R v Alex Cittadini

[2009] NSWDC 179

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. That, by his act or omission, he was in breach of that duty of care, causing the death of those persons, the acts or omissions meriting criminal punishment because they fell so far short of the standard of care that a reasonable person in the position of the accused would have exercised in the circumstances. This breach of duty involved such a foreseeable high risk by such a reasonable person that death or really serious bodily harm would follow and the degree of negligence involved in either the acts or omissions of the prisoner were so serious that they should be treated as criminal conduct.

3 The Crown case against the accused particularly alleged that he either:

i. delivered the yacht knowing that the keel had been cut horizontally and then welded (the negligent acts) or, alternatively,

ii. as Manager of the business or company that constructed the yacht, he was under a duty to implement a system in the construction of the yacht that incorporated adequate and proper supervision and quality control, he failed to implement such a system, the failure caused, or resulted in, the delivery of a yacht with a defective keel that was the cause of the deaths.

4 The Crown case against Mr Presland was that he had cut and then welded the keel for one of four reasons posited by the expert metallurgist retained by the Crown and that he had done so on the instructions of Mr Cittadini or of his own motion. The weight of circumstances, in a circumstantial evidence case, to implicate Mr Presland, pointed to his innocence. Of course, the acquittal of Mr Presland does not automatically defeat the Crown case against Mr Cittadini as having directed the horizontal cut to be made, but it does, in reality, weaken that aspect of the Crown allegation against him.

General principles on fact finding

5 It is for the Court to determine the facts upon which the prisoner is to be sentenced, consistent with the verdicts of the jury. (R v Isaacs (1997) 90 A Crim R 587). Matters of aggravation require proof by the Crown beyond reasonable doubt and matters of mitigation require proof by the accused on the balance of probabilities, determined in accordance with the decision of the High Court in R v Olbrich (1999) 199 CLR 270. In determining the facts that may be in dispute in this matter, the Court has had regard to both the oral and written submissions of the Crown and the prisoner.

Sentencing Principles for Manslaughter

6 The position so far as general sentencing principles are concerned for the crime of manslaughter are summarised in the judgment of Spigelman CJ in R v Forbes [2005] NSWCCA 377 at [133]-[135] and [141].

7 His Honour said, with the agreement of McClellan CJ at CL and Hall J:

“As has frequently been stated, manslaughter is almost unique in its protean character as an offence. (See in particular the observations of Gleeson CJ in R v Blacklidge (unreported, Court of Criminal Appeal, 12 December 1995, esp pp2-3.) In its objective gravity 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]

“It is also relevant to recognise that, although manslaughters can be characterised in different ways, particularly in the various contexts which may reduce what would otherwise be a murder to manslaughter, the degree of variation within any such category is generally also over a wide range. Matters of fact and degree arise in all categories of manslaughter.” [134]

“For example where diminished responsibility is relied upon, the extent to which culpability is ‘diminished’ can vary considerably from case to case. Similarly, although it is possible to characterise a number of cases as “child-killing by a parent or carer”, it may never be possible to identify a sentencing pattern or tariff from the whole body of such cases. (See Hoerler supra.) This is not only because the number of cases in a particular category may be too few to establish a pattern or tariff. It is also because, within any such category, the relevant circumstances 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]

Finally his Honour said at [141]

“I accept that the permissible sentencing range for manslaughter must be regarded as particularly wide.”

His Honour concluded:

“(The) agreed facts (on appeal) indicate a level of possibility, perhaps even a probability, with respect to both the possession of the knife and its use. There is nothing, however, to indicate precisely how probable was the Appellant’s reason to expect either of these matters. In particular, it is not clear how certain he was that one of his friends had a knife at the time.” [141]

There the Court was concerned to measure culpability by regard to the relevant knowledge, or extent of foresight, of consequences.

The Facts of the Case

8 The prisoner was the Managing Director of a group of companies that can be called generically “Applied Engineering”. They carried on business in Bayswater in the Melbourne metropolitan area in Victoria. This was a business concerned with engineering projects, primarily to construct industrial manufacturing equipment, in industries such as brick making. Mr Cittadini had contracted with Alan Saunders, a businessman, to build the yacht Excalibur for him upon designs supplied by a naval architect (David Lyons). The construction of the yacht included the construction of a keel that could retract into the hull to enable the yacht to moor in shallow waters. Both Mr Saunders and Mr Cittadini were members of the Royal Melbourne Yacht Squadron, located on Port Phillip Bay at St Kilda. During the construction of the yacht the keel, contrary to design, was cut on both sides of the keel along horizontal lines. The sheets or “skins” on the starboard and port sides of the keel were thus separated and then the skins were welded back together. This was the relevant cut and (re)weld giving rise to the allegation of criminal negligence by both accused. Mr Presland, the foreman boilermaker, was primarily responsible for the construction of the keel. Many of the employees of Mr Cittadini worked on the yacht’s construction, though Mr Saunders, a shopfitter in business, did the internal fit out. The prisoner was hoping to treat this yacht as a ‘prototype’ for further yachts to be known as ‘Extreme 50’ series. The prisoner had built, at most a handful of yachts before, primarily as an interest rather than a business. Yacht building was never, at any relevant time, the core business of Mr Cittadini or his companies. However, he was an experienced sailor and knew a lot about yachts.

9 The welding on the starboard side cut of the keel skin was on average only forty five percent of a complete weld. There was little or no weld preparation. The keel was approximately three metres in length, the cutting of the keel occurred approximately one metre from the top of the keel. When the yacht was subjected to severe weather conditions whilst sailing back from Queensland to its home port of Melbourne, after participating in various races between Sydney and Southport and in the Whitsunday passages, the keel broke away along the horizontal line, or cut, most probably first on the starboard side of it where the weld was least satisfactory, after weeks or months of fatigue fracturing. This caused the yacht to capsize almost immediately. The four deceased drowned. Only the body of Mr Heyes was recovered. Two other crew members survived, Mr Rogers and Mr McDermott, luckily but heroically, when rescued a number of hours after the capsize by a freighter sent to their aid. Their story of survival was chilling but also awe inspiring. The capsize and its consequences is an enormously tragic affair. There are many risks in sailing on the open ocean even for the most careful of sailors, but whilst factors such as weather and submerged objects may be a risk to life and limb sailors should not be put at risk from negligent or incompetent workmanship in the building of yachts. The yacht, in a capsized state, with the ’stump’ of the keel still attached and sixty percent of the ram piston still attached, was recovered by New South Wales Water police, returned to port and subsequently inspected by various experts, particularly Mr Gray and Mr Burns for the investigators. They are metallurgists, with specialist knowledge of welding procedures.

10 There was no issue at the trial that the cutting of the keel was contrary to design and that the cutting of the keel and its welding together was grossly negligent. The causal connection between the negligent acts as alleged and the deaths was not the subject of dispute although there was remoteness in time and place between the negligent acts and/or omissions and the capsize.

11 The construction of the keel involved not only the cutting of the stainless steel sheets to the shape of the fin and their welding together, but the construction within the keel of a “ram compartment”, extending from the top of the keel through to about the middle of the interior of the keel, into which was to be placed a hydraulic ram, connected to the bottom of the compartment at what was called a “clevis point” or attachment. The ram would operate within the hull to pull up or let down the keel, which would retract partially into the hull.

12 The evidence that unfolded at trial established the cutting of the keel and it’s welding had in effect been “covered up” by polishing along the weld line. The cutting of the keel and its welding was thus not readily apparent either to the trained, or the untrained eye. A photograph of the keel, probably taken after the horizontal cut and welding had been done, makes that clear. I am not satisfied that the prosecution has established beyond reasonable doubt that the accused Mr Cittadini directed, or even knew of, the horizontal cut. There is evidence available to show that the cutting and welding of the keel was done in circumstances where the prisoner would not have been aware that it had occurred and could have been done without him being consulted. In the Presland judgment I deal with the reasons for this situation. There is no evidence of anyone witnessing the cut and welding of the keel. Although the prisoner could do some welding, there is no suggestion he did the welding here.

13 Not only was the defect latent, and unknown to the accused, but the person who perpetrated the cutting and welding of the keel may well have taken active steps to hide that fact from the accused. The prisoner was ‘the boss’, ‘what he says goes’, to quote or paraphrase one witness. I am satisfied that the evidence at the trial established that the reason for the cutting and re-welding was connected with the attempt to ensure that the ram compartment could house the hydraulic ram. This “motive” was, to my mind, made clearer (notwithstanding the possibilities suggested by Mr Gray the metallurgist) by the case conducted by Mr Presland, showing that he had constructed the first cover plate, but not the second cover plate to the keel. The “cover plate” was cut to assist in connecting the ram to the clevis point or attachment. The second cover plate, which was placed back in the skin of the keel after the horizontal cut had been made, was welded in a manner far inferior to the usual standard of Mr Presland’s welding. I am quite satisfied of the truth of Mr Presland’s denial that he not only did not do the horizontal cut and welding of the keel but that he did not cut or place the cover plate for the second time.

14 The cutting of the keel was a major variation to the keel’s design and in the absence of any evidence of an “economic” motive to cut the keel, it is apparent that the cutting of the keel and its welding was kept secret from the prisoner. There was evidence at the trial that the prisoner had made it clear that the skins of the keel were not to be cut. The cutting and the welding were, as earlier indicated, covered over by polishing.

15 The prisoner gave evidence on sentence of supervising the placement of the rudder housing or assembly, which was to be welded by Derek Harris. He was aware that Mr Harris had tacked the rudder housing into position and he left him to finish the work, however Mr Harris only stitch weld it and it was not completely welded. I accept this evidence as indicating that the prisoner put his trust in long term experienced employees to do work properly that they were capable of doing. I accept evidence that there have been changes at Applied Engineering in relation to its processes to ensure quality control. The business does not, and has not, built yachts since the capsize of the Excalibur. The prisoner was cross-examined by the Crown principally about matters relating to whether he ought to have had notice of the horizontal cut by further inquiry. The prisoner said that such markings as were on the keel which, as it transpired, disguised the horizontal cuts to the keel, were to his mind a “heat cleanup line” and that he made no inquiry beyond that assumption, nor in relation to grind marks along the heat line. Although Quality Assurance was raised with him, I must say that I have not been fully informed, nor even barely adequately informed (as with the jury), as to the detail of Quality Assurance steps that would provide a greater level of supervision and inspection that arose in this particular case and prevent this type of occurrence. It would seem that having regard to the basis upon which Mr Cittadini was found guilty that there is a real probability that even with appropriate quality assurance steps, a secretive “operation” to cut the keel would not have revealed itself to Mr Cittadini.

16 The failure to detect this secretive operation is the basis of the Crown case for negligent act by omission. The prosecution introduced into the case matters in evidence and in address which had nothing to do with the real issues for the jury to determine relating to Quality Assurance and the like. There was evidence available to the jury of steps that could be taken to overcome the problem of detecting a latent defect, such as radiographing the keel, more intense supervision and the like. It must be said that both by reference to the standards existing at the time of construction (2000-2002), the absence of Quality Assurance and other possible methods of checking procedures were explained by the absence of any requirement for them either in the demands of the naval architect, the owner or any industry standard. No party favoured this Court with the Coroner’s recommendations on this issue in late 2005, but I believe the Coroner made various recommendations in this regard.

17 Whilst Mr Cittadini had constructed other yachts, this would appear to be the largest yacht construction in which he was involved. There was, to be fairly said, an element of inexperience in the background of the employees and Mr Cittadini himself in yacht construction generally, albeit that at various points very experienced tradesman were involved in various aspects of the construction. Mr Presland was a boilermaker and a perfectionist. The prosecution established to the jury’s satisfaction that the accused ought to have had a system in place to detect latent defects. Even the system implemented by Mr Brown, the yacht builder who’s statement was tendered because he was unavailable to be cross examined, short of x-raying the keel, did not appear to provide a fail safe method of avoiding secretive operations that must have occurred on this occasion.

18 I accept so far as the prisoner’s role was concerned that, for the principal tasks, competent and experienced tradesmen were employed, that responsibility for individual jobs was delegated by foreman to tradespeople and that foremen had general supervisory responsibility, as management expected in all the business’ work. Mr Cittadini expected his instructions to be followed, including instructions that the keel not be cut, and there were some spot checks from time to time. As the Crown put its case for omission, there were insufficient “spot checks” or other possible supervision.

19 The character of the horizontal cut, in defiance of Mr Cittadini’s orders and expectations, would not have been avoided by either pre-testing welders working on the yacht or prescribing particular weld procedures. The secretive character of the operation to do the cutting and the welding pre-empted any such requirements whether they were in place or not. I am satisfied that the prisoner is to be sentenced on the basis of a failure to put in place a system of adequate visual examination of the various stages of the construction. A reporting system clearly would not have been adequate to overcome the circumstances of this matter if someone chose not to report his own conduct.

20 It is in this context that the objective seriousness of the offending is required to be considered. As has been pointed out in submissions and was known well before the learned Chief Justice handed down his decision in R v Forbes, manslaughter is the most “protean” of offences. The submissions have focused upon categorising this particular offending within the range of offending contemplated as being manslaughter by criminal negligence.

21 I was taken by both the Crown Prosecutor and Mr Odgers SC to a number of judgments, some from New South Wales, some interstate and some from England, purportedly providing assistance as to both principle and perhaps “tariff”. The English decision of R v Connolly [2002] 2 CR.App.R 509 cited by the prosecution was an “industrial” manslaughter case involving the death of four people, but otherwise bore little or no relationship with this case in any material respect. The criminal conduct arose from manslaughter by gross negligence involved a deliberate act on the part of the offender of disabling brakes on a “rail trailer”, which rolled down a gradient without brakes and killed four workmen and injured others. The “negligence” arose from a deliberate act, the appellant’s motive was profit, he had concealed the disablement and had attempted to obtain false assessments in order to deceive investigators. Naturally, sentences of imprisonment outside New South Wales provide little guidance given different sentencing regimes. In the matter of Connolly the complexities of “totality”, as arise in this matter, do not appear to have troubled their Lordships when they imposed concurrent sentences, unburdened as they are by Australian jurisprudence on the subject post Pearce v The Queen.

22 Some of the other “comparative” sentencing cases were concerned either with “motor manslaughter” or manslaughter by neglect of 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 those cases there were sentences imposed for negligent manslaughter, the circumstances were that the offender was directly aware of essential facts contributing to the circumstances of the death, or deaths. They are in fact by and large cases of unlawful and dangerous act or negligence by commission. Even a case safely to be categorised as manslaughter by omission, such as HA, had evidence of temporal proximity of the offender to the relevant events contributing to the death, knowledge of them and even an opportunity before the death to intervene to prevent the death occurring.

23 I appreciate, particularly in relation to manslaughter, that no general rules can be propagated. Generally the sentencing regimes for manslaughter offences reflect, subject to particular subjective circumstances, a diminution of culpability by reference to the extent of conduct and/or knowledge on the part of the offender. Manslaughter sentences for offences which might otherwise be murder, but for defences of provocation and diminished responsibility, are generally regarded as objectively more serious than crimes of manslaughter by criminal negligence. Cases of manslaughter by unlawful and dangerous act are also generally more objectively serious than offences of manslaughter by criminal negligence. Crimes of commission will be generally seen as more serious than crimes of omission. Of course, whilst this is generally true of sentencing over many years for the crime of manslaughter, there may be situations where manslaughter by gross negligence may be seen as objectively more serious than crimes involving either an intention to kill or inflict grievous bodily harm with a statutory defence available or even unlawful and dangerous act. Many variable factors may arise for consideration such as the relationship between the parties, the time taken in planning or conducting the crime, immediate contrition on realising the consequences of one’s conduct, the degree of negligence and the like. The Crown conceded in this matter that on the facts of this case negligent manslaughter by omission was less culpable, or less objectively serious, than by acts of commission. At this point I acknowledge the interstate authorities to which I was taken, but feel that they add little to the jurisprudence within this State and certainly must be considered in the context of different sentencing regimes and even standards interstate.

24 Each individual offence here, in the context of the conduct giving rise to liability for manslaughter, must be seen at the lower end of the scale of culpability and objective seriousness, primarily because the omission of the accused was the failure to implement a system of adequate supervision and quality control but in circumstances were there was no “recklessness” to foreseeable circumstances. The accused himself was unaware of both the fatal flaw in the yacht and the circumstances which gave rise to its creation because it was done secretively and where he would not have approved what was done. In fact, I am satisfied he would have rectified the fault if he knew. The prisoner in fact, by sailing on the yacht for ‘shake down’ cruises on Port Phillip Bay, put himself at risk equally with other people on the yacht at that time, although the risk of death no doubt was less on Port Phillip Bay in daylight than in the open ocean at night. On the other hand the omission(s) of the accused potentially put at risk multiple victims which ultimately militates in favour of the custodial option I have foreshadowed.

25 This may be categorised as an “industrial” or, particularly, a “consumer manslaughter” case, but that categorisation does not relieve it of its seriousness. There may be circumstances of death caused in the ‘work place’, or death to consumers from industrial processes, giving rise to liability for prosecution for manslaughter of considerable seriousness. The English authority to which I referred to earlier is a good example. However, sentencing individuals for industrial manslaughter (as opposed to sentencing breaches of Occupational Health and Safety legislation arising from deaths) are comparatively rare from what I understand of the researches of the parties. Certainly no New South Wales case has been brought to my attention of liability for manslaughter in an industrial or commercial context, on the basis of omission, as opposed to commission. This case would appear to be almost a unique example of manslaughter by omission. The bitterness over the search for justice as it is described by the family of the victims is understandable. This extends to blaming the prisoner for consequences for which he is not responsible, as arose in some of the victim impact statements, but there must be, in any context, some limits to the extent of criminal liability which will fall within the limits of liability for damages, or liability under relevant Occupational Health and Safety legislation.

26 I have to consider 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 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 to stay proceedings followed by pleas of guilty, concerned with the implications of issue estoppel and “double punishment” has generated a body of jurisprudence in the law of sentence of considerable size and complexity. When one reads the various judgments opining upon the implications of Pearce, one is reminded of what appears in the same judgment before and after the obiter observations of their Honours at [45].

27 The majority said, inter alia: “It is highly undesirable that the process of sentencing should become any more technical than it is already … it should, however be emphasised that (the enquiry as to whether “a single act is common to two offences whilst no always straight forward”) is not to be attended by excessive subtleties and refinements. It should be approached as a matter of common sense not as a matter of semantics …. Sentencing is not a process that leads to a single correct answer arrived at by some process admitting of mathematical precision” (Pearce v The Queen at [39], [42], [46]).

28 These observations may be seen in the light of observations in other important cases decided by the Court of Criminal Appeal and the High Court on sentencing since Pearce. In R v Way [2004] NSWCCA 131 (at [126]) the Court said:

“Had there been an intention to convert sentencing to a precise arithmetic exercise….then those reference points would need to have been identified and consideration given to the weight to be attached to the adjusting factors. The absence of any provision of that kind (in Part 4 Division 1A Crimes (Sentencing Procedure) Act, 1999) is a further pointer towards the continuation of a wide area of discretion, without resort to some rigid mechanistic or arithmetic approach, of the kind which would be untotally suited to the difficult task of sentencing.”

Or, as the High Court has observed:

“The core of the difficulty lies in the complexity of the sentencing task. A sentencing judge must take into account a wide variety of matters which concern the seriousness of the offence for which the offender stands to be sentenced and the personal history and circumstances of the offender. Very often there are competing and contradictory considerations. What may mitigate the seriousness of one offence may aggravate the seriousness of 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])

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 ).

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.

There is also the judgment of Howie J in Cahyadi v Regina (2007) 168 A Crim R 41 (at 47).

31 I sought assistance from counsel as to what the concept of “totality of criminality” meant in the context 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:

“The effect of this practical consideration is always to produce an ultimate aggregate which is less than that which will be arrived at by a straight forward adding up of the terms appropriate for the offences if each were viewed alone. In carrying out this process of adjustment, it is both inevitable as well as proper that the ultimate decision be arrived at in the light of the totality of the criminality involved in all the offences. …. Where the principle of totality comes into effect … the important factor is the practical significance of the sentencing order.”

32 The method his Honour described however probably would not survive post Pearce principles. In Mill v The Queen (1998) 166 CLR 59 (at 62-3), the High Court said that the totality principle had been described succinctly by the leading legal academic, DA Thomas, in his work “Principles of Sentencing”, where the leaned author said:

“The effect of the totality principle is to require a sentencer who has passed a series of sentence, each properly calculated in relation to the offence for which it is imposed and each properly made consecutive in accordance with the principles governing consecutive sentences, to review the aggregate sentence and consider whether the aggregate is “just and appropriate”. …. The Court must look at the totality of the criminal behaviour and ask itself what is the appropriate sentence for all the offences.”

33 The High Court said in Mill that an appropriate result may be achieved either by making sentences wholly or partially concurrent. The High Court even suggested “lowering the individual sentences below what would otherwise be appropriate”, a view not embraced by the majority in Pearce.

34 The judgment in Pearce does not with any precision shed any helpful light upon what constitutes “totality” of criminality. Here, ultimately one must conclude that the consequence of the omission causing four deaths, represents greater criminality than that resulting in one death. But the effect of the increase of the sentence by accumulation must be mitigated by the singular character of the offending, noting that the offending may have caused (by the capsize of the yacht), no deaths, one death or even more than four deaths, depending upon a range of variables of which the prisoner could not have any reasonable foresight.

35 The Crown’s position is that the circumstances of the matter were such that there should be some concurrency and some accumulation of all the sentences to be imposed, as I understand the Crown’s position, “Each sentence should be determined to partially accumulate each sentence upon the other”. The defence position is that in the circumstances primarily the sentences should be concurrent with each other. Alternatively, there should be partial accumulation of some sentences. Senior Counsel for the prisoner submitted further that even if the sentences were accumulated the sentences could be suspended pursuant to s 12 Crimes (Sentencing Procedure) Act 1999. My understanding of the operation of s 12, without being pointed to authority to the contrary, is that there is no requirement to fix commencement dates in relation to the sentences of imprisonment suspended under that provision. S.12 expressly excludes the operation of Pt 4 of the Act, which provides for the backdating of commencement dates and accumulation of sentences, subject to s.99(1) of the Act. Given the character of the orders and their purpose it is not possible to partially accumulate terms of imprisonment to be suspended, pursuant to s 12 Crimes (Sentencing Procedure) Act, either in practical terms or as a matter of law. It would be absurd to give a commencement date for a sentence of imprisonment, which is suspended, if the bond could be revoked, long after the period fixed had expired, for a breach on the last day of the bond and obviously before enforcement proceedings.

The Victim Impact Statements

36 A number of Victim Impact Statements have been prepared by various persons both primary and secondary victims. These statements were read by Mr McDermott, the skipper at the time of the capsize, who harboured personal responsibility for the loss of his crew, Annabelle Lane, the sister of Christopher Heyes, Mr Heyes brother Samuel Heyes, Christine Heyes, Mr Heyes widow, and David Heyes, another brother. Other victim impact statements were tendered from Joy Oakley the mother of Tracey Luke, and a brief note expressing the distress of Mavis Pope OAM, the mother of Ms Pope. The sudden, unexpected death of a loved one is a shocking experience and lingering questions as to how it happened, why it happened and who was responsible no doubt add to the distress of loved ones. The reading of victim impact statements is a very emotional event for all concerned. In accordance with the Crimes (Sentencing Procedure) Act 1999 I have regard to those statements and noted the impact upon others of these events. Whilst the death of Mr Heyes’ mother shortly after his drowning was raised in several impact statements is very sad, it is not a matter for which Mr Cittadini can reasonably be held accountable and responsible for sentencing purposes. I would be disappointed if the victims were advised that that event could reasonably be regarded as a relevant matter to this sentencing process. One of the most disturbing aspects of dealing with victims of crime in sentencing proceedings for Judges is calming false expectations and misunderstandings they have of the sentencing process or dealing with misleading information that victims are given about what material is relevant in sentencing and what outcomes are realistic.

37 One other matter that needs to be addressed to the families of the victims is that my responsibility is not to sentence Mr Cittadini solely to the satisfaction of relatives of the deceased and other victims. There are many interests involved, including theirs, and many complex rules to recognize. Most importantly, the imposition of a penalty imposed upon any person responsible for the death of another is never to be taken as a measure of the worth of the deceased's life. The sentencing of offenders, as I have explained elsewhere, for the crime of any manslaughter is a complex area with many considerations, some pointing in different directions, to paraphrase the words of the High Court in Veen (No 2) v The Queen.

Subjective circumstances

38 Mr Cittadini was born on 16 February 1959 and is thus now aged 50 years. He was 43 years of age at the time of the commission of the offences.

39 He has no prior criminal convictions. He did not raise his good character at the trial, which is surprising in the absence of convictions and the positive evidence of good character before this Court on sentence, not challenged by the prosecution.

40 Apart from various references, to which I will refer, and the evidence of the prisoner I have a report from the Victorian Department of Justice, Community Corrections Division. In that report, not unnaturally, Mr Cittadini maintains that he was unaware of the defect in the keel. The report confirms what is available from other evidence that Mr Cittadini is a married man with children, aged 15 (a son) and 17 (a daughter). He has strong support from his immediate and extended family. There are no outstanding health issues although there was some immediate anxiety as a reaction to the events giving rise to the charges, which Mr Cittadini addressed by psychological counselling.

41 He has been employed by and/or managed the Applied Engineering Group since 1976. This group of companies is a family concern, started by his father. He has at least one sibling (Albert) involved in the business, as I understand the situation. He has had various management roles and has been described at various points as “Managing Director”, although presently a professional Chief Executive Officer manages the various companies. Some evidence was given at the trial of the liquidation, or receivership, of some of the Applied Engineering Group companies, but so far as can be understood by this Court, at this time, the business in general terms is a going concern.

42 The report from Community Corrections notes that the prisoner is not affected in any way by drug or alcohol issues and is, as one would expect, assessed at a low level of reoffending. Given almost the unique circumstances of this prosecution and conviction I have no doubt that the prisoner will pose no threat or concern for the community in any respect. The Community Corrections report indicates that the Service has in fact little to offer.

43 The prisoner gave evidence before the Court on sentence, although he did not give evidence in his trial. He gave evidence in a matter of act, straight forward style.

44 He explained that he had been the Managing Director of the Applied Engineering Group of companies since 1996 and before that had been involved in project management work, with an electrical trades background. At the present time the Applied Engineering Group employs about 70 people on a full time basis with a number of temporary employees, many of the employees (as was the case with witnesses at the trial from the business) having worked for the company for many years. He had been a member of the Royal Melbourne Yacht Squadron for twenty five years and was Club Captain and on the Sailing Committee at one point.

45 He said in evidence that his reaction to hearing of the deaths of the crew of the Excalibur was one of shock and confusion. The prisoner was unavailable and sent his brother Albert to inspect the yacht once it had been retrieved by the Sydney Water Police. He denied that he knew that the keel had been cut through and welded back together and gave evidence that when he realised that that was the cause of the yacht capsizing he had a “sinking feeling” and anger, realising that “things happened on our watch”. I accept the evidence of the prisoner that he cooperated with the police investigation and cooperated with the Coronial inquest. The full picture in a technical sense did not emerge for Mr Cittadini until the “second part” of the inquest in 2005. The prisoner gave evidence of anxiety issues arising from the circumstances of the death and the strain of the subsequent litigation. I accept that his son has suffered difficulties because of the publicity, particularly publicity arising out of his father’s prosecution, as has the daughter to a lesser extent. The prisoner has given evidence that since 2002 he had barely sailed having lost interest in the sport. He takes general responsibility for these events but maintains his innocence, It must be said that the line between guilt and innocence, in a case such as this is blurred.

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”.

47 There were a large number of references from company directors, business colleagues and competitors (including those who gave oral evidence), family friends, former employees and contractors, clients and yachting colleagues and general associates. One could not do justice to the detail of all the referees opinions but to summarise, the evidence from the references establishes that Mr Cittadini is a devoted family man, who was also an energetic, hard working, ethical, businessman. The prisoner has always had concern for his employees and is well regarded by them. The delivery of defective equipment, as occurred in this case, was uncharacteristic of the standards generally applied by the Applied Group, particularly in respect of projects personally supervised and/or directed by the prisoner. I accept in his private life he has supported community organisations, particularly the Scout movement and has generally behaved as a responsible community and business citizen.

48 Mr Cittadini is regarded as an honest man, to which his background attests, loyal to friends and family, honest and trustworthy. Within the industry in which Mr Cittadini’s business career has been concerned the brick making equipment industry. He has a reputation for competence, professionalism and ethical behaviour. In summary the evidence reveals that in his private and business capacities the prisoner is a man of excellent character. The offending conduct is uncharacteristic. It represents a lapse of his usual standards.

49 With regard to s 3A Crimes (Sentencing Procedure) Act 1999 I am to have regard to the various matters identified as the “purposes of sentencing”. Clearly, where lives are lost as a consequence of the criminal conduct of an offender, issues including, denunciation, punishment, accountability as well as deterrence, both general and personal, will inevitably arise for consideration. These various matters reflected in statements of principle from cases such as Blacklidge, quoted by the Crown in his written submissions and cited by the learned Chief Justice in Forbes, have to be assessed for their weight upon the facts of the case. Whilst conceding that general deterrence arises, its significance will vary. This case is an example of where less weight may be given to general deterrence, given the circumstances, although general deterrence is still a relevant consideration. It is difficult to see how on can deter others from crimes of “omission” given the circumstances of this case. I note however that there will be classes of “industrial manslaughter”, or the killing of consumers by industrial processes, where general deterrence may loom very large indeed. In the light of the events since the commission of these events these offences, and the circumstances of the offences themselves, personal deterrence seems to be of little significance. The totality of the evidence does not suggest the prisoner needs to be deterred from committing further offences of this, or any other type. The prisoner of course must be made accountable for his responsibility as determined by the jury’s verdict. What denunciation would be appropriate is difficult to identify when the failings of the prisoner turn upon matters of supervision which, even if improved, may not have detected the defect in the keel. Clearly there must be punishment, given the consequences. I must promote his rehabilitation as well.

50 In this matter the issue of the delay in the prosecution arises. I have not been provided with any evidence from the Crown to justify the delay in this matter, particularly between the referral by the Coroner until the filing of the bill in an ex-officio indictment. I am told in the Crown’s submissions there was a “lengthy police investigation” made more difficult by the fact that many of the witnesses or potential witnesses were in Victoria. There was a Coronial inquiry examining a wide range of issues. There was only one application for adjournment of the trial, and that must have arisen in October or November last year (thus any delay by reason of either one of the parties in this Court amounted to only three months). All this may explain a delay in the Coroners inquiry, but not other delays up until the bill was filed. The inquest did not conclude until over three years after the yacht sank. Without ascribing fault, it certainly cannot be said to be the fault of the prisoner, or his former co accused. I must confess to constant astonishment at the inordinate delays that occur after inquests, Commissions of Inquiry, Reports from ICAC and the PIC, before people are charged by ex officio indictment and brought, usually, before this Court. Certainly, in this matter, it is no fault of the accused and no fault of the victims. Everyone is the poorer for delay. When it is all said and done the most adversely affected (except where that person is responsible for the delay which is not the case here) is the accused whose “fate” has been left in a state of suspension for a period of time. It is to be remembered that he and Mr Presland were interviewed over 6 years before the trial commenced.

51 In any event, the Crown acknowledges there was “some delay”. I accept the submission of the accused in this regard that there has been significant or substantial delay as identified through no fault of the prisoner. I accept that the prisoner has been in a state of suspense and anxiety since he became aware of the possibility that criminal charges may result, that in the meantime he had cooperated with the investigative process involved in the Coronial inquest. I note that he has been on bail and complied with his bail conditions, attending to the proceedings in Sydney from interstate frequently over an extended period of time. I note that the prisoner expected the trial to commence in October and again, through no fault of his, and of course no fault of the prosecution, the prosecution appealed the decision of the first trial judge to the Court of Criminal Appeal over an admissibility issue. The resultant delay not only causing added expense but ultimately leading to the trial being stood over to February of this year. Although the prisoner does not appear to require “rehabilitation”, the period since September 2002 has seen changes in the approach of his business to aspects relevant to the safety of users of his products. The delay is a mitigating factor, but not of the character or extent that was considered appropriate in R v Todd (1982) 2 NSWLR 517,

52 I have regard to s 21A Crimes (Sentencing Procedure) Act 1999. There are no aggravating factors arising under s 21A(2) that I can identify or that have been identified in submissions (s.21A(2)(m) does not apply in its terms, noting the remarks of Hunt AJA earlier cited). The relevant mitigating factors arising under s 21A(3) are:

i. The offence was not part of a planned or organised criminal activity.

ii. The prisoner does not have any record of previous convictions.

iii. The prisoner was at the relevant time a person of good character and has since this offence continued to be a person of good character, and

iv. He is unlikely to re-offend.

v. He has excellent prospects of rehabilitation.

53 I accept, as I have earlier indicated, the prisoner’s cooperation with the investigators by providing an interview to New South Wales police and cooperating with the Coronial inquest, giving evidence without taking an objection. At trial he made a number of admissions at the commencement of the trial, including as to the cause of the capsize of the yacht and his responsibility as a supervisor of the construction of the yacht.

54 One matter arising from the submissions relating to purported “aggravating features” that requires comment is the submission that the prosecutor made that “the only reason, or motive, behind such offending was financial gain, as the evidence showed it cost more to put systems of supervision and quality control into place”. This submission was not pressed and there was no objective basis for even putting it. When the prisoner gave evidence the prosecutor did not put this matter to Mr Cittadini. In any event, issues of motive to some extent fall away given the basis upon which manslaughter by negligent omission arose on the facts of this case.

55 I further take into account that this litigation involving Victorians and concerning acts or omissions in Victoria has been played out in New South Wales. As I told the widow of Mr Heyes, I understand this has placed an added strain on everyone involved, victims and accused, financially and I would suspect emotionally, with the strain and trouble of constant travel. Of course, had the Victorian authorities exercised jurisdiction who knows what might have happened. There may not have been a trial, because one could see that reasonable minds may differ as to what the evidence was capable of establishing. For sentencing purposes, I note the expenses, beyond the usual vicissitudes of defending oneself, borne by the prisoner and this added strain. Further, the prisoner will spend this sentence in New South Wales some distance from Victoria in circumstances over which he had no control. This is a very different case from that of a foreign national or someone from interstate who deliberately comes to this State to commit a crime. Any hardships, beyond the usual, in such a case are not usually relevant, as many authorities from superior Courts make clear. This situation is different and I have taken that into account.

56 Another relevant matter is the effect upon the prisoner’s family of the prisoner’s incarceration as well as the stigma of conviction and sentence. This is not an “exceptional case” as discussed in Edwards (NSWCCA – 12 December 1996 – unreported), but the sentencing of the prisoner occurs at a time when his children are still at school emotionally and physically grounded within the family unit. Although there is wider family support, his immediate family loses its principal source of financial support.

Conclusion

57 In sentencing the prisoner I have had regard to s.5 Crimes (Sentencing Procedure) Act 1999. I have determined, in the context of the maximum penalty that a term of imprisonment ought be imposed for each offence, some sentences partially accumulative upon others to reflect the ‘totality’ of the criminality exposed in the charges. The terms of imprisonment cannot be suspended because of the length and structure of them. In fixing the sentences, I have determined that the sentences for the partially accumulative sentences involve ‘special circumstances’, pursuant to s.44 Crimes (Sentencing Procedure) Act 1999 warranting an adjustment of the relevant non parole periods to varying degrees. Those special circumstances include, the accumulation of those sentences, the need for the prisoner to receive the assistance from Community Corrections to adjust to community living on release from custody, the need for an appropriate period of supervision to deal with post release issues. The prisoner, I am informed, is to be sentenced on the basis of the repealed s.44, also with regard to s.47 of the Act.

Order

58 Thus, in respect of the offences of manslaughter in Counts 1 & 2, the prisoner is convicted, sentenced to a term of imprisonment for the period of 2 years and 6 months on each count, to commence today and expire on 9 January 2012. In respect of each sentence I fix a non parole period of 1 year 6 months to expire on 9 January 2011. In respect of Counts 3 and 4 in the indictment the prisoner is sentenced to imprisonment for the period of 2 years 6 months, to commence on 10 January 2010, to expire on 9 July 2012. In respect of that sentence I fix a non-parole period of 1 year, to commence on 10 January 2010 and to expire on 9 January 2011. At the conclusion of the non-parole period I direct that the prisoner be released to parole, to be supervised by the New South Wales Parole Board, through Victorian Community Corrections.