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R v Alex Cittadini

R v Alex Cittadini

Case [2009] NSWDC 179 10 July 2009

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CITATION: R v Alex Cittadini [2009] NSWDC 179

HEARING DATE(S): 26/06/09

JUDGMENT DATE:
10 July 2009

JURISDICTION: Criminal

JUDGMENT OF: Norrish QC DCJ

DECISION: Courts 1 & 2
Non parole period of 1 year 6 months to commence 10/07/09 and to expire on 09/01/2011. Balance of sentence of 1 year to expire on 09/01/2012.
Counts 3 & 4
Non parole period of 1 year to commence on 10/01/2010 and to expire on 09/01/2011. Balance of sentence of 1 year 6 months to expire on 09/07/2012. This sentence being partially accumulative upon the earlier sentence.

CATCHWORDS: CRIMINAL LAW - Sentence - Manslaughter by criminal negligence - acts or omissions - totality - concurrency - accumulation - special circumstances - suspended sentence of imprisonment.

LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999

CASES CITED: R v Forbes [2005] NSWCCA 377
R v Olbrich (1999) 199 CLR 270
R v Isaacs (1997) 90 A Crim R 587
R v Connolly [2002] 2 CR.App.R 509
R v Pearce (1998) 194 CLR 610
Veen (No 2) v The Queen (1988) 164 CLR 465
R v Todd (1982) 2 NSWLR 517
Edwards (NSWCCA, 12/12/1996, unreported)
Lawler v The Queen [2007} NSWCCA 85
R v Hall and Hanslo [1999] NSWSC 738
R v ANG [2001] NSWSC 758
R v Way [2004] NSWCCA 131
R v Janceski [2005] NSWCCA 288
R v XX [2009] NSWCCA 115
Cahyadi v R (2007) 168 A Crim R 41
Mill v The Queen (1998) 166 CLR 59
R v Yeoman [2003] NSWSC 194
H v HA [2004] NSWSC 1368

PARTIES: Regina
Alex Cittadini

FILE NUMBER(S): 2008/00001008

COUNSEL: Mr P Barrett - Crown
Mr S Odgers SC with Mr Priestly - Offender

SOLICITORS: Director of Public Prosecutions
Mitchell Lawyers - Offender

Remarks on Sentence

Introduction

1 Alex Cittadini, the prisoner, appears today for sentence in relation to four offences of manslaughter, each committed on 16 September 2002, when the yacht “Excalibur” sank at about 9 pm in darkness approximately 20 miles off Seal Rocks, north of Port Stephens, as a result of which four crew members died. The deceased were Christopher Heyes (aged 51 years), Ann Maree Pope (aged 30 years), Peter McLeod (aged 51 years) and Tracy Luke (aged 32 years). The offence of manslaughter carries a maximum penalty of 25 years imprisonment. The prisoner was found guilty by a jury on 2 April 2009 after a trial of approximately five weeks. A co accused, Adrian Presland, an employee of the prisoner, or his business, was acquitted of the same charges. The circumstances of his acquittal are reflected in a judgment delivered today on his application for a costs certificate pursuant to the Costs in Criminal Cases Act 1967.

2 The prosecution case against the prisoner was that he was guilty of manslaughter, by criminal negligence. As against the prisoner the Crown alleged that because the prisoner had contracted to construct Excalibur through a business known as ‘Applied Alloy Yachts’, which he controlled, he had a duty of care to the deceased persons.…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Alex Cittadini

Details

AGLC: R v Alex Cittadini [2009] NSWDC 179
Case: [2009] NSWDC 179
Decision Date: 10 July 2009

CaseChat Overview and Summary

The defendant, Alex Cittadini, was charged with manslaughter by criminal negligence in the Supreme Court of New South Wales. The charges arose from a series of acts or omissions that led to the death of the victim. The court was required to determine an appropriate sentence, taking into account various legal principles and factors.

The primary legal issues involved in the sentencing were the application of the totality principle, concurrency, accumulation, and special circumstances. The court had to consider whether the sentences for the different counts should run concurrently or consecutively, and if there were any special circumstances that warranted a particular sentence. The defendant's previous criminal history and the nature of the offences were also factors that the court had to weigh.

The court determined that the sentences for Counts 1 and 2 should have a non-parole period of 1 year 6 months, which was to commence on 10/07/09 and expire on 09/01/2011. The balance of the sentence for these counts was to expire on 09/01/2012. For Counts 3 and 4, the court imposed a non-parole period of 1 year, starting on 10/01/2010 and expiring on 09/01/2011. The balance of the sentence for these counts was to expire on 09/07/2012. The sentences for Counts 1 and 2 were to be partially accumulative upon the earlier sentence. This approach was considered appropriate given the totality of the circumstances and the need to ensure just punishment and deterrence.

The court ordered that the defendant serve a non-parole period of 1 year 6 months for Counts 1 and 2, and a non-parole period of 1 year for Counts 3 and 4, with the sentences running partially concurrently. The sentences were designed to reflect the seriousness of the offences while also considering the defendant's potential for rehabilitation.

Orders

Orders of the court

Courts 1 & 2 Non parole period of 1 year 6 months to commence 10/07/09 and to expire on 09/01/2011. Balance of sentence of 1 year to expire on 09/01/2012. Counts 3 & 4 Non parole period of 1 year to commence on 10/01/2010 and to expire on 09/01/2011. Balance of sentence of 1 year 6 months to expire on 09/07/2012. This sentence being partially accumulative upon the earlier sentence.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Citations

AGLC Citation

R v Alex Cittadini [2009] NSWDC 179

Most Recent Citation

Moananu v R [2022] NSWCCA 85

Cases citing this decision · 1 of 1 shown

Moananu v R
[2022] NSWCCA 85 Para 161

…2006] NSWCCA 262 , Lawler v R [2007] NSWCCA 85; (2007) 169 A Crim R 415, R v Borkowski [2009] NSWCCA 102; (2009) 195 A Crim R 1, R v Alex Cittadini [2009] NSWDC 179, Duncan v R [2012] NSWCA 78, Spark v R [2012] NSWCCA 140 and Crowley v R [2021] NSWCCA 45, R v Wright [2013] NSWCCA 82; (2013) 229 A Crim R 245, Rhodes…

View all 1 citing cases →

Cases cited in this decision · 30 of 30 shown

R v Todd
[2024] NZHC 897

…v Isaacs (1997) 90 A Crim R 587 R v Connolly [2002] 2 CR.App.R 509 R v Pearce (1998) 194 CLR 610 Veen (No 2) v The Queen (1988) 164 CLR 465 R v Todd (1982) 2 NSWLR 517 Edwards (NSWCCA, 12/12/1996, unreported) Lawler v The Queen [2007} NSWCCA 85 R v Hall and Hanslo [1999] NSWSC 738 R v ANG [2001] NSWSC 758 R v Way [2…
R v Carberry
[2023] ACTCA 22 Para 48

…(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 whe…
R v Holder
[2019] SASCFC 73

…of “post – Pearce” principles for sentencing for multiple offences, arising out of the one action, or in this case, omission. In R v Holder (1983) 3 NSWLR 245 (at 260), Street CJ discussed the principle in practical terms, albeit pre Pearce. In a nutshell his Honour for the Court held:…
R v XX
[2009] NSWCCA 115

…Queen [2007} NSWCCA 85 R v Hall and Hanslo [1999] NSWSC 738 R v ANG [2001] NSWSC 758 R v Way [2004] NSWCCA 131 R v Janceski [2005] NSWCCA 288 R v XX [2009] NSWCCA 115 Cahyadi v R (2007) 168 A Crim R 41 Mill v The Queen (1998) 166 CLR 59 R v Yeoman [2003] NSWSC 194 H v HA [2004] NSWSC 1368 PARTIES: Regina Alex Citta…
R v HA
[2008] NSWSC 1368

…The Queen [2007] NSWCCA 85, R v Susan Hall and Collin Hanslow [1999] NSWSC 738, R v ANG [2001] NSWSC 758, R v Yeoman [2003] NSWSC 194, R v HA [2008] NSWSC 1368), even where amongst those cases there were sentences imposed for negligent manslaughter, the circumstances were that the offender was directly aware of esse…
Vaovasa v R
[2007] NSWCCA 253 Para 12

…f 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 ris…
Lawler v R
[2007] NSWCCA 85

…an individual victim. It should be noted that almost universally throughout the various authorities to which I was taken (Lawler v The Queen [2007] NSWCCA 85, R v Susan Hall and Collin Hanslow [1999] NSWSC 738, R v ANG [2001] NSWSC 758, R v Yeoman [2003] NSWSC 194, R v HA [2008] NSWSC 1368), even where amongst tho…
Nguyen v R
[2007] NSWCCA 14 Para 12

…ant 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 o…
Cahyadi v R
[2007] NSWCCA 1

…There is also the judgment of Howie J in Cahyadi v Regina (2007) 168 A Crim R 41 (at 47).…
R v MMK
[2006] NSWCCA 272 Para 11

…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 cri…
Gonzalez v R
[2006] NSWCCA 4

…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 wher…
R v Forbes
[2005] NSWCCA 377

…ation - special circumstances - suspended sentence of imprisonment. LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999 CASES CITED: R v Forbes [2005] NSWCCA 377 R v Olbrich (1999) 199 CLR 270 R v Isaacs (1997) 90 A Crim R 587 R v Connolly [2002] 2 CR.App.R 509 R v Pearce (1998) 194 CLR 610 Veen (No 2) v The Q…
R v Janceski
[2005] NSWCCA 288

…unreported) Lawler v The Queen [2007} NSWCCA 85 R v Hall and Hanslo [1999] NSWSC 738 R v ANG [2001] NSWSC 758 R v Way [2004] NSWCCA 131 R v Janceski [2005] NSWCCA 288 R v XX [2009] NSWCCA 115 Cahyadi v R (2007) 168 A Crim R 41 Mill v The Queen (1998) 166 CLR 59 R v Yeoman [2003] NSWSC 194 H v HA [2004] NSWSC 1368 P…
R v Wilson
[2005] NSWCCA 219 Para 38

…posed 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.…
R v Tadrosse
[2005] NSWCCA 145 Para 28

…pletely 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 pa…
R v Price
[2004] NSWCCA 186 Para 46

…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 Gon…
R v Hoerler
[2004] NSWCCA 184

…vity it may vary, as has been pointed out, from a joke gone wrong to facts just short of murder (R v Weinman (1987) 49 SASR 248 at 252; R v Hoerler [2004] NSWCCA 184; (2004) 147 A Crim R 520 at [39]).” [133]…
R v Way
[2004] NSWCCA 131

…17 Edwards (NSWCCA, 12/12/1996, unreported) Lawler v The Queen [2007} NSWCCA 85 R v Hall and Hanslo [1999] NSWSC 738 R v ANG [2001] NSWSC 758 R v Way [2004] NSWCCA 131 R v Janceski [2005] NSWCCA 288 R v XX [2009] NSWCCA 115 Cahyadi v R (2007) 168 A Crim R 41 Mill v The Queen (1998) 166 CLR 59 R v Yeoman [2003] NSWSC…
R v Trevenna
[2004] NSWCCA 43

…mstances can vary over a wide range. This is also true in the case of manslaughter by reason of excessive self-defence (seeR v Trevenna [2004] NSWCCA 43; (2003) 149 A Crim R 505).” [135]…
Regina v Sharon Kaye Yeoman
[2003] NSWSC 194

…] NSWCCA 131 R v Janceski [2005] NSWCCA 288 R v XX [2009] NSWCCA 115 Cahyadi v R (2007) 168 A Crim R 41 Mill v The Queen (1998) 166 CLR 59 R v Yeoman [2003] NSWSC 194 H v HA [2004] NSWSC 1368 PARTIES: Regina Alex Cittadini FILE NUMBER(S): 2008/00001008 COUNSEL: Mr P Barrett - Crown Mr S Odgers SC with Mr Priestly -…
Regina v Weldon
[2002] NSWCCA 308 Para 45

…iminality 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…
Wong v The Queen
[2001] HCA 64

…another. Yet from these the sentencing judge must distill an answer which reflects human behaviour in the time or monetary units of punishment.” (Wong v The Queen (2001) 207 CLR 584 at [77])…
Regina v Ang
[2001] NSWSC 758

…R v Todd (1982) 2 NSWLR 517 Edwards (NSWCCA, 12/12/1996, unreported) Lawler v The Queen [2007} NSWCCA 85 R v Hall and Hanslo [1999] NSWSC 738 R v ANG [2001] NSWSC 758 R v Way [2004] NSWCCA 131 R v Janceski [2005] NSWCCA 288 R v XX [2009] NSWCCA 115 Cahyadi v R (2007) 168 A Crim R 41 Mill v The Queen (1998) 166 CLR…
R v Olbrich
[1999] HCA 54

…- suspended sentence of imprisonment. LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999 CASES CITED: R v Forbes [2005] NSWCCA 377 R v Olbrich (1999) 199 CLR 270 R v Isaacs (1997) 90 A Crim R 587 R v Connolly [2002] 2 CR.App.R 509 R v Pearce (1998) 194 CLR 610 Veen (No 2) v The Queen (1988) 164 CLR 465 R v Tod…
R v Hall
[1999] NSWSC 738

…Queen (1988) 164 CLR 465 R v Todd (1982) 2 NSWLR 517 Edwards (NSWCCA, 12/12/1996, unreported) Lawler v The Queen [2007} NSWCCA 85 R v Hall and Hanslo [1999] NSWSC 738 R v ANG [2001] NSWSC 758 R v Way [2004] NSWCCA 131 R v Janceski [2005] NSWCCA 288 R v XX [2009] NSWCCA 115 Cahyadi v R (2007) 168 A Crim R 41 Mill v…
R v Pearce
[1998] QCA 325

…ider the “totality of the criminality” in the context of fixing an appropriate sentence for each offence in accordance with the majority views In R v Pearce (1998) 194 CLR 610 (at [45]). This is an expression which in many respects defies precise definition but has been the subject of comment in a range of cases inc…
Pearce v The Queen
[1998] HCA 57

…t [45]). This is an expression which in many respects defies precise definition but has been the subject of comment in a range of cases including Pearce v The Queen (1998) 194 CLR 610, particularly in the decision of the majority at [45]. That decision of the High Court, coming in the context of an appeal against a refusal…
Mill v The Queen
[1988] HCA 70

…2001] NSWSC 758 R v Way [2004] NSWCCA 131 R v Janceski [2005] NSWCCA 288 R v XX [2009] NSWCCA 115 Cahyadi v R (2007) 168 A Crim R 41 Mill v The Queen (1998) 166 CLR 59 R v Yeoman [2003] NSWSC 194 H v HA [2004] NSWSC 1368 PARTIES: Regina Alex Cittadini FILE NUMBER(S): 2008/00001008 COUNSEL: Mr P Barrett - Crown Mr S…
Veen v The Queen (No 2)
[1988] HCA 14

…Olbrich (1999) 199 CLR 270 R v Isaacs (1997) 90 A Crim R 587 R v Connolly [2002] 2 CR.App.R 509 R v Pearce (1998) 194 CLR 610 Veen (No 2) v The Queen (1988) 164 CLR 465 R v Todd (1982) 2 NSWLR 517 Edwards (NSWCCA, 12/12/1996, unreported) Lawler v The Queen [2007} NSWCCA 85 R v Hall and Hanslo [1999] NSWSC 738 R v ANG…
H v HA
[2004] NSWSC 1368

…i [2005] NSWCCA 288 R v XX [2009] NSWCCA 115 Cahyadi v R (2007) 168 A Crim R 41 Mill v The Queen (1998) 166 CLR 59 R v Yeoman [2003] NSWSC 194 H v HA [2004] NSWSC 1368 PARTIES: Regina Alex Cittadini FILE NUMBER(S): 2008/00001008 COUNSEL: Mr P Barrett - Crown Mr S Odgers SC with Mr Priestly - Offender SOLICITORS: Dir…

Legislation cited in this decision · 2

Crimes (Sentencing Procedure) Act 1999 (NSW)
1 mention
Criminal Cases Act 1967 (NSW)
1 mention

CITATION:	R v Alex Cittadini [2009] NSWDC 179
HEARING DATE(S):	26/06/09
JUDGMENT DATE:	10 July 2009
JURISDICTION:	Criminal
JUDGMENT OF:	Norrish QC DCJ
DECISION:	Courts 1 & 2 Non parole period of 1 year 6 months to commence 10/07/09 and to expire on 09/01/2011. Balance of sentence of 1 year to expire on 09/01/2012. Counts 3 & 4 Non parole period of 1 year to commence on 10/01/2010 and to expire on 09/01/2011. Balance of sentence of 1 year 6 months to expire on 09/07/2012. This sentence being partially accumulative upon the earlier sentence.
CATCHWORDS:	CRIMINAL LAW - Sentence - Manslaughter by criminal negligence - acts or omissions - totality - concurrency - accumulation - special circumstances - suspended sentence of imprisonment.
LEGISLATION CITED:	Crimes (Sentencing Procedure) Act 1999
CASES CITED:	R v Forbes [2005] NSWCCA 377 R v Olbrich (1999) 199 CLR 270 R v Isaacs (1997) 90 A Crim R 587 R v Connolly [2002] 2 CR.App.R 509 R v Pearce (1998) 194 CLR 610 Veen (No 2) v The Queen (1988) 164 CLR 465 R v Todd (1982) 2 NSWLR 517 Edwards (NSWCCA, 12/12/1996, unreported) Lawler v The Queen [2007} NSWCCA 85 R v Hall and Hanslo [1999] NSWSC 738 R v ANG [2001] NSWSC 758 R v Way [2004] NSWCCA 131 R v Janceski [2005] NSWCCA 288 R v XX [2009] NSWCCA 115 Cahyadi v R (2007) 168 A Crim R 41 Mill v The Queen (1998) 166 CLR 59 R v Yeoman [2003] NSWSC 194 H v HA [2004] NSWSC 1368
PARTIES:	Regina Alex Cittadini
FILE NUMBER(S):	2008/00001008
COUNSEL:	Mr P Barrett - Crown Mr S Odgers SC with Mr Priestly - Offender
SOLICITORS:	Director of Public Prosecutions Mitchell Lawyers - Offender