【News.com】HeraldSun: Full sentence of John Caratozzolo

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Full sentence of John Caratozzolo
http://www.news.com.au/heraldsun/story/0,21985,25852754-661,00.html

A TRANSCRIPT of the sentence handed down to John Caratozzolo in relation to the death of Dr Zhongjun Cao in January last year.
DPP v CARATOZZOLO 1 SENTENCE
JUSTICE DAVID HARPER

1 At 4.55 p.m. on 26 January last year, Dr Zhongjun Cao died of horrifichead injuries. He had been murdered. You, John Caratozzolo, are one ofhis murderers.

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

3 Ifanything is cowardly, this is the perfect example. Dr Cao, the personyou 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 hoursbefore. He was taken by surprise. All he wanted to do was to walkpeacefully home. Then, without warning, some of your gang came from infront, others from behind. You subjected him to a period of absoluteterror before he was fatally injured.

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

5 Apart fromthe tragedy you inflicted on Dr Cao himself, there have been otherconsequences. All of them were avoidable. The most significant of themhave fallen on Dr Cao’s widow and daughter. Their effect can becompressed into a single sentence. You are responsible for transforminga particularly happy and fulfilling relationship into a source ofcontinuing despair and sorrow. Dr Cao was a loving husband and father,and a highly valued colleague of his fellow academics at VictoriaUniversity.

According to part of what his widow has said inher victim impact statement:  Zhongjun was a very good husband andfather. We have had a very happy family. He and I worked in HenanUniversity in China before we came to Australia. … I fell in love withhim at first sight. Pretty soon, we were married in March 1990. We hadour lovely daughter in 1991, when he was only 24. He loved our daughterand me very much. He worked very hard and tried to give us the bestpossible future. … I have had such a happy marriage and had been sospoiled by my husband that I found it difficult to understand why somecouples want to separate. I thank my husband very much in my life forthe love and care he gave to me and our daughter. We have been husbandand wife for nearly 20 years. It seems that we just met, even betterthan when we were newlyweds. … Nothing harsh came from his mouth in thelast 20 years. He is not just my husband. He is also my best friend andsoul mate … . I have always thought of myself as one of the happiestwives in the world before the tragedy. Now I become possibly thesaddest one.

… My husband, who was so young and healthy … diedin such a tragic way at the age of 41 years old. My husband called mebefore he left his office on that terrible night. When I saw him thenext day, he lay on the bed in the hospital maintaining his life withthe aid of a life support machine … One week later he became an ash infront 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 Ifeel? I lost my husband when I was 42 and my daughter lost her belovedfather when she was just 16 years old. I do not know who can acceptsuch a loss. My family was destroyed totally and the pain cannot becured 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 myhusband’s tragedy deserve? …

I lost something which is morethan my life. Life has become meaningless for me without my husband. Ido not know how I can live a life with such a pain in my heart. Lifebecomes a burden and I do not know how to deal with it. … My career hasalso been negatively affected significantly. I used to be one of themost productive researchers in my Institute, and was offered a researchposition before I finished my Doctorate of Philosophy …(but) even afterI finally gathered enough strength to go back to work, I found myselfstruggling with the work I used to enjoy so much. I could not focus onreading, and have hardly read any papers in the last one and a halfyears (although) reading five to 10 papers a day (was) an easy task forme before.

6  The victim impact statement provided by Dr Cao’sdaughter is equally expressive. She says: The image of dad lying on ahospital bed is one that will haunt me for the rest of my life, lookingbarely recognisable with his face badly swollen, eyelids black andpurple, head half shaved so that he could have his skull removed toreduce pressure from his brain and dried blood down his legs and in hisears. A million tubes of different shapes and functions were attachedto him while machines beeped and flashed around him.

Thosefour days at the hospital were the hardest time that I have experiencedin my life and possibly will ever experience. Mum barely slept or ateat all … when we stayed in the hospital and did nothing but talk to mydad, 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, hehad only a small amount of blood flow to his brain and was only livingby the aid of life support, it was just like the sky had collapsed overus. …

Agreeing to it was the most heartbreaking and painfuldecision we have made. When I walked into dad’s room after the lifesupport had been switched off and seeing him lying on the bed, at firstI couldn’t believe that this was actually happening – it just lookedlike he was sleeping. Mum was beside herself crying, going hystericaland kissing dad on the cheek, calling his name as if he could wake upand answer her. It was so hard seeing mum like that because she wasusually 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 forme and mum and worked non-stop, the reality hit me hard – it felt socold. 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 inthe fairness of life and of God, the thought that tomorrow will alwaysbe better and the security of knowing my family would always be thereto support me through everything. Those heartless murderers have notonly taken away an innocent, harmless person’s life, but have(dramatically) changed my life, my mum’s life and the lives of allthose who knew him. I toss and turn late at night, not able to get tosleep, thinking about how I would have felt if I was in dad’s position,beaten to death while people watched on.

Life was just sounfair … My dad was one of the nicest, kindest and most patient peopleI knew; everyone (who) knows him has said that. … Not ever in mywildest nightmares I thought something like this would happen to my dad… I thought good people will get what they deserve, but I didn’t thinkthat was so
true anymore.

7  Dr Cao was also a valuedmember of the academic staff of Victoria University. In 2005, heobtained his Doctorate of Philosophy in Education (specifically,Mathematics Education) from Monash University. He had previouslygraduated Bachelor of Science from Henan University in 1987, and hadbeen awarded a post-graduate Certificate in Mathematics from BeijingUniversity in 1991. In Australia, he qualified for a graduate Diplomaof Education from the University of Adelaide. This was awarded to himin 2004. He joined the academic staff of Victoria University in 2005,and in 2007 was promoted to the position of Research Fellow in theUniversity’s School of Education. This was the position he occupied atthe 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 whatyou did on 22 January and the following early morning. When youmurdered Dr Cao, you also ruined the lives of his wife and daughter;the community lost someone who had already made a significantcontribution 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 towalk its streets without fear. This is a fundamental right, one whichall of us are entitled to take for granted. It is a necessary elementof any decent community. You have flouted that right. You have added tothe level of community fear, and fear is a particularly corrosiveforce. You have therefore diminished the quality of life of us all. Youmust pay the price.

10 Others were with you on the night of DrCao’s death. You are not solely to blame. You were, however, aringleader. You may not have been the first to think that curry bashingor simply “rolling someone” that night would be the thing to do. But itwas you who wanted a phone. It was you who wanted your friends to helpyou to get it by robbery. It was you who, as much as anyone except(NAME DELETED), physically assaulted your victim. It was you whoinflicted the final blow.

11 The medical and other evidencedoes not enable me to conclude beyond reasonable doubt that that finalkick was also the fatal blow. On the other hand, there is no doubt thatthat kick was about as hard as you could manage. It was, I amsatisfied, so hard that your foot was itself injured. By then, Dr Caohad suffered a serious head injury. In these circumstances I am alsosatisfied beyond reasonable doubt that your kick to Dr Cao’s head washard enough to kill. So, however, was the force with which Dr Cao’shead hit the pavement, or the nearby brick fence, as he fell after hewas released from the grip of (NAME DELETED).

In the end, I donot think that it is necessary to possible to determine whether Dr Caowas killed by the kick or by the fall, or by a combination of both. Youwere a ringleader in everything that happened. The circumstances inwhich the kick to the head was inflicted were utterly reprehensible.Kicking a prone body is disgusting. It is cowardly. When it is to thehead, it almost beggars belief that any human being could do it toanother. This is especially so when the victim had obviously alreadysuffered a severe head injury. In your case that kick was an integralpart of a murder.

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

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

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

15 Where the victim ofan offence has been intentionally selected by an offender partly orentirely because of the offender’s prejudice towards the victim basedon the victim’s identity, the harm caused is serious, significant andfar reaching. The individual who is victimised will almost certainlysuffer a severe diminution in his or her feelings of self-worth. Allmembers of the target group will feel more vulnerable andcorrespondingly less secure. Other minority groups are also likely tofeel increasingly exposed. Yet no-one can lead a satisfactory orsatisfying life unless they can take their security more or less forgranted. Perhaps most serious of all, in a multicultural society likeAustralia, which celebrates diversity and encourages all groups to livetogether in harmony and equality, crime based upon racism is a negationof Australia’s fundamental values.

16 I do not want to makemore of this point than is warranted. I accept that since yourincarceration you have shown no signs of racist attitudes, even thougheight different nationalities are represented in the youth unit of PortPhillip Prison, where you now live. I also accept that your associateson 22 January themselves formed a multicultural group. It seems to methat the racism you exhibited that night was the product of youthfulstupidity rather than a reflection of considered attitudes.Nevertheless, your crimes did exhibit a racist element. The Court mustat every appropriate opportunity condemn racially based crime as havingan additional, and particularly serious, element within it. I havetherefore taken this into account against you in deciding upon anappropriate sentence.

17 Having selected Mr Mosaheb as your second victim of the night, you personally
confrontedhim with a request for the time. It was past midnight. But your requestwas a mere façade. Both (NAME DELETED) and (NAME DELETED) state thatyou did not wait for an answer: you immediately threw the first punch.I accept their account. You were interested only in putting Mr Mosaheboff-guard. Having done that, you continued the assault, assisted bysome of your friends. One of these was (NAME DELETED). He intervened ashe had done with Dr Cao. The victim was
lifted from the groundand, having been callously dropped, was robbed of whatever was in hispockets and his back-pack. You did not physically remove these items,but you were once again a ringleader in all that happened. Indeed, inthe particular case of Mr Mosaheb, you were clearly the principalactor.

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

19 There canbe no doubt that behaviour of this kind deserves severe punishment. Butthe nature and gravity of your offences, and your culpability anddegree of responsibility for them, are not the only aspects to which Imust 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. Theyresulted in his hospitalisation, and him taking two weeks of sickleave. He continues to suffer from headaches, neck pain and a twistedspinal cord. He is stalked by the fear that it could happen to himagain. His social life has ended, he has had to move into moreexpensive accommodation, and his studies have suffered. He estimateshis financial loss as amounting to some $6500.

21 I must alsohave regard to your previous character. You have been before the Children’s Court on three occasions. On none of them was any convictionrecorded. Your first appearance involved the misuse of a motor vehicle.It is irrelevant for present purposes. On the other hand, on 29 March2007, when you were 19 years old, you faced charges of damagingproperty intentionally, assault with a weapon, possession of adangerous article, and making a threat to kill. These charges arosefrom two incidents, six months apart. In the first, you took out youranger on a restaurant door after a disagreement with your girlfriend.If you need any reason why anger management is worth pursuing, this isa pretty good one.

22 The second incident arose out of yourview that your girlfriend had been badly dealt with by others. Again,your response was completely inappropriate. The sentencing court, nodoubt hoping that the lesson would be learnt, released you on aCommunity Based Order for a period of 12 months. That period had notexpired when you were involved in the events of the night of 22/23January 2008.

23 The third Children’s Court appearance was on31 July 2007. You had been charged with theft. The matter was adjournedfor 12 months upon your entering into an undertaking to be of goodbehaviour in the meantime and to pay $500.00 to the Court Fund. Youwere not half-way into the period of that undertaking before you brokeit in the extremely serious ways I have described.

24 Whenconsidering your prospects for rehabilitation, this is not a good placeto begin. Another disturbing consideration is that you led your friendsinto a second vicious assault not long after you had left a dying man,for whose injuries you and others were responsible, lying on a suburbanfootpath.

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

26 Other evidence,which I accept, gives much greater promise. You have a supportivefamily. Since leaving school, you have had only brief periods ofunemployment. You have worked on a casual basis with the father of(NAME DELETED), and presumably have some knowledge of motor vehicleengines. More particularly, you have since 15 September last year, whenyou joined the youth unit of Port Phillip Prison, embarked on a numberof different programs participation in which is voluntary. One of thefirst of these was an anger management course, which you completed inOctober last year. Six other programs – one for offending behaviour,one for goal setting, an eight week life skills course, a youth drugeducation course, a youth relapse prevention course and an employmentinformation session have all been completed. In addition, you arecurrently undertaking a course in VCAL, covering years 11 and 12 ofsecondary education. You have persisted with this despite difficulties,which include the necessity for individual work with the teachers. Forthis you deserve credit. It is I hope a source of pride.

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

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

29 Another promising sign is that, according to MsLechner, you now take full responsibility for the circumstances behindyour plea of guilty to murder. You also have, she says, an increasingcapacity for insight into your past criminality and the effect it hashad on your victims. Moreover you have, according to her, anincreasingly mature sense of empathy with and concern for thosevictims. Every gain you make in those areas will improve your chancesof rehabilitation, and of your early release on parole when you becomeeligible for it. To adapt what Ms Lechner said in her evidence, thechallenge for you will be to develop these capacities further, and toremain positive and buoyant. If you can do this, your “prospects ofrehabilitation are as good as anyone could hope for”. I accept thisevidence, and have had regard to it in fixing your sentence.

30 Although you are now an adult, you remain a youthful offender. You havenot been in prison before. I accept that, at the time of theseoffences, you lacked the capacity for mature judgment. I have takeneach of these matters into account.

31 Ms Lechner hasdiagnosed you as suffering from clinical depression. There is no directevidence that this contributed to the commission of any of the threeoffences to which you have pleaded guilty. Nor is there any directevidence that it will result in imprisonment weighing more heavily onyou than would otherwise be the case, or that appropriate treatmentwill not be available to you in prison. I should nevertheless make someallowance for it. Ms Lechner has in her report listed the deficits thatyour condition involves, and the difficulty of identifying the mostappropriate treatment. I accept this evidence. I also give you creditfor your contribution to the welfare of the youth unit despite yourdifficulties with this illness.

32 I turn now to your plea ofguilty to each charge. By taking this course, you have saved thecommunity the expense of a trial, and the victims the pain that a trialwould have involved for them. You have also provided, by your plea,further evidence of remorse. I accept that you were in December lastyear prepared to plead to a charge of manslaughter, and that given thatthe prosecution does not allege an intention to kill, that was then atenable position on your part. On the other hand, the death of Dr Caowas so obviously caused by an act of violence done in the furtheranceof a crime which necessarily involved violence (and therefore fellwithin what the lawyers call a “section 3A murder”) that theprosecution was in my opinion fully justified in pressing that charge.

33 Mr Lindner has informed me that the decision to plead guilty to murderwas made before you or your representatives knew of the contents of thestatement made by (NAME DELETED) on 16 July last. I accept that this isso.

34 In my opinion, the appropriate sentence on the chargeof murder is 13 years’ imprisonment. Had you not pleaded guilty, thesentence on that charge would have been 15 years. On the first chargeof robbery, I sentence you to two years’ imprisonment, to be servedconcurrently with the sentence on the charge of murder. Had you notpleaded guilty to that charge, the sentence would have been threeyears’ imprisonment. On the second charge of robbery, I sentence you tofour years’ imprisonment, two of which are to be served concurrentlywith the sentence on the charge for murder. Had you not pleaded guiltyto that charge, the sentence would have been five years and six months’imprisonment, three years and six months of which would have been madeconcurrent with the sentence on the charge of murder.

35 Thetotal effective sentence is therefore 15 years’ imprisonment. I fix aperiod of ten years before you are to eligible for parole. Had you notpleaded guilty, that period would have been 12 years and six months.

36 I declare that a total of 549 days’ detention has already been servedas part of this sentence. I direct that this declaration be entered inthe records of the court.