Those heartless murderers have not only taken away an innocent, harmless person's life, but have [dramatically] changed my life, my mum's life and the lives of all those who knew him. I toss and turn late at night, not able to get to sleep, thinking about how I would have felt if I was in dad's position, beaten to death while people watched on. Life was just so unfair ... My dad was one of the nicest, kindest and most patient people I knew; everyone [who] knows him has said that. ... Not ever in my wildest nightmares I thought something like this would happen to my dad ... I thought good people will get what they deserve, but I didn't think that was so true anymore.

7 Dr Cao was also a valued member of the academic staff of Victoria University. In 2005, he obtained his Doctorate of Philosophy in Education (specifically, Mathematics Education) from Monash University. He had previously graduated Bachelor of Science from Henan University in 1987, and had been awarded a post-graduate Certificate in Mathematics from Beijing University in 1991. In Australia, he qualified for a graduate Diploma of Education from the University of Adelaide. This was awarded to him in 2004. He joined the academic staff of Victoria University in 2005, and in 2007 was promoted to the position of Research Fellow in the University's School of Education. This was the position he occupied at the time of his murder.

8 I recite these facts not because, for the purposes of sentencing, one life is more valuable than another. Rather, I do it because you must confront the evil consequences of what you did on 22 January and the following early morning. When you murdered Dr Cao, you also ruined the lives of his wife and daughter; the community lost someone who had already made a significant contribution to it, and who promised to contribute much more.

9 Another point must be made, and made forcefully. Everyone in this city, in this State, and in this country - visitors, students, residents, everyone, whatever their race or gender or beliefs - has the right to walk its streets without fear. This is a fundamental right, one which all of us are entitled to take for granted. It is a necessary element of any decent community. You have flouted that right. You have added to the level of community fear, and fear is a particularly corrosive force. You have therefore diminished the quality of life of us all. You must pay the price.

10 Others were with you on the night of Dr Cao's death. You are not solely to blame. You were, however, a ringleader. You may not have been the first to think that curry bashing or simply "rolling someone" that night would be the thing to do. But it was you who wanted a phone. It was you who wanted your friends to help you to get it by robbery. It was you who, as much as anyone except MM, physically assaulted your victim. It was you who inflicted the final blow.

11 The medical and other evidence does not enable me to conclude beyond reasonable doubt that that final kick was also the fatal blow. On the other hand, there is no doubt that that kick was about as hard as you could manage. It was, I am satisfied, so hard that your foot was itself injured. By then, Dr Cao had suffered a serious head injury. In these circumstances I am also satisfied beyond reasonable doubt that your kick to Dr Cao's head was hard enough to kill. So, however, was the force with which Dr Cao's head hit the pavement, or the nearby brick fence, as he fell after he was released from the grip of MM. In the end, I do not think that it is necessary or possible to determine whether Dr Cao was killed by the kick or by the fall, or by a combination of both. You were a ringleader in everything that happened. The circumstances in which the kick to the head was inflicted were utterly reprehensible. Kicking a prone body is disgusting. It is cowardly. When it is to the head, it almost beggars belief that any human being could do it to another. This is especially so when the victim had obviously already suffered a severe head injury. In your case that kick was an integral part of a murder.

12 You did not like the phone stolen from Dr Cao. You also wanted the enjoyment of inflicting some more violence and pain on another innocent and outnumbered stranger. You persuaded some of those involved in Dr Cao's assault to repeat the exercise. For the second time that night you set out to "hustle" a "curry".

13 Those terms are significant. I am satisfied beyond reasonable doubt that they or similar expressions were used by you that night, and that you used them to encourage your mates to join you. By their use, you suggested to your friends that, together, you should mug an Indian.

14 It has been submitted to me on your plea that, although you spoke of seeking out an Indian as your victim, there was nothing racist in this. Rather, you targeted Indians because you thought that Indian students study hard, get good jobs, and have the funds to purchase good phones. I was at first inclined to accept that submission. Now I am satisfied beyond reasonable doubt that an element of racism was involved. In the first place, it was never a case of simply relieving someone of a mobile phone. You were intent on physical injury as well. In other words, you focussed on members of the Indian community as targets for physical assault. You wanted to cause them physical injury. You took the trouble to learn how to swear at Indians. So, having found your second victim, Bhinesh Mosaheb, you swore at him in Hindi. Not only that, but the language you used was designed to cause the maximum offence. That is unequivocally racist.

15 Where the victim of an offence has been intentionally selected by an offender partly or entirely because of the offender's prejudice towards the victim based on the victim's identity, the harm caused is serious, significant and far reaching. The individual who is victimised will almost certainly suffer a severe diminution in his or her feelings of self-worth. All members of the target group will feel more vulnerable and correspondingly less secure. Other minority groups are also likely to feel increasingly exposed. Yet no-one can lead a satisfactory or satisfying life unless they can take their security more or less for granted. Perhaps most serious of all, in a multicultural society like Australia, which celebrates diversity and encourages all groups to live together in harmony and equality, crime based upon racism is a negation of Australia's fundamental values.

16 I do not want to make more of this point than is warranted. I accept that since your incarceration you have shown no signs of racist attitudes, even though eight different nationalities are represented in the youth unit of Port Phillip Prison, where you now live. I also accept that your associates on 22 January themselves formed a multicultural group. It seems to me that the racism you exhibited that night was the product of youthful stupidity rather than a reflection of considered attitudes. Nevertheless, your crimes did exhibit a racist element. The Court must at every appropriate opportunity condemn racially based crime as having an additional, and particularly serious, element within it. I have therefore taken this into account against you in deciding upon an appropriate sentence.

17 Having selected Mr Mosaheb as your second victim of the night, you personally confronted him with a request for the time. It was past midnight. But your request was a mere façade. Both HW and MM state that you did not wait for an answer: you immediately threw the first punch. I accept their account. You were interested only in putting Mr Mosaheb off-guard. Having done that, you continued the assault, assisted by some of your friends. One of these was MM. He intervened as he had done with Dr Cao. The victim was lifted from the ground and, having been callously dropped, was robbed of whatever was in his pockets and his back-pack. You did not physically remove these items, but you were once again a ringleader in all that happened. Indeed, in the particular case of Mr Mosaheb, you were clearly the principal actor.

18 Although the injuries to Mr Mosaheb were not fatal, nevertheless I take very seriously the fact that you were prepared to commit another assault soon after that on Dr Cao. That is a clear indication that you then had no remorse whatsoever for the first attack. It adds significantly to the criminality of the robbery of Mr Mosaheb. This must be reflected in your sentence.

19 There can be no doubt that behaviour of this kind deserves severe punishment. But the nature and gravity of your offences, and your culpability and degree of responsibility for them, are not the only aspects to which I must have regard. Another is the impact of the offences on any victim, and his or her personal circumstances.

20 Fortunately, although Mr Mosaheb's injuries were serious, they were not fatal. They resulted in his hospitalisation, and him taking two weeks of sick leave. He continues to suffer from headaches, neck pain and a twisted spinal cord. He is stalked by the fear that it could happen to him again. His social life has ended, he has had to move into more expensive accommodation, and his studies have suffered. He estimates his financial loss as amounting to some $6,500.

21 I must also have regard to your previous character. You have been before the Children's Court on three occasions. On none of them was any conviction recorded. Your first appearance involved the misuse of a motor vehicle. It is irrelevant for present purposes. On the other hand, on 29 March 2007, when you were 19 years old, you faced charges of damaging property intentionally, assault with a weapon, possession of a dangerous article, and making a threat to kill. These charges arose from two incidents, six months apart. In the first, you took out your anger on a restaurant door after a disagreement with your girlfriend. If you need any reason why anger management is worth pursuing, this is a pretty good one.

22 The second incident arose out of your view that your girlfriend had been badly dealt with by others. Again, your response was completely inappropriate. The sentencing court, no doubt hoping that the lesson would be learnt, released you on a Community Based Order for a period of 12 months. That period had not expired when you were involved in the events of the night of 22/23 January 2008.

23 The third Children's Court appearance was on 31 July 2007. You had been charged with theft. The matter was adjourned for 12 months upon your entering into an undertaking to be of good behaviour in the meantime and to pay $500.00 to the Court Fund. You were not half-way into the period of that undertaking before you broke it in the extremely serious ways I have described.

24 When considering your prospects for rehabilitation, this is not a good place to begin. Another disturbing consideration is that you led your friends into a second vicious assault not long after you had left a dying man, for whose injuries you and others were responsible, lying on a suburban footpath.

25 You presented to Carla Lechner, a consultant clinical and forensic psychologist, as a young man with no real sense of identity or belonging. According to Ms Lechner, whose evidence I accept, you have longstanding problems with anxiety. You also have a general lack of self-esteem. You may have suffered during your school years from attention deficit hyperactivity disorder. At all events, when at school you were the victim of bullying and teasing. You were also once assaulted by a group of about 30 boys. This must have been a frightening experience, which ought to have weighed on your mind when you were contemplating assaults upon others.

26 Other evidence, which I accept, gives much greater promise. You have a supportive family. Since leaving school, you have had only brief periods of unemployment. You have worked on a casual basis with the father of MM, and presumably have some knowledge of motor vehicle engines. More particularly, you have since 15 September last year, when you joined the youth unit of Port Phillip Prison, embarked on a number of different programs participation in which is voluntary. One of the first of these was an anger management course, which you completed in October last year. Six other programs - one for offending behaviour, one for goal setting, an eight week life skills course, a youth drug education course, a youth relapse prevention course and an employment information session have all been completed. In addition, you are currently undertaking a course in VCAL, covering years 11 and 12 of secondary education. You have persisted with this despite difficulties, which include the necessity for individual work with the teachers. For this you deserve credit. It is I hope a source of pride.

27 You have reason to be even prouder of your participation in the small business program conducted in the Port Phillip youth unit. This has been set up to teach those in the unit who volunteer for it all the different aspects of establishing and running a small business. You and your fellow volunteers screen-print T-shirts in an exercise designed to make participants responsible for all the decisions necessary for a successful business venture. The profits are donated to charity. Your participation has been at a high, though not managerial, level. I accept the evidence of Ms Anne Hooker, the youth development officer in charge of the small business program, that you have engaged in a very active and positive way in every activity that has been suggested to you. I also accept that, whilst in custody, you have established a reputation as a very polite, well mannered young man, who is a good example to other inmates. Your influence has been especially beneficial for new arrivals in the unit. Indeed, you are seen as a role model, as very likable, and as staying very positive, despite evidencing a range of symptoms consistent with a diagnosis of clinical depression.

28 About a fortnight ago, Ms Hooker asked you to record in writing your account of the courses you have undertaken in the youth unit. I understand that this was not done for court purposes, but as a regular part of your studies. I have read that account. It covers two and a half pages, and is an impressive example of the effort you are putting into the programs on offer to you in the unit. You are to be commended for it.

29 Another promising sign is that, according to Ms Lechner, you now take full responsibility for the circumstances behind your plea of guilty to murder. You also have, she says, an increasing capacity for insight into your past criminality and the effect it has had on your victims. Moreover you have, according to her, an increasingly mature sense of empathy with and concern for those victims. Every gain you make in those areas will improve your chances of rehabilitation, and of your early release on parole when you become eligible for it. To adapt what Ms Lechner said in her evidence, the challenge for you will be to develop these capacities further, and to remain positive and buoyant. If you can do this, your "prospects of rehabilitation are as good as anyone could hope for". I accept this evidence, and have had regard to it in fixing your sentence.

30 Although you are now an adult, you remain a youthful offender. You have not been in prison before. I accept that, at the time of these offences, you lacked the capacity for mature judgment. I have taken each of these matters into account.

31 Ms Lechner has diagnosed you as suffering from clinical depression. There is no direct evidence that this contributed to the commission of any of the three offences to which you have pleaded guilty. Nor is there any direct evidence that it will result in imprisonment weighing more heavily on you than would otherwise be the case, or that appropriate treatment will not be available to you in prison. I should nevertheless make some allowance for it. Ms Lechner has in her report listed the deficits that your condition involves, and the difficulty of identifying the most appropriate treatment. I accept this evidence. I also give you credit for your contribution to the welfare of the youth unit despite your difficulties with this illness.

32 I turn now to your plea of guilty to each charge. By taking this course, you have saved the community the expense of a trial, and the victims the pain that a trial would have involved for them. You have also provided, by your plea, further evidence of remorse. I accept that you were in December last year prepared to plead to a charge of manslaughter, and that given that the prosecution does not allege an intention to kill, that was then a tenable position on your part. On the other hand, the death of Dr Cao was so obviously caused by an act of violence done in the furtherance of a crime which necessarily involved violence (and therefore fell within what the lawyers call a "section 3A murder") that the prosecution was in my opinion fully justified in pressing that charge.

33 Mr Lindner has informed me that the decision to plead guilty to murder was made before you or your representatives knew of the contents of the statement made by MM on 16 July last. I accept that this is so.

34 In my opinion, the appropriate sentence on the charge of murder is 13 years' imprisonment. Had you not pleaded guilty, the sentence on that charge would have been 15 years. On the first charge of robbery, I sentence you to two years' imprisonment, to be served concurrently with the sentence on the charge of murder. Had you not pleaded guilty to that charge, the sentence would have been three years' imprisonment. On the second charge of robbery, I sentence you to four years' imprisonment, two of which are to be served concurrently with the sentence on the charge for murder. Had you not pleaded guilty to that charge, the sentence would have been five years and six months' imprisonment, three years and six months of which would have been made concurrent with the sentence on the charge of murder.

35 The total effective sentence is therefore 15 years' imprisonment. I fix a period of ten years before you are to eligible for parole. Had you not pleaded guilty, that period would have been 12 years and six months.

36 I declare that a total of 549 days' detention has already been served as part of this sentence. I direct that this declaration be entered in the records of the court.