Regina v Tony RUGARI [2004] NSWSC 1126

New South Wales Supreme Court

CITATION : Regina v Tony RUGARI [2004] NSWSC 1126 HEARING DATE(S) : 07/06/04, 12/11/04 JUDGMENT DATE : 26 November 2004

JUDGMENT OF : Barr J at 1 DECISION : Offender sentenced for aggravated robbery to a fixed term of 4 years' imprisonment and for manslaughter to a partially concurrent term of 7 years' imprisonment. Effective term is 8 years and non-parole period is 5 years.

CATCHWORDS : Criminal law - sentencing - manslaughter - aggravated robbery. PARTIES : Regina v Tony RUGARI FILE NUMBER(S) : SC 2003/92 COUNSEL : P Conlon D Brezniak SOLICITORS : S Kavanagh Legal Aid Commission of NSW

- 9 - IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

GRAHAM BARR J

26 NOVEMBER 2004

2003/92 REGINA V TONY RUGARI

SENTENCE 1 HIS HONOUR: The offender, Tony Rugari, is to be sentenced for the manslaughter of Peter Laliotitis and for robbing him in circumstances of aggravation, namely by using personal violence, of a telephone and a gold chain. He asks the Court to take into account, in sentencing him, of his possession of 1 gram of cannabis leaf and 3.9 grams of pseudoephedrine. 2 The offender lived at a caravan park at Miranda. So did a twelve year old girl, whom I shall call X, and a group of other young people. They all knew each other. The offender was a very well-built eighteen year old. The deceased, Peter Laliotitis, was twenty years old and lived at Campbelltown. Not long before 6 January 2003 the deceased and X spoke to one another a number of times on the telephone. Their first contact may have been accidental. They may also have met. There is evidence to show that the deceased was told that X was thirteen years old but that he did not believe it and thought that she was sixteen years old. The deceased and X arranged that he should attend the caravan park. It seems that the offender also spoke to him on the telephone and gave him directions about how to get there. 3 The deceased drove to Miranda and arrived at the caravan park at 9:30pm on 6 January. He was met by a group of young people, including the offender, but X was not present. The young people told him where to go to find X's caravan. He drove his car to the rear of the caravan park and the others followed him on foot. The offender believed that the deceased was intending to have sexual intercourse with X. He considered, in view of X's age, that that was inappropriate. He referred to the deceased as a paedophile. Although he could have told X's mother, who lived at the caravan park, or other adults about what he believed might happen, he did not do so. He laid into the deceased and gave him a beating. I do not think that he intended to inflict any lasting or serious injury on the deceased. He intended to hurt him and ensure that he went away and did not come back. The beating he delivered was savage, however, and he hit him many, perhaps fifteen, times. The deceased never retaliated. He merely said that he did not want trouble. 4 The deceased returned to his car and got into it but the offender stole his keys and told him that he would return them only if the deceased handed over his gold chain. The deceased handed it over, and the offender took his mobile telephone as well. 5 The offender gave the chain to a male member of the group and told a female member that if anything happened with the police she was to say that the deceased was attacking her and that the offender and the male member had seen the attack and that that was why the offender had attacked the deceased. 6 The deceased drove home to Campbelltown. When he arrived he was in a bad way and collapsed in the garage of the house. His mother and then his sister went to assist him. They took him to his room and called the ambulance. Ambulance officers attended and took him to hospital. When he arrived there he was unconscious. He was found to have an acute left-sided extradural haematoma. He underwent two operations to relieve pressure on the brain. He was kept in the intensive care unit. Eventually, on 13 January 2003, he died because resulting changes in brain tissue led to lung failure, possibly associated with cardiac arrest. 7 On 1 October 2003 the offender was committed to this Court for trial on a charge of murder and a charge of robbery. On 5 December he pleaded not guilty to both charges and his trial was fixed to commence on 3 May 2004. On 6 February the trial date was changed to 7 June. There were still pleas of not guilty but the parties were conferring and defence counsel told the Court that there would probably not be a trial. On 7 June the offender pleaded not guilty of the murder of the deceased but guilty of his manslaughter and guilty of his robbery. The Crown accepted the plea in discharge of the indictment. 8 Substantial issues of fact were raised on the sentence hearing and a number of witnesses gave evidence. Two of them, the mother and sister of the deceased, were cross-examined by counsel for the offender. The intention was to enquire into the cause of the deceased's head injury. The deceased's mother, Mrs Maria Laliotitis, had made two statements for the police. In the second one, made on 20 May 2004, she had said this - Peter fell to the ground, onto his knees. This did not happen very quickly but took some seconds. Peter slumped to his knees, he tried to support himself by putting out his hands. Peter was supporting his weight in this manner. He remained in this position for some time… 9 Counsel asked Mrs Laliotitis whether police had asked her to make her second statement because there had been a suggestion that the deceased had hit his head on the garage floor. In the end the evidence was inconclusive. Mrs Laliotitis may not have understood what she was being asked. Counsel also cross-examined Mrs Helen Mihas, the sister of the deceased, about the position the deceased was in when she entered the garage and saw him. Both witnesses appeared to find giving evidence an ordeal. 10 There was no submission as to any conclusion that the Court ought to draw from the evidence so adduced. 11 A second issue arose as to the use the Court might make of a transcript of an interview between investigating police officers and the offender. On 8 January 2003 the offender was arrested and charged with the robbery of the deceased. He denied the robbery. Before and during the electronically recorded interview that followed he made a number of statements justifying his attack on the deceased as a paedophile. It was submitted that when the interview was held the offender had not been charged with any offence other than the robbery and that there had been no suggestion that the police would charge him with any other offence, other than perhaps for possessing any drug they found as they searched. Throughout the interview the deceased was lying in hospital in a critical condition but the police did not tell the offender until the interview was almost over. It was submitted that that was unfair and that the answers given in the interview were likely to be unreliable and should be rejected as inadmissible or in the exercise of the Court's discretion. The submission implied an application for a direction under s4(2) Evidence Act that the Act apply. 12 Even if the Evidence Act applied, I would not regard the evidence as inadmissible or unreliable or reject it in the exercise of my discretion. I accept that when the deceased drove away from the caravan park after the beating, the offender had no reason to think that he was seriously hurt. There was no evidence that he otherwise found out. I accept the submission that the offender acted as he did partly out of indignation that the deceased should be contemplating having sexual intercourse with a girl as young as X and partly because he wanted to show off to the assembled company of young people, but I do not think that his answers were for those reasons any less reliable. On the contrary, the offender asserted what I accept as true, namely that he could have killed the deceased but did not do so because all he wanted to do was "smash him around a bit". That answer assists his case and should be given weight. 13 The offender was born on 14 October 1984. He was the eldest of seven children. His father was a violent man and often physically abused him. He was difficult to manage. The Department of Community Services removed him from the care of his parents when he was five years old and placed him in foster care. He was diagnosed at an early age with attention deficit hyper-activity disorder. He left school and his foster home when he was twelve years old. Sometimes he lived with his mother and sometimes with his father. 14 He fathered a child when he was fourteen years old. That child is now six years old and has been removed from the mother's care. The offender does not see it. He has been in a relationship with another young woman but that relationship has come to an end. He has been a consumer of illegal drugs for a number of years. 15 It seems that he is deaf in one ear and partially deaf in the other. He usually wears a hearing aid. 16 During a period of a little under three months between August and October 2001 the offender committed a substantial number of offences of assaulting police officers, maliciously damaging property, resisting or hindering police, assault, demanding property with menaces, having custody of offensive instruments and using an offensive weapon to prevent his lawful apprehension or detention. The Children's Court dealt with him a number of times, leniently at first but ultimately by the imposition of a series of control orders, the longest of which was twelve months, dating from October 2001. After his release on the expiry of the last of the control orders he spent a few months in the community. He resided at the caravan park. He was employed by McDonalds, a hamburger chain, liked the work and was promoted to assistant manager. He stayed out of trouble until he committed these offences. 17 It was submitted that the plea of guilty of manslaughter was timely, particularly in view of the early indication made by defence counsel that the matter would probably not go to trial. I accept that submission. 18 The offender is entitled to the utilitarian value of the pleas of guilty. The State was saved the expense of a trial which was estimated to last three weeks. I have taken that matter into account. I have tempered the reduction I would otherwise have allowed because the mother and the sister of the deceased were required to come to Court to be cross-examined. I do not by these remarks intend to imply that the offender was not entitled to cross-examine them. That was his right. It is simply that his exercise of that right removed a benefit that would have followed. 19 The author of the Pre-Sentence Report stated that the offender told her that he believed that the deceased was a paedophile and justified the attack for that reason. He denied that what he did resulted in the death of the deceased. He denied robbing the deceased. Counsel for the offender submitted that I should give little or no weight to that part of the report, but I see no reason to deal with it other than at face value. Of course, the offender's adherence to his pleas of guilty and his continued conduct of the hearing before me show that he no longer maintains that he did not kill the deceased and did not rob him, so no question arises about his guilt. The importance of the evidence is twofold. It shows that he lacks contrition and that he has made little progress towards rehabilitation. 20 It was submitted that if the matter had gone to trial there would have been good prospects of an acquittal in view of the criticism directed at the manner in which the admissions in the interview were obtained. I do not accept that submission. I think that the chances of having the interview excluded would have been small. Besides, several witnesses saw the offender beat the deceased and rob him. One of them would have given evidence of the story the offender concocted to be told to the police if they should enquire. A pawn ticket for the mobile phone was found in the offender's possession. His thumbprint was found on a card in the deceased's wallet. The Crown case was strong one, though the Crown would never have succeeded on a charge of murder. The pleas of guilty are no evidence of remorse. My conclusion about that is supported by the offender's statements of justification and denial to the Probation and Parole officer. 21 The Probation and Parole officer considers that intervention is required to teach or help the offender to control his anger. His mother told the officer that he would often punch holes in walls and become verbally abusive, though he has never been violent towards her. She, too, thought that he needed assistance to control his anger. 22 A report was received from Ms Ryder, psychologist. She tested the offender. She thought him suspicious, defensive and sensitive to criticism. He was abrasive, hostile, irritable and quick to find fault. He was resentful and discontented. Ms Ryder concluded that the test results indicated an acutely paranoid and possible delusional state, but I have reservations in accepting that opinion in view of the opinions of the psychiatrist, Dr Greenberg. Ms Ryder's report is of some assistance, but since it was written before the offender pleaded guilty it lacks any consideration of the offender's prospects of rehabilitation. 23 Dr Greenberg, psychiatrist, saw the offender three times, the third time after he had decided to plead guilty. His report was tendered. He said that the offender had a personality disorder with antisocial features. He was prone to be violent, to use illegal drugs and to abuse alcohol. His insight into his behaviour was poor and his prognosis depended on his developing an insight into his psychological and psychiatric difficulties and changing his attitude and behaviour. Dr Greenberg put the offender into that group of offenders who present a medium to high risk of re-offending. 24 I think that there are some slim prospects of rehabilitation in view of the period of employment during which the offender committed no offences at all, but he has a long way to go before he becomes rehabilitated. He must begin by acknowledging responsibility for the offences he has committed. 25 The evidence does not enable me to make any precise finding about when the offender decided to rob the deceased. I regard it as an opportunistic offence, carried out without much forethought and without planning.