DPP v M M [2009] VSC 336

Supreme Court of Victoria|2009-08-12|Before: HARPER

CRIMINAL LAW - Sentence - Murder (Crimes Act 1958, s.3A) - Absence of intention to kill - No weapons used - Robbery - Participation in a group perpetrating robberies - Plea of guilty - Youth offender - No prior convictions - Remorse - Prospects of rehabilitation - Sentenced to 9 years' imprisonment for murder - One year and six months' imprisonment for one count of robbery to be served concurrently - Two years' imprisonment for second count of robbery with 18 months to be served cumulatively - Total effective sentence of 10 years and 6 months - Non parole period of six years - Effect of s 6AAA of Sentencing Act 1991.

MEDIA - Reports of sentence of co-offender - No intention to kill necessary for a s.3A murder - Failure in some media reports to mention no intention to kill - Incomplete media report of sentence of co-offender - Inappropriate reference in headline to non parole period as sentence - Inappropriate comparison with non s.3A murders - Role of the media in shaping public perception - Obligation to report in a manner that properly informs the public - Role of DPP in bringing charge - Adoption of submissions of DPP as to appropriate sentence - Public comments by DPP.

**1 You, MM, have been charged together with John Caratozzolo that on 26 January 2008 you murdered Dr Zhongjun Cao. On 22 January, four days before his death, he had been assaulted and robbed by the two of you, and others. The injuries he then suffered proved fatal.

2 Murder was not the only crime you committed that night. Each of you and Caratozzolo have also pleaded guilty to the robbery of Dr Cao, and to robbing Mr Bhinesh Mosaheb. The second robbery occurred shortly after midnight and therefore very early on the morning of 23 January.

3 On 24 July, I heard a plea of mitigation put on your behalf. In conjunction with that, I also heard a similar plea put on behalf of Caratozzolo. He was sentenced on 29 July. Your sentence was postponed until this morning.

4 I should take a moment to say why this postponement occurred. Caratozzolo, who turned 20 in December 2007, was an adult when the crimes were committed. Any sentence of imprisonment would therefore necessarily be served by him in an adult prison. You were 16 years and four months old when Dr Cao and Mr Mosaheb were attacked. Among other things, this means that the Adult Parole Board, not the Court, is empowered to decide whether, if you are sentenced to imprisonment, your sentence should initially be served in an adult prison or in a Youth Justice Centre. Your sentence was delayed so that the Board could make an informed decision about this aspect of any period of incarceration that might be imposed upon you.

5 The sentence I imposed upon Caratozzolo has attracted media interest. This is not surprising. Dr Cao died in brutal circumstances, and violence on our streets is a source of great community concern. No society can tolerate the violence to which you were a party on the night of 22/23 January last year.

6 You were that night one of a group of eight young men. Another of them was John Caratozzolo. He wanted a mobile phone, but was not prepared to obtain it honestly. He thought it would be fun if, in the dark of the night, the gang could find an Indian student walking in an otherwise deserted street. You had identified Indians as your target because you thought them the most likely to have a phone of the kind you wanted. The plan was that, together, you would attack your victim and rob him of his phone. Some gratuitous violence would increase your pleasure.

7 The plan was adopted. You agreed to join in, although you were not one of the architects of the scheme. It did not involve the use of weapons, and none of you were armed. But against that, there were eight of you, and you planned to attack a lone pedestrian with your fists. The weight of numbers would enable the robbery to be effected.

8 You did not find an Indian student. Instead, you came across Dr Zhongjun Cao. You did not know that he was not an Indian, but you did not really care. There were more important considerations. Dr Cao appeared to be the kind of person who would have the kind of phone you had in mind. Equally important, he was alone and it was dark. The gang decided to attack him, get what you wanted, and run. You did not contemplate any dialogue with your victim before the physical violence began.

9 You were not the first on the scene. Nor did you throw the first punch, or - it seems - any punch at all. But your intervention was decisive. You lifted Dr Cao off his feet, and then dropped him. His head hit a hard object as he fell. Before departing, you (to use your own words) "bent over [Dr Cao] and took out a wallet and mobile phone that was in his pocket." Caratozzolo then kicked him forcefully in the head. He died four days later.

10 The medical and other evidence does not enable me to conclude beyond reasonable doubt whether it was that kick or the impact with the hard surface which inflicted the fatal injury or injuries. On the other hand, I am satisfied beyond reasonable doubt that your action in dropping Dr Cao resulted in the victim's head hitting the pavement, or the nearby brick fence, with a force that was sufficient to kill. 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.

11 For some reason, apparently because it was thought that Dr Cao's phone operated using Chinese script, Caratozzolo was not satisfied with it. He suggested that another victim should be found. Despite what you had already done to Dr Cao, some of your mates agreed. So did you. The search for your next victim began in the early hours of Wednesday 23 January 2008.

12 You travelled into side streets, where you discovered Bhinesh Mosaheb. He was walking home after catching the last train from Sunshine. As with Dr Cao, he did nothing to provoke you. He was, like Dr Cao, alone and defenceless. Caratozzolo asked him for the time but, without waiting for the answer, punched him. Others did the same. You then came from behind and, just as you had done with Dr Cao, lifted him off the ground and then dropped him. By fortunate chance, his injuries 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. Included in that loss is the back pack for the removal of which you were personally responsible.

13 It has been submitted on your behalf that you participated in this way because you were overborne by Caratozzolo. I do not agree. Your elder brother, who was with you, declined to become involved once the attack on Mr Mosaheb had begun. You could have followed his example, or - even better - the example of two others who, after the first incident, left altogether. Your continuation in a second violent episode is beyond excuse.

14 On the evidence available to me, your behaviour on that January night is explicable only on the basis that you were persuaded by older and nastier young men than you to become involved in their designs, and that you were then caught up in the general sense of excitement. Neither your past history nor your behaviour since gives any other clue to your motivation that evening.

15 You were born on 23 August 1991, the second of four children. You will turn 18 in a few days' time. Your family came to Australia from New Zealand in February 2001. Your father is a motor mechanic, and has been in full time employment since his arrival in this country. For some time he operated his own business servicing taxis. Your mother has worked in the retail sector and as a full time mother and housekeeper. She describes you as a pleasant, respectful and decent son - a "beautiful boy from inside and out". She also describes the pain and shock she experienced after your arrest, and the effect that had on her health. She is another victim of your criminality. She and your family nevertheless remain supportive of you.

16 Before 22 January last year, you had an unblemished record. You had no known involvement with drugs. You had never come under police notice. You had completed primary school, where in grade 6 you were a school counsellor. You then commenced your secondary education at Copperfield College in Kings Park and in 2007 completed year 10. You were captain of your class in years 7 and 8, and captain of cricket for your age group. Your English teacher and campus leader has written this about you:**

I have found [MM] to be a courteous student who displayed an interest in English, particularly media issues and the study of texts, and who responded well to constructive criticism of his work making an effort to improve his skills and their applications. He was diligent in completing tasks and met all requirements for the completion of English at year 10 level.

He interacted well with his peers and displayed a mature approach to conflict resolution and indeed he was asked to mediate in disputes on a number of occasions and showed sensitivity to the needs of others of his age group.

[MM] was a charismatic student who enjoyed sport and represented the College in inter-school competition. I found him to be increasingly engaged with his studies during year 10 and he indicated to me that he had set himself the goal of completing his VCE studies.

**17 Some years ago, you joined the Albion Cricket Club, where again you enjoyed success. Although young, you were good enough to be selected in the seniors' second XI. In 2007, you represented your school in the shot put, and on the basis of your success in that sport you were invited to join a track and field squad to represent Victoria in the United States and Canada. Your arrest has prevented your further participation.

18 Since your incarceration, you have completed year 11, and hope to obtain your VCE next year. The very many certificates you have gained while in a Youth Justice Centre give one confidence that you will achieve this ambition.

19 You have pleaded guilty to each of the three charges brought against you. Your plea of guilty to the charge of murder is especially significant. It follows the full admissions you made to the police, and an offer put shortly after your committal hearing to plead guilty to manslaughter. By then, you had already pleaded guilty to the two charges of robbery. The assistance you have given to the authorities has been increased by your offer to make a formal statement which is consistent with the admissions you made to the police. That statement, which is dated 16 July 2009, has been accepted by the Director of Public Prosecutions as being truthful and reliable. It is to be seen against the additional circumstance that, as the Crown accepts, you were prepared to give an undertaking to give evidence in accordance with it should you be called upon to do so. Circumstances have rendered that undertaking unnecessary.

20 By adopting the course described above, you have assisted the authorities in the prosecution of the offences committed on 22/23 January 2008, and have spared the public the expense, and your victims the anguish, of a trial. You have also reinforced the conclusion, which I accept, that you are remorseful. That conclusion is in any case consistent with the apparently aberrant behaviour in which you indulged in January last year. If there is a doubt, it springs from the fact that remorse for the assault on Dr Cao was absent when you repeated the exercise on Mr Mosaheb.

21 Your youth and your prospects of rehabilitation are factors which I have taken into account in your favour. At 16 years of age, as you were in January 2008, you could not be expected to be as mature as someone four or five years older. Your moral culpability must be assessed accordingly. And because of your youth, the community has a particular interest in your rehabilitation.

22 The sentence must reflect other interests as well. I referred earlier to the fact that your mother is one of the victims of your crimes, as indeed are your father and other members of your family. The list, however, extends well beyond them. It includes Mr Mosaheb. It also of course includes the wife and daughter of Dr Cao, and the many other people who loved and admired a gentle, kindly and intelligent man. All have been made to suffer from your indefensible and inexcusable behaviour. I must take into account the impact of your offences on those who are its victims. I am satisfied that that impact on Dr Cao's widow and daughter, and on Mr Mosaheb, has been very severe indeed.

23 General deterrence is another matter to be taken into account. Street violence is a blight upon modern life. 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.

24 Whatever the circumstances of a particular case, fixing upon an appropriate sentence is nearly always a delicate balancing exercise. Some matters which the judge or magistrate are required by law to take into account may be in the offender's favour. Some may not. To give emphasis or even weight to one relevant factor may necessarily detract from another, although all must be accorded their due.

25 In your case that exercise is even more complicated than usual. I have already noted that the Caratozzolo sentence generated media interest. It also generated controversy. As one example of this, I refer to an editorial in the Herald Sun on Friday 30 July, two days after sentence was handed down. The Caratozzolo sentence was described in that editorial as manifestly inadequate. Public outrage, said the editorial, "is growing". Then, just over a week later, the same newspaper provided evidence of the continuing nature of the controversy. On 9 August the Sunday Herald Sun published an article under a headline which referred to what it described as a "lenient" system. That system, the headline said, had been "slammed". The article which followed referred to the Caratozzolo sentence as "sparking controversy over lenient sentencing."

26 Because your sentence follows that of John Caratozzolo, it may be expected to attract even more interest than it would have attracted in any event. The media in particular perhaps anticipate that, following your sentence, more views about sentencing policy will be canvassed, and more controversy generated. The almost inevitable perception will be that this has had an impact upon my decision about the sentence which should be imposed upon you.

27 In other circumstances, I would not have said anything more about the Caratozzolo case. But your sentence, whatever it is, will be examined in the light of his. People's perceptions of the leniency or otherwise of the "system", and their conclusions about whether or not justice has been done to you, to Caratozzolo, to your victims and to the community, will be affected by the results of that examination. It is, therefore, important that I explain in greater detail than is ordinarily necessary the way in which I have approached my task. It is also necessary that I refer to two aspects of the Caratozzolo sentence which have escaped publicity.

28 One such matter is that the Director of Public Prosecutions did not allege, and Caratozzolo was therefore not sentenced on the basis that, he intended Dr Cao's death. The other is that the sentence which I imposed upon him accorded with the punishment which the Director submitted was appropriate. An appreciation of these facts is fundamental to an understanding of the Caratozzolo sentence.

29 The Director of Public Prosecutions had a number of options when deciding upon the offences with which you and Caratozzolo might be charged. Robbery was obviously one of them. The fact that the attack had resulted in Dr Cao's death raised other considerations. Had there been evidence of an intention to kill, murder was another obvious possibility. Generally speaking, however, a charge of murder cannot be made out unless the prosecution proves, and proves beyond reasonable doubt, that the accused intended to kill. But it seems that the Director concluded that there was no, or no sufficient, evidence of an intention to kill, or even to cause really serious injury. I have no quarrel with that conclusion.

30 There are three exceptions to the general rule that a charge of murder cannot be made out unless the prosecution proves beyond reasonable doubt that the accused intended to kill. One is known as reckless murder. The second arises where the accused did not intend to kill, but did intend to inflict a really serious injury. The third appears in s.3A of the Crimes Act. In essence, and so far as is relevant to your circumstances, that section provides that a person who unintentionally causes the death of another person by an act of violence done in the course of a robbery shall be liable to be convicted of murder as though he had killed that person intentionally.

31 The Director of Public Prosecutions chose not to allege an intention either to kill or to cause really serious injury. Rather, he chose to proceed against both you and Caratozzolo by invoking s.3A. I repeat that I do not suggest that he was wrong to take this course. But it was his choice. The Court played no part in making it. On the other hand, it has the result that you must be sentenced on the basis that you did not intend Dr Cao's death. The Court cannot sentence you as if you had an intention that is not alleged and not admitted.

32 I make this point because, to the extent that public outrage was generated by the Caratozzolo sentence, that outrage, it seems, arose in part out of ignorance of the fact that Caratozzolo too had to be sentenced on the basis that the killing of Dr Cao was unintentional.

33 The maximum sentence for a s.3A murder is the same as for a murder constituted by an intentional killing: that is, life imprisonment. On the other hand, Parliament has enacted legislation which requires the courts, when deciding upon an appropriate sentence, to take into account, among other things, the nature and gravity of the offence. And the absence or presence of an intention to kill is something which is a necessary element of that nature and that gravity. Of course, the absence of an intention to kill as a mitigating factor may be so overwhelmed by the criminality of other aspects of a s.3A killing that it cannot warrant any reduction in the sentence which must be imposed. Ordinarily, however, the absence of an intention to kill will result in a lesser sentence than would have been imposed had the criminal intended the death of the victim. That was true in Caratozzolo's case. It is also true in yours.

34 The media properly insist upon the public's right to know, and the media's right to inform. But the right to know is not served, but rather damaged, if a distorted or materially incomplete account is given of the factors which properly impact upon a sentencing decision. The published account may then not inform, but rather mislead. In the Caratozzolo case, this is what happened. In my sentencing remarks I referred once to s.3A and twice to the fact that Caratozzolo did not intend to kill. This circumstance was a factor material to any proper consideration of the sentence. The public therefore had a right to know about it. Some media, however, failed to disclose that important information. Accordingly, reporting of the sentence was to that extent seriously deficient.

35 I appreciate that the media often face difficulties in getting a story out. Sometimes the courts have not given the assistance to which the media is entitled. Pressure of time is often a factor too. But the Caratozzolo sentence was pronounced on the morning of Wednesday 29 July. The reporters from the Herald Sun found the time in between then and the publication of the next morning's newspaper to prepare a graph comparing the sentence imposed upon Caratozzolo with those imposed in 129 other cases of murder over the last five years. It showed that, over that period, only five murderers were imprisoned for a shorter period than was Caratozzolo.

36 In many cases, the graph would not have misled. In this case, it did. It failed to compare like with like. All but a small minority of the 129 cases, it may safely be said, involved the Crown first proving an intention to kill as an essential element in the prosecution case. This material factor is absent in your case, MM, as it was absent in Caratozzolo's case.

37 There has come to my notice only two other instances in the last five years which involved a conviction pursuant to s.3A. The first resulted in a sentence of 12 years and six months' imprisonment, with a non-parole period of eight years. The offender, an adult with no relevant prior convictions, used a firearm in the course of a robbery. He intended to intimidate, not to kill. He pleaded guilty. In the second case, in which I was the judge, the accused pleaded not guilty to murder and was an adult with a long criminal history. But he did not have a weapon, and again the death was unintentional. I sentenced him to 17 years imprisonment for the murder. I fixed a non-parole period of 14 years and six months.

38 The sentence imposed upon Caratozzolo falls not at the bottom of this admittedly tiny spectrum, but between the two. It can thus be seen that, by encompassing sentences for intentional killings, the graph did not advance the public's right to know. On the contrary, because it is misleading, it stands in the path of that right. So does an editorial which referred to Caratozzolo as the leader of a gang who kicked a man to death for fun. The clear implication is that Caratozzolo, and perhaps the whole gang (which of course included you, MM) intended to kill. It is true that Caratozzolo kicked Dr Cao for fun. It is also true that that kick perhaps contributed directly to Dr Cao's death. But it is misleading to describe this as kicking Dr Cao to death for fun.[1] In the light of this circumstance, I must again emphasise that I cannot and do not sentence you on the basis that you intended to kill.

39 On Thursday 30 July the Herald Sun printed an article under the heading "DPP to review 10-year sentence". It too was misleading. The sentence for murder was, in Caratozzolo's case, 13 years. The minimum term is not the sentence. To refer to it as if it were is designed to generate controversy, not report news. I note that the headline above the same newspaper's Saturday 1 August report of the sentencing in New Zealand of the father of the person described by the newspaper as "Pumpkin's dad", referred to the sentence as "life". It did not highlight the fact that the minimum term in that case - in which a middle aged man intended to kill, and then pleaded not guilty - was 12 years.

40 It might be argued that, even allowing for an unintentional killing, Caratozzolo's sentence was not only lenient, but unacceptably lenient. Those who hold that view are, without question, entitled to it - just as they would be entitled to say that baby Pumpkin's father, whose minimum sentence was only two years more than that given to Caratozzolo, received less than he deserved. It is nevertheless wrong for the media to claim to reflect public opinion (and so, for example, to speak of an increase in public concern about sentencing practices) unless that reflection is based upon the best available research about what public opinion really is.

41 The best known to me is surveyed in a paper written by Dr Karen Gelb and published last September by the Sentencing Advisory Council of Victoria. Dr Gelb concludes that the public tends to learn about crime and the criminal justice system through the mass media; but that media's portrayal of crime stories does not provide a complete and accurate picture. The media, she writes, tends to report selectively, choosing stories, and aspects of stories, with the aim of entertaining more than informing. According to Dr Gelb, media focus on crime causes the public to perceive crime as a more serious problem than it is in reality, and so to conclude that sentences are too lenient.

42 I interpolate to acknowledge that sometimes, of course, the courts get it wrong. Sometimes sentences are too lenient; and sometimes, too severe. But (to return to Dr Gelb's paper) when the public is given information which more or less matches that available to the judge, "judicial sentences and public sentences are very similar." Dr Gelb writes that "[d]espite apparent punitiveness, public sentencing preferences are actually very similar to those expressed by the judiciary or actually used by the courts." As things are, however, the public's perception is in her opinion distorted by the inaccuracy of the knowledge it obtains through the media, and the public confidence necessary for the proper administration of justice is unnecessarily diminished.

43 If Dr Gelb is correct, the media is not, in its reporting in this area, advancing the public's right to know. On the contrary (if Dr Gelb is correct) the media is in this respect working to defeat the public interest. As for the courts, in seeking to reflect community values they have no choice but to prefer the best evidence. It follows that, for the present at least, they must prefer the expertise of, and the research done by, those such as Dr Gelb.

44 It must also be said that, in the particular circumstances of this case, the reported conduct of the Director of Public Prosecutions after the Caratozzolo sentence increased the harm done to the public interest. If the reports to which I have had access are accurate, he has fed the controversy by not revealing his part in the sentencing process.

45 The Director's role has several relevant aspects. I have already touched upon the first. It was the Director, not the Court, who decided not to allege any intention to kill Dr Cao. The second is that the Director was good enough, during the course of your plea, MM, and that of Caratozzolo, to put before me what he submitted would be an appropriate sentence in each case. As I have noted, three charges were involved. Senior Counsel for the Director (Mr Trapnell) submitted that a total effective sentence of 15 years with a minimum of 10 years would, in relation to Caratozzolo, be within the range of sentences open to me. That, as Mr Trapnell made explicit, covered all three charges. For their part, your counsel put their own submissions. I was grateful for their assistance, and have in both cases taken those submissions into account.

46 After careful consideration, I rejected the submissions of Caratozzolo's counsel. After the same consideration, I adopted those of the Director. John Caratozzolo was duly sentenced to a total effective term of 15 years' imprisonment, with a direction that he be required to serve a minimum of 10 years before becoming eligible for parole. Of that 15 years, I allocated 13 to the charge of murder. I ordered that the sentence on the first count of robbery should be served concurrently with that for murder. On the second count of robbery, I sentenced Caratozzolo to four years' imprisonment, two of which I ordered be served cumulatively upon the sentence for murder. Hence the total of 15 years. All this was and is consistent with the Director's submissions.

47 The Director spoke publicly following the imposition of that sentence. He may not have been reported accurately. If, however, the reports are accurate, he indicated, in effect, that he would consider whether or not the sentence was manifestly inadequate. He would, he said, then announce whether or not he would appeal. His right to appeal is undoubted. Yet, unless he added a reference to my acceptance of his submissions on sentence, his public comments were inappropriate.

48 I have no doubt that the Director did not intend any harm. Nevertheless, if the reports are accurate, he was careless; and harm has been done. First, he has fuelled controversy. Secondly, his intervention has in your case, MM, adversely impacted upon the administration of justice.

49 In your case, as in that of Caratozzolo, I was grateful for the submissions made by counsel concerning sentence. In every case, however, I must come to my own decision. Yet if I were to decide that it was proper to impose upon you a heavier sentence than that which the Director submitted was appropriate, then some may think that justice had not been done. They might note the fact that Caratozzolo had received a sentence which involved the judge's acceptance of the Crown's submissions; whereas, after that sentence had been castigated in some segments of the media as being too lenient, the judge had in your case sentenced you more severely than the extent to which the Director had submitted was appropriate.

50 In the course of his submissions on sentence, your counsel referred to those imposed on other members of your gang for their part in one or both of the two robberies. He submitted that I should have regard to the principle of parity when arriving at an appropriate sentence in your case.

51 I reject those submissions. Unlike you, the others did not subject the victims to the acts of gross violence to which you subjected them. And it was you who in each case physically removed the stolen goods.

52 I now turn to the sentences themselves. In my opinion, your part in the murder of Dr Cao by an unintentional killing should be punished by imprisonment for a term of nine years. Had you not pleaded guilty to murder, the sentence would have been eleven years' imprisonment. On the first charge of robbery, I sentence you to one year and six months' imprisonment. On the second charge of robbery, I sentence you to two years' imprisonment. Had you pleaded not guilty to those charges, I would have sentenced you to three years' imprisonment on the first, and four on the second. I direct that the sentence on the first charge of robbery be served concurrently with the other sentences. I further direct that 18 months of the sentence on the second charge of robbery be served cumulatively with the sentence for murder. The total effective sentence is therefore ten years and six months' imprisonment. I direct that you serve six years of that sentence before being eligible for parole. Had you not pleaded guilty, the non-parole period would have been eight years and six months. I note in passing that the total effective sentence is six months more than the upper limit of the range which the Director submitted would be open, while the non-parole period accords with his submission.

53 I declare that a total of 563 days' detention, including today, has already been served as part of this sentence. I direct that this declaration be entered in the records of the court.**

[1] In the context of my first reference, when sentencing Caratozzolo, to the absence of any intention to kill, I used the expression "laughing assassin". In that context, it is relevant that the Shorter Oxford Dictionary includes in its definition of "assassinate": "To ... injure maliciously" (my emphasis). This covers that to which Caratozzolo pleaded guilty.

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