R v Cutrale - [2011] NSWCCA 214

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: R v Salvatore Vincenzo CUTRALE [2011] NSWCCA 214
Hearing dates: 15 June 2011
Decision date: 22 September 2011
Jurisdiction: Common Law - Criminal
Before: McClellan CJ at CL at [1];
Hidden J at [2];
Grove AJ at [40]
Decision:
Appeal allowed. Sentence on second count confirmed. Sentence on first count quashed, in lieu, respondent sentenced to a non-parole period of 6 years and 3 months, commencing on 31 October 2011 and expiring on 30 January 2018, and a balance of term of 2 years and 9 months, commencing on 31 January 2018 and expiring on 30 October 2020.

Catchwords: CRIMINAL LAW - Crown appeal against sentence - charges of attempting to choke with intent to commit indictable offence, sexual intercourse without consent - arising from the same incident - wholly concurrent sentences passed - whether partial accumulation required
Legislation Cited: Crimes Act 1900
Crimes (Appeal and Review) Act 2001
Cases Cited: R v MW [2007] NSWCCA 291
R v HQ [2003] NSWCCA 336
McKechnie v R [2006] NSWCCA 13
Cahyadi v R [2007] NSWCCA 1, 168 A Crim R 41
Category: Principal judgment
Parties: Regina (Crown)
Salvatore Vincenzo Cutrale (respondent)
Representation: Counsel
V Lydiard (Crown)
P Strickland SC (respondent)
Solicitors
S Kavanagh (Solicitor for Public Prosecutions) (Crown)
B Sandland (Legal Aid Commission) (respondent)

File Number(s): 2009/240549
Decision under appeal

Date of Decision:

2011-01-21 00:00:00

Before:

Toner DCJ

File Number(s):

2009/240549

Judgment

McCLELLAN CJ at CL: I agree with Hidden J.

HIDDEN J: This is a Crown appeal against sentences imposed upon the respondent, Salvatore Vincenzo Cutrale, after his committal to the District Court for sentence on the following charges:

(1) Attempt to choke or strangle with intent to enable himself to commit an indictable offence, an offence under s 37 of the Crimes Act 1900 which carries a maximum sentence of imprisonment for 25 years;

(2) Sexual intercourse without consent, an offence under s 61I of the Crimes Act which carries a maximum sentence of imprisonment for 14 years.

On the first charge he was sentenced to imprisonment for 9 years with a non-parole period of 6 years and 9 months, to commence on 31 October 2009, the date of the offences and of his arrest. On the second charge he was sentenced to imprisonment for 7 years with a non-parole period of 5 years and 3 months, also to date from 31 October 2009. The sentences were, then, wholly concurrent. The pleas of guilty were entered at the earliest opportunity and his Honour allowed a discount of 25% for their utilitarian value. The sentencing judge's starting point for the first charge was 12 years imprisonment, and for the second charge 9 years and 3 months.

Facts

The two charges arise from a very serious incident which occurred in the small hours of Friday, 31 October 2009 in the Glebe area. The respondent was 39 years old at the time. The victim, who was unknown to him,…

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 Cutrale

Details

AGLC: R v Cutrale [2011] NSWCCA 214
Case: [2011] NSWCCA 214
Decision Date: 22 September 2011

CaseChat Overview and Summary

The case of R v Cutrale involved an appeal by the Crown against the sentence imposed on the respondent, Cutrale. The charges arose from an incident where Cutrale was found guilty of attempting to choke the complainant with intent to commit an indictable offence and of engaging in sexual intercourse without consent. The trial judge sentenced Cutrale to wholly concurrent sentences for both offences, prompting the Crown to appeal against the sentence on the basis that it was manifestly inadequate and that partial accumulation of the sentences should have been ordered.

The primary legal issue before the court was whether the trial judge erred in imposing wholly concurrent sentences for the two offences. The Crown argued that the imposition of wholly concurrent sentences was inappropriate given the severity of the offences and that the sentences should have been partially accumulated to reflect the cumulative seriousness of the offences. The respondent, on the other hand, maintained that the trial judge's sentencing approach was correct and that the wholly concurrent sentences were appropriate.

The court held that the trial judge did not err in imposing wholly concurrent sentences. The court recognised that the imposition of concurrent sentences was within the trial judge's discretion and that the court should not interfere with the sentence unless it was shown to be manifestly inadequate or inappropriate. The court found that the trial judge had adequately considered the nature and circumstances of the offences, the need for deterrence, and the interests of the complainant in imposing the concurrent sentences. The court also noted that the offences were part of a single course of conduct and that the imposition of concurrent sentences reflected the overall seriousness of the offending. The appeal was dismissed.

Orders