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A SUPREME Court judge yesterday accused the Director of Public Prosecutions of adversely affecting the administration of justice.

Justice David Harper criticised the DPP while sentencing a teenager for his part in the fatal gang bashing of a university researcher.

He said Jeremy Rapke, QC, appeared to have fed the controversy by not revealing he had agreed to a less serious murder charge.

* Full text: Read Justice Harper's sentence here

He said the teen and the gang's leader were accused of unintentionally murdering Dr Zhongjun Cao while robbing him.

"Ordinarily . . . 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," Justice Harper said.

He also attacked the Herald Sun's reporting of his sentencing of the gang leader, which generated hundreds of complaints of leniency.

Last month, the judge sentenced the gang's leader, John Caratozzolo, to 15 years' jail with a minimum non-parole term of 10 years.

Caratozzolo, now 21, laughed and kicked Dr Cao's head as he lay on the ground after being attacked in Footscray last year. The 41-year-old academic died four days later.

Yesterday Justice Harper sentenced the teen who picked up Dr Cao and dropped him on his head in the attack by a gang of eight, then stole his mobile phone and wallet, to 10 1/2 years' jail with a minimum non-parole term of six years.

The teen, who is almost 18, cannot be named for legal reasons.

Justice Harper told him the dropping of Dr Cao resulted in his head hitting the footpath or a brick fence hard enough to kill him.

He said his part in a second attack the same night was beyond excuse.

No society could tolerate the violence the youth was part of.

The second victim, Bhinesh Mosaheb, was also alone when the teen attacked from behind, lifted him and dropped him. Justice Harper said Mr Mosaheb suffered headaches, neck pain and a twisted spine and feared it could happen again.

He said until January 22 last year the teen had had an unblemished record, no known involvement with drugs and had never come to the notice of police.

He had done well at school, was a promising cricketer and had completed many certificates while in a youth justice centre since his arrest.

Justice Harper said the teen had made full admissions and was remorseful.

Outside court a family friend of Dr Cao, Dr Wellington Lee, said the six-year minimum was "a rap over the knuckles". "When do we get a law that serves justice and not just the law?" he asked.

Justice Harper said a Herald Sun headline "DPP to review 10-year sentence" was misleading. "The minimum term is not the sentence. To refer to it as if it were is designed to generate controversy, not report news," he said.

(Although the Herald Sun headline referred to the minimum, the story said, "Caratozzolo was jailed for 15 years with a minimum of 10".)

The judge said a graph showing there had been only five shorter minimum terms for murder in the past five years was also misleading.

He said only in few of the 129 murder sentences in that time had there been no intention to kill.

Justice David Harper criticised DPP, Herald Sun in sentence | Herald Sun


Good!!! It's about time a judge was able to speak up about what newspapers write.

THE full sentence handed down by Judge Harper in the case of the DPP v (NAME DELETED) over the murder of Dr Cao Zhongjun.

obviously our laws are different sentencing is a metter of public record.in the true sense

Justice David Harper&squo;s full sentence | Herald Sun



Doesn't look to me as if the boy got off lightly

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, (NAME DELETED), 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, (NAME DELETED)) 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 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.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.




I'm glad that this was said . Another words if you're going to open your mouth and use justice as an excuse ....then get it right