Regina v Serratore [2000] NSWSC 696

New South Wales Supreme Court

CITATION : Regina v Serratore [2000] NSWSC 696 CURRENT JURISDICTION: Criminal Division FILE NUMBER(S) : SC 70018/96 01/05/2000 08/05/2000 - 11/05/2000 15/05/2000 - 19/05/2000 22/05/2000 - 26/05/2000 HEARING DATE(S) : 29/05/2000 - 31/05/2000 01/06/2000 - 02/06/2000 05/06/2000 - 08/06/2000 13/06/2000 - 16/06/2000 19/06/2000 - 21/06/2000 30/06/2000 JUDGMENT DATE : 20 July 2000

PARTIES : Regina John Serratore JUDGMENT OF : Kirby J

COUNSEL : P E Barrett (Crown) R Toner SC/S Walsh (Accused) SOLICITORS : DPP (Crown) S Macedone (Accused) CATCHWORDS : CRIMINAL PRACTICE & PROCEDURE - Sentencing - murder - Retrial - Discount for onerous bail conditions LEGISLATION CITED : Crimes Act 1900 Savvas v The Queen (1995) 183 CLR 1 R v Gilmore (1979) 1 A Crim R 416 R v Bedford (1986) 5 NSWLR 711 CASES CITED : R v Previtera (1997) 94 A Crim R 76 R v Cartwright (1989) 17 NSWLR 243 Todd v R [1982] 2 NSWLR 517 Mill v The Queen [1988] 166 CLR 59 DECISION : Ref para 43

THE SUPREME COURT OF NEW SOUTH WALES CRIMINAL DIVISION

KIRBY J

Thursday 20 July 2000

70018/96 - REGINA v John SERRATORE

JUDGMENT ON SENTENCE 1 HIS HONOUR: On Wednesday 21 June 2000, Mr John Serratore was found guilty of the murder of Frances Tizzone. It remains for me to determine the facts (in a manner consistent with the verdict), and to pass sentence. 2 The facts which must be determined are those relevant to the sentencing discretion (Savvas v The Queen (1995) 183 CLR 1), and must satisfy the criminal standard, that is, must be established beyond reasonable doubt. 3 At the time of her death, Frances Tizzone was 21 years old. Mr Serratore was one year older. They had met at school. Soon after leaving school, they began seeing each other again. There was, at this time, affection and commitment between them. They planned to become engaged in 1995. Their romance was attended by a certain formality. In accordance with cultural traditions, the Tizzone family met with the Serratore family. 4 However, in the latter part of 1994, the relationship began to sour. Mr Serratore became jealous and obsessive. More than that, he mistreated Frances Tizzone, physically slapping her on a number of occasions. I have no doubt that the episodes of violence were more frequent that the two occasions that Mr Serratore acknowledged in his evidence. 5 In late October 1994, Mr Serratore noticed that Frances was behaving coolly towards him. He did not see her behaviour as a reaction to his own behaviour, and violence. Rather, he became convinced that she was showing interest in another man. 6 Mr Serratore decided to confront her. He went to the Tizzone house on Saturday 5 November 1994. They argued, and in the course of the argument, Mr Serratore slapped Frances' face. Mrs Patricia Tizzone, Frances' mother, witnessed this action. She called upon her husband to intervene. An ugly scene developed. Both families ultimately became embroiled. 7 After the incident, such was Mr Serratore's fury with Frances Tizzone, that he sought to persuade a friend, a person already facing criminal charges, to harm her. 8 On 18 November 1994, an Apprehended Violence Order was made against Mr Serratore, forbidding contact with Frances Tizzone. 9 Frances Tizzone, however, plainly felt an attraction to Mr Serratore, and some love for him. Without her family's knowledge, she renewed contact with him. And so the romance began once more. I have no doubt that they saw each other from December 1994. Their relationship included sexual intercourse. 10 However, I accept the evidence of Mrs Patricia Tizzone that her daughter disclosed, in March 1995, that she could not put out of her mind the events, and the abuse, of late 1994. I accept that Frances Tizzone determined that she would finish her relationship, and that she communicated that determination to Mr Serratore. 11 Frances Tizzone's sister, Antonella, then aged 15 years, gave evidence that she overheard a telephone conversation in a bedroom they shared. In the course of the conversation, Frances made arrangements to meet someone the next day, 29 March 1995, being the day that Frances disappeared. Antonella remembered the conversation as including the following: (Frances): "I don't want to meet you." 12 Frances Tizzone went on to say: "Or else what? Why are you talking to me like this?" 13 Later she heard Frances say something along the following lines: "OK, I will meet you tomorrow afternoon after Uni. I will meet you at the station. I will bring the card, but make sure you bring the bag." 14 It was the Crown case that Mr Serratore made that call. I have no doubt that Antonella heard the conversation which she repeated in evidence. I am left in some doubt as to when she realised that the person to whom Frances had been speaking was Mr Serratore. However, I am satisfied that it was Mr Serratore, and that the inference Antonella ultimately drew, was the correct one. 15 I believe there can be no doubt that Frances Tizzone made arrangements to meet Mr Serratore. A number of matters point clearly to an arranged meeting. First, on the day she disappeared, Wednesday 29 March 1995, Frances told her mother that she would not be needing the car. Secondly, when offered a lift home by her friend, Ms Rima Abou-Raad, Frances declined. She offered an excuse, which was plainly false. Thirdly, Frances asked her friend to phone her home, so that her family could tape the TV news. She wanted to see an item, and knew she would not be home by the usual time. 16 It may be said, and was said by Mr Serratore at the trial, that such evidence simply points to an arrangement to meet someone. It does not point specifically to Mr Serratore. However, quite apart from the circumstantial case which the Crown sought to make against Mr Serratore, pointing to Mr Serratore as the likely person with whom the arrangement had been made, there was expert evidence that provided a compelling link to Mr Serratore. 17 When Frances Tizzone's body was discovered in bushland, adjacent to the Wakehurst Parkway, there were fibres adhering to her boots. The fibres were the subject of much evidence. There is no question that they came from the car carpet of Mr Serratore's Honda CRX motor vehicle. They pointed to Frances having recently been in his car. And, having been in that car, she almost certainly never walked again. I accept the evidence that the fibres would not have remained upon the shoes had she walked as little as five or ten paces. The suggestion that they may have adhered longer, because of a sticky substance on the fibres, was unconvincing. I am satisfied beyond reasonable doubt that Frances Tizzone was in Mr Serratore's vehicle shortly before her death. 18 The Crown, when putting its case, was not able to say whether Mr Serratore was the assassin, or whether he had help. If he had help, it may simply have been in disposing of the body. The jury was given written directions which identified the elements of the charge in these terms: "1. that Frances Tizzone died; AND 2. that her death was cause by a deliberate act done with intent to kill or cause really serious injury; AND 3. that the act causing death, was an act for which Mr Serratore was responsible, in that either: (a) he carried out the act causing death himself, having that intent; OR (b) he was present, aiding or encouraging another, whom he knew had that intent, to commit the act causing death; OR (c) he procured another to kill Frances Tizzone, which that other duly did." 19 The directions included a note, which was in these terms: "If you are satisfied beyond reasonable doubt that Mr Serratore performed one or other of roles (a) or (b) or (c), and yet are undecided as to which role he performed, your verdict would be guilty of murder." 20 I do not believe, for the purposes of sentencing, that I am obliged to chose between these alternatives. To my mind, the moral culpability attaching to one role is as great as that attaching to another. It may be otherwise, were there room for the view that the slaying of Frances Tizzone was a spontaneous, or explosive, act. I reject that view. The arrangements to meet, and the efficiency with which Frances Tizzone was despatched, point to premeditation, and planning. Although Mr Serratore's act was, on one view, a crime of passion, it was smouldering, vindictive passion, which had more to do with revenge than love. 21 This has been a retrial. I have had the advantage of reading the remarks on sentence of Newman J after the previous trial. I should, therefore, approach my task bearing in mind the words of Street CJ in R v Gilmore (1979) 1 A Crim R 416: (at 419) "It is a sound principle of sentencing that, on a new trial consequent upon the quashing of a conviction by the Court of Criminal Appeal, the accused should ordinarily not receive a longer sentence or non-parole period than those following upon the first trial." 22 Street CJ returned to that principle in R v Bedford (1986) 5 NSWLR 711 where he said this: (at 713) "It might have been preferable to have expressed this as a prima facie approach rather than elevating it to principle. Where the judge of the new trial considers that the circumstances of the case do call for a longer sentence he will not be absolutely fettered by the approach prima facie to be adopted. … It could be expected, however, that, if he did take the view that a longer sentence were called for than that passed at the first trial, then there would be a specific indication of the reasons leading him to this view." 23 This was a brutal and awful crime. A young woman, of considerable promise, was lured into a trap and slain. Her family sat in the gallery throughout the trial. One can only imagine their agony. However, the sorrow of those who remain behind is not a matter which I should take into account, and I do not do so (R v Previtera (1997) 94 A Crim R 76 at 85). 24 Newman J imposed a sentence of 20 years penal servitude. He found special circumstances. He fixed a minimum term of 14 years. He adjusted the minimum term by one year (to 13 years) to reflect 243 days in custody awaiting trial, and a further 122 days for what he described as "onerous bail conditions". 25 I have been urged by both the Crown and Counsel for Mr Serratore to adopt the same approach. Counsel for Mr Serratore also urges that I further adjust the minimum term (the non parole period) to reflect a number of matters that have occurred since the first trial. 26 Mr Serratore was born on 30 January 1973. He is 27 years old. He came from a good family. His family has stood by him since he was charged. That augers well for his rehabilitation. 27 Mr Serratore completed his Higher School Certificate in 1991. He had a number of jobs, and was regarded as a good worker. He has no criminal convictions. 28 Mr Serratore has shown no contrition. He continues to maintain his innocence. For the reasons which commended themselves to Newman J, I believe that there are special circumstances. 29 I am, therefore, content to adopt and reaffirm the sentence imposed by Newman J, subject to any adjustment that should be made for the period since that sentence began (6 November 1998), which I will now consider. 30 Is there a basis for further adjusting the non-parole period (which was, on 6 November 1998, 13 years, and due to expire on 5 November 2011). Three arguments were advanced by Mr Toner SC, Counsel for Mr Serratore: · First, a further discount should be given to reflect onerous bail conditions during the period 9 December 1999 to 19 June 2000. · Secondly, through no fault of Mr Serratore's, a retrial was necessary. Five years have elapsed between his arrest and the second conviction. That is a prolonged hardship which should be taken into account. · Thirdly, Mr Serratore during that five years, has undertaken his sentence by instalments. That, it is suggested, is an additional hardship, warranting recognition in the form of some further discount. 31 Dealing with each of these arguments, Newman J, in his remarks on sentence, referred to the following passage from R v Cartwright (1989) 17 NSWLR 243, where Hunt and Badgery-Parker J said this: (at 258/9) "In our view, this period of quasi-custody should have been taken into account in the circumstances - by giving credit for a substantial proportion but not the whole of that period. We assess that a fair allowance in this case for that additional period of eight months is a reduction of six months in the minimum period." 32 Mr Serratore was on bail for broken periods between 2 May 1996 and 6 November 1998. Newman J, as I have mentioned, described the bail conditions as "onerous". He allowed 122 days discount from the sentence (rounding off the year) to reflect that fact. 33 Here, Mr Serratore was given bail on 8 December 1999. He was on bail, therefore, for approximately 6 months. He was subject to the same conditions as had previously been imposed. He was obliged to live at home. He was not permitted to enter licensed premises, or take illegal drugs. He was obliged to observe a curfew from 8.00 pm until 5.00 am, unless in the company of his parents, or their nominee. 34 The circumstances which attracted a discount in Cartwright's case were significantly different from those affecting Mr Serratore. Mr Cartwright was described by Hunt and Badgery-Parker JJ as "only nominally on bail" (at 258). He resided in Sydney, but was obliged to live in Canberra. The obligation arose from the need to provide the police with further assistance. One of the bail conditions required that he obey the reasonable directions of the police, and submit to their supervision. The period during which he was on bail was therefore accurately described as a period of "quasi-custody". 35 The same cannot be said for Mr Serratore. I do not regard the bail conditions as particularly onerous, nor detracting significantly from his freedom. I therefore decline to discount the minimum term upon that basis. Having said that I, nonetheless, will not disturb the characterisation by Newman J, when he previously passed sentence, which I adopt. I do, however, regard that discount as having been very generous. 36 Moving to the second aspect, I accept that a prolonged period of uncertainty is a hardship. I accept, of course, that the need for a retrial came about through no fault on the part of Mr Serratore. However, again I believe that no discount is warranted. Some delay between arrest and trial is inevitable. Part of the delay has been spent in custody. Mr Serratore will be given credit for every day he has served. The period during which he had conditional freedom had advantages and disadvantages. On the one hand he had to suffer prolonged uncertainty. On the other hand, during important years, he had that freedom. 37 I come finally to the suggestion that Mr Serratore is disadvantaged in having to serve his sentence "by instalments". He has served the following periods: 17 May 1995 to 29 June 1995 20 September 1995 to 23 February 1996 6 November 1998 to 8 December 1999 38 I revoked bail during the course of my summing up (on 19 June 2000), and Mr Serratore has, of course, remained in custody since that time. 39 My attention has been drawn to the following passage in Todd v R [1982] 2 NSWLR 517: (at 519/20) "It would be wrong, in my opinion, to disregard the practical situation that the appellant had already served a substantial period of imprisonment in Queensland for offences so closely related in time and character to the Sydney offences… …where there has been a lengthy postponement, whether due to an interstate sentence or otherwise, fairness to the prisoner requires weight to be given to the progress of his rehabilitation during the term of his earlier sentence, to the circumstance that he has been left in a state of uncertain suspense as to what will happen to him when in due course he comes up for sentence on the subsequent occasion, and to the fact that sentencing for a stale crime, long after the committing of the offences, calls for a considerable measure of understanding and flexibility of approach -- passage of time between offence and sentence, when lengthy, will often lead to considerations of fairness to the prisoner in his present situation playing a dominant role in the determination of what should be done in the matter of sentence; at times this can require what might otherwise be a quite undue degree of leniency being extended to the prisoner." 40 See also Mill v The Queen [1988] 166 CLR 59 at 64 ff. 41 It is suggested that, by analogy, the deferment of sentence in this case calls for some adjustment to the non parole period. I disagree. Again, the circumstances in Todd were quite different. Because of the jurisdictional limits of each State, and because the accused committed a number of crimes in different states, the prisoner was dealt with by one State at one time, and another State at a later point in time, even though the offences occurred at much the same time. That is not this case. 42 I believe, therefore, that the appropriate adjustment to Mr Serratore's non parole period, which was fixed by Newman J at 13 years as at 6 November 1998, is by reference to the periods served after that date, before being released to bail. Mr Serratore was in custody after the first trial until 8 December 1999, a period of 1 year and 34 days. I add this to the 1 year discount Newman J gave when he sentenced the prisoner in December 1998. Hence, the non parole period of 14 years is to be adjusted by subtracting a total of 2 years and 34 days, leaving a period of 11 years 331 days to serve before Mr Serratore becomes eligible for parole. The commencement date will be the date that Mr Serratore went into custody, namely 19 June 2000. The head sentence will be 6 years from the time that Mr Serratore becomes eligible for parole. 43 John SERRATORE, I sentence you to imprisonment for 20 years with a non parole period of 14 years. Giving credit for time served, and other appropriate discounts (namely 2 years and 34 days), and calculating from the day you went into custody, namely, 19 June 2000, you will be eligible for release on parole on 17 May 2012. Your sentence will expire on 17 May 2018. **********