R v Alex Cittadini

R v Alex Cittadini - [2009] NSWDC 179 - NSWDC 2009 case summary — Zoe

[41]

29 Be that as it may, I am required to have regard to the decision of the Court of Criminal Appeal of R v Janceski [2005] NSWCCA 288 (approved in Gonzalez [2006] NSWCCA 4), where Hunt AJA said in a case where at first instance involved concurrent sentences arising from two counts of dangerous driving causing death where the respondent to the Crown appeal was involved in an impact with another vehicle in which he caused the death of the driver of the other vehicle and a passenger in that other vehicle. His Honour said, "…. There are at least two distinct categories of cases in which problems with concurrency arise. The first is when the offender is being sentenced for discrete offences committed on different occasions. The concurrency of sentences for that category is now governed largely by Pearce v The Queen (1998) 194 CLR 610, which overruled the practice previously common in this State of fixing one of several concurrent sentences to reflect the total criminality of the offender for all the offences. The second category is where the one incident or enterprise gives rise to different charges, usually where there is more than one victim. That category has at least two sub-categories. An example of one of those subcategories is where the offender repeatedly fires a gun, injuring a number of different persons, each as a result of a different action by the offender, although part of the one incident, when it is appropriate to take into account the fact that the offences were substantially contemporaneous and connected …. The other sub-category is where the one action by the offender causes a number of people to be injured and where separate charges are laid in relation to each victim. That is the present case." [21] "In this second sub-category, it is easy for the sentencing judge to consider the sentencing process as being related to a single action which has created multiple victims, and therefore to fall into the error of imposing wholly concurrent sentences, each of them having been assessed on the basis that the existence of the multiple victims aggravated that sentence. Section 21A(2)(m) of the Crimes (Sentencing Procedure) Act 1999, which identifies the fact that an offence involved multiple victims as an aggravating factor, may (read in isolation) unfortunately lend credence to that approach. …. Such an approach overlooks the fact that, in a case such as the present, there are two counts, each identifying one of the victims and each requiring a separate sentence. It is completely contrary to principle to aggravate each of those sentences on the basis that each offence resulted in multiple victims: Regina v Tadrosse [2005] NSWCCA 145 at [28]-[29]". [22] "In a case falling within the second sub-category, separate sentences should usually be fixed which are made partly concurrent and partly cumulative, each such sentence being appropriate to the existence of only one victim and the aggregate of the sentences reflecting the fact that there are multiple victims resulting from the same action by the offender. The extent to which there should be an overlap in the partial accumulation will depend on what is required to represent the totality of the criminality involved in the one act of the offender. This, it seems to me, follows naturally from Pearce at [45]-[48] - and cases such as Regina v Weldon (2002) 136 A Crim R 55 at [46]-[53] and Regina v Price [2004] NSWCCA 186 at [38], [49] - when applying the general principles relating to the aggregation of sentences to this particular sub-category". [23] (See also Howie J at [27] in Gonzalez ).

[42]

30 To the judgments which were raised in the sentencing of this matter might be added R v XX [2009] NSWCCA 115 in the judgment of Hall J for the Court of Criminal appeal at [52] "(1) It is well established that questions of accumulation are, subject to the application of established principle, discretionary. What is important is that, firstly, an appropriate sentence is imposed in respect of each offence; and, secondly, that the total sentence imposed properly reflects the totality of the criminality: Regina v Wilson [2005] NSWCCA 219 at [38] per Simpson, Barr and Latham JJ agreeing. (2) In Regina v Weldon; Regina v Carberry (2002) 136 A Crim R 55, Ipp JA at [48] stated that it is "not infrequent that, where the offences arise out of one criminal enterprise, concurrent sentences will be imposed" but his Honour observed that "this is not an inflexible rule" and "[t]he practice should not be followed where wholly concurrent sentences would fail to take account of differences in conduct". (3) The question as to whether sentences in respect of two or more offences committed in the course of a single episode or a criminal enterprise or on a particular day should be concurrent or at least partly accumulated is to be determined by the principle of totality and the relevant factors to be taken into account in the application of that principle. See observations in this respect of Howie J in Nguyen v Regina [2007] NSWCCA 14 at [12]. (4) In applying the principle of totality, the question to be posed is whether the sentence for one offence can comprehend and reflect the criminality of the other offence. See generally Regina v MMK [2006] NSWCCA 272 at [11] and [13], Cahyadi (supra) at [12] and [27] and Vaovasa v Regina [2007] NSWCCA 253. (5) If the sentence for one offence can comprehend and reflect the criminality of the other, then the sentences ought to be concurrent, otherwise there is a risk that the combined sentences will exceed that which is warranted to reflect the totality of the two offences: Cayhadi (supra) per Howie J at [27]. (6) If not, the sentence should be at least partially cumulative otherwise there is a risk that the total sentence will fail to reflect the total criminality of the two offences. This is so regardless of whether the two offences represent two discrete acts of criminality or can be regarded as part of a single episode of criminality: Cayhadi (supra) per Howie J at [27]. (7) Whether the sentence for one offence can comprehend and reflect the criminality of the other calls for the identification and an evaluation of relevant factors pertaining to the offences. These will include the nature and seriousness of each offence.

[59]

46 I heard oral evidence from Peter Ellett, a retired businessman and one time owner and manager of very large brick construction companies. He was impressive. One business of which he was the Chief Executive Officer before he retired had five hundred employees and an annual turn over of over $90 million. There were other companies beforehand that he managed or owned with significant numbers of employees and large turn over. In his business career over thirty years he had dealt with the Cittadini family whose business appears to have largely been concerned with the engineering of brick making equipment. Mr Ellett attested to the high standards of the Applied Group of companies and the honesty and professionalism of Mr Cittadini in his business and technical dealings. Angelo Greco, now the Chief Executive Officer of the "Applied Group" of companies, had worked with Mr Cittadini for five years before giving evidence and spoke of his professionalism, his ethical approach to business and his outstanding relationship with his staff. He said that the prisoner embraced resolving problems and achieving perfection in his work, sometimes going back to redesign items of equipment notwithstanding the financial loss. He noted the adverse reaction upon the stability of the corporation's business from Mr Cittadini's conviction. Keith Sherwood, another businessman but a competitor in providing equipment for the heavy clay industry since 1978, had in fact before that worked for Mr Cittadini's father and had known Mr Cittadini since he was a child. He said that the reputation of the Cittadini companies in the industry was of the "highest level", the work produced by the Applied Group was of the "highest quality" and Mr Cittadini was highly regarded for his business ethics. He was a lifetime sailor and had seen three boats manufactured by the Applied Group before the manufacture of Excalibur, and he thought that the other boats had been built, from his experience, to a "high standard".

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (72 paragraphs)

Parties

Cases Cited (27)

Cited By (1)