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

1. McCLELLAN CJ at CL: I agree with Hidden J.

1. 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.

1. 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

1. 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, was a young English woman who had arrived in Australia in the previous month on a working visa. She was living with her boyfriend in a home unit near Wentworth Park. She had been socialising with some co-workers and caught a taxi back to the units, arriving at about 1am.

1. She got out of the taxi and walked towards her unit block. The respondent came from behind her, grabbed her, knocked her off balance and pulled her into Wentworth Park. She ended up lying on her back and the respondent placed a hand around her throat and squeezed it, so that she could not breathe. He placed his other hand across her mouth and nose, again preventing her from breathing in or out. He lay on top of her, preventing her from moving. She thought she was going to be killed, and began to kick and scratch the respondent. He lay over her legs to stop her. She continued to scratch him on the face and neck with her fingernails. She tried to call for help, but she could not because of the pressure of the offender's hands on her throat and over her mouth and nose. He told her to shut up. She blacked out.

1. A man who lived nearby heard the sound of moaning and a female voice, which sounded distressed. He went to the park and approached the area where the respondent and the victim were. It seems that he could see two people in the park, but not clearly. He asked if they were okay and a male voice yelled, "Fuck off, you idiot." He then saw the respondent and the victim, who were unknown to him, the respondent lying on his side and the victim in his arms. Her top was pulled up. He heard her voice, which was muffled, but thought she was laughing. He thought that they were having sex and, embarrassed, he turned away and returned to his unit.

1. The victim regained consciousness, still lying on the ground. She was disoriented. Her top and bra had been pulled down, exposing her breasts, and her shoes, leggings and underwear had been removed. She saw the respondent crouching near her and noticed that his face was bleeding, apparently as a result of her scratching him. He said, "I'm sorry, I'm sorry." Still disoriented, she thought he was trying to help her. Her mobile phone was next to her. She called her boyfriend, saying that she thought she was going to die and that she did not know where she was or what had happened to her. He told her to go towards the lights. She handed her phone to the respondent, who told the boyfriend that they were in a grass field somewhere but he did not know where. The boyfriend noticed that he spoke slowly and that he sounded "very dopey."

1. The victim adjusted her clothing as best she could, but could not find some of the items which had been removed. Her contact lenses had been dislodged during the incident and she had difficulty seeing, but she could identify her unit block. She called her boyfriend again, who met her outside and found her to be extremely distressed. He called the police.

1. The victim was taken to Royal Prince Alfred Hospital, where a sexual assault kit was prepared. Subsequent testing of swabs revealed the presence of semen in her vagina, consistent with the respondent having had intercourse with her while she was unconscious. At the hospital she complained of extreme pain to her neck, and a number of injuries to her face and right hand were noted. The injuries to her face included pinpoint bruises below the eyebrows and subconjunctival haemorrhage in both eyes.

1. A doctor from the hospital's sexual assault service reported that the facial injuries indicated blunt force trauma from being held around the chin and neck, and that the bruising and haemorrhage indicated sufficient force to cause a rise in venous pressure and subsequent unconsciousness. The doctor stated that a strangulation injury causing unconsciousness is "extremely serious and has been known to result in death or brain damage." Fortunately, the victim did not sustain any long-term serious injury of a physical nature. Not surprisingly, however, there were grave psychological sequelae.

1. When police arrived at the scene, they found the respondent still in Wentworth Park, although a considerable distance from where the incident had occurred. He appeared to be sleepy and was unsteady on his feet, and they concluded that he was intoxicated by alcohol or some other drug. Police observed that his face was covered in blood and he had scratches around his neck and other parts of his body. He told them that he had been robbed by a number of men, who had hit him with a steel pole. He later took part in a limited electronically recorded interview but, as I understand it, made no admissions. He was charged, and has remained in custody since his arrest.

1. The sentencing judge received a victim impact statement in which the victim expressed eloquently the physical and enduring psychological effects upon her of this terrifying experience.

1. At the sentence proceedings the respondent gave evidence that on the day in question he had had a good deal to drink and had also taken some Endone tablets for headaches, which he said he had been suffering since he had been the victim an assault in September 2008. He gave an account of the offences in which he sought to minimise his culpability by reference to his intoxication. The sentencing judge did not accept this evidence, saying that he was "mightily unimpressed" by it.

Subjective case

1. The appeal does not require any examination of the respondent's background, about which he also gave evidence. His criminal history is not of significance. It includes a conviction in Queensland for indecent assault for which he was sentenced to a short term of imprisonment, but that offence was committed in 1991. His Honour did not find him to be remorseful about the present offences, and was unable to arrive at any conclusion about his prospects of rehabilitation.

The appeal

1. The focus of the Crown's appeal was his Honour's imposition of wholly concurrent sentences for the two offences. His Honour passed concurrent sentences because he concluded that the two offences constituted "one course of criminal conduct." The Crown prosecutor in this Court conceded that the sentence for each offence, while lenient, was within range. However, she submitted that the order that they be served concurrently resulted in an aggregate sentence which fails to reflect the totality of the respondent's criminality and is, accordingly, manifestly inadequate.

1. The Crown prosecutor referred to R v MW [2007] NSWCCA 291. That was a Crown appeal against sentences imposed for offences committed in an incident somewhat similar to the present case. That offender pleaded guilty to sexual intercourse without consent in circumstances of aggravation, being the infliction of actual bodily harm, and attempting to choke with intent to commit an indictable offence, being sexual intercourse without consent. He also asked the sentencing judge to take into account on a Form 1 an offence of committing an act of indecency. The aggravated sexual assault offence carried a maximum sentence of 20 years imprisonment and a standard non-parole period of 10 years.

1. The offender was the victim's stepfather. His relationship with her mother had been volatile, and during an argument between them a matter of days before the offences the victim had called the police (as she had done on previous occasions). On the occasion in question the offender lured the victim to a reserve, apparently bent on venting his anger at her calling the police. He tried, unsuccessfully, to gag her and threatened to kill her. During a struggle she was forced to the ground, and he inserted his finger into her vagina. She was crying, and he told her to shut up and punched her several times to the face. This constituted the aggravated sexual assault. He then tried to put his penis into her vagina, she called for help, and he grabbed her by the throat with both hands and began to choke her. She was unable to breathe and lost consciousness. This gave rise to the charge of attempting to choke her with intent. While he had his finger inside her vagina, he exposed his penis and masturbated. This was the Form 1 matter.

1. The offender was intoxicated by drugs at the time. He had an unfavourable criminal record, including previous convictions for robbery and for inflicting actual bodily harm. However, he was accepted to be remorseful for the subject offences and had good prospects of rehabilitation. Like the present respondent, his sentences were discounted by 25% for early pleas of guilty.

1. The sentencing judge imposed concurrent sentences for the offences, both of which this Court found to be inadequate. The Court also found that the sentencing judge erred in imposing wholly concurrent sentences. With reference to the attempting to choke offence, McClellan CJ at CL, with whom Barr and Bergin JJ agreed, said, "When that attempt results in the victim becoming unconscious the offence is one of considerable gravity": [43]. His Honour added, also at [43]:

"Furthermore, it was entirely inappropriate to provide concurrent sentences for both offences. The initial physical assault and act of intercourse was very serious. However, the subsequent attempted choking of the victim which rendered her unconscious was of a different character and required an identifiable penalty."

1. The appeal was allowed. On the aggravated sexual assault count the offender was sentenced to a fixed term of imprisonment for 6 years. On the attempting to choke count, taking into account the Form 1 matter, he was sentenced to imprisonment for 11 years, with a non-parole period of 8 years, accumulated upon the previous sentence by 1 year. The aggregate sentence was 12 years with a non-parole period of 9 years. The appeal was determined before the introduction into the Crimes (Appeal and Review) Act 2001 of s 68A, and the Chief Judge noted that, it being a Crown appeal, the substituted sentences were "at the bottom of the available range": [45].

1. In R v HQ [2003] NSWCCA 336, the offender was also the stepfather of the victim, who was a 15 year old girl. He pleaded guilty to two counts of attempting to strangle her with intent to commit an aggravated indecent assault and one count of aggravated sexual intercourse without consent. He woke the victim in the early hours of the morning and asked if he could touch her. She refused. He brandished a knife, and told her to be quiet or he would kill her brother and cousin (who, presumably, were also asleep in the house). Threatening her with the knife, he took her to a back room. He attempted to touch her breast but she told him to leave her alone. He again threatened to kill her brother and cousin if they awoke. He squeezed her neck with both hands and she had trouble breathing. This was the first count.

1. Still brandishing the knife, he kept asking her to allow him to touch her and she continued to refuse. He again seized her neck with both hands and attempted to strangle her (the second count). She could not breathe, she lost control of her bladder and lapsed into semi-consciousness. While she was in that state, he had penile/vaginal intercourse with her and ejaculated (the third count).

1. The sentencing judge sentenced the offender to concurrent fixed terms of imprisonment on the first and third counts, but to a term of imprisonment with a non-parole period on the second count which was accumulated by 2 years. The aggregate sentence was 13 years with a non-parole period of 10 years and 3 months. The sentences were arrived at after a discount for his pleas of guilty, but if the sentencing judge quantified the discount that does not appear in the judgments in this Court.

1. His appeal against those sentences was unsuccessful. He had a criminal history which included entries for common assault and assault occasioning actual bodily harm. On the other hand, there was taken into account in his favour the fact that he suffered from a depressive illness and faced a lengthy custodial term in strict protection. Spigelman CJ (O'Keefe J agreeing, Greg James J dissenting as to the effective non-parole period) held that the sentences were well within the range of the sentencing judge's discretion and that the partial accumulation of 2 years was entirely appropriate: [45] - [46].

1. The sentencing judge had imposed a fixed term of imprisonment for the first count which was entirely subsumed within the sentence for the third count, which she had described as objectively more serious: [37]. In rejecting a ground of appeal that her Honour had erred in partly accumulating the sentence for the second count, the Chief Justice said at [39]:

"The act of sexual intercourse without consent in the particular circumstances of aggravation was a significant offence of itself. It had been preceded by an attempt to strangle with intent to commit the conduct which constituted the second offence. However, the two offences were distinct in their criminality. It would, in my opinion, be rare that sentences for offences related in this way should be entirely concurrent. Her Honour was entitled, within the exercise of her discretion, to determine that each of these distinct offences should contribute separately to the effective punishment, so that one was not entirely subsumed within the other. I can see no error in anything that her Honour said or did in this regard. The sentences imposed do not offend the principle of totality."

1. In McKechnie v R [2006] NSWCCA 13, the offender was found guilty at trial of attempting to choke with intent to have sexual intercourse without consent and aggravated sexual assault (the circumstance of aggravation being occasioning actual bodily harm). He was sentenced on each count to concurrent terms of imprisonment for 15 years with a non-parole period of 11 years.

1. Like the present case, the offender and the victim were strangers. He attacked her at a beach on the north coast of New South Wales. He grabbed her with both hands around her throat, so that she could not breathe, and pushed her down onto a sandbank. He sat on top of her with his hands around her throat. She still could not breathe and feared for her life. When he released his grip on her she attacked his eyes, nose and throat with her hands. She ran, but he grabbed her again and said, "You've fucking made me really angry now, you bitch." He pushed her head into the sand so that she could not breathe, he continued to squeeze her throat, and he put his fingers into her vagina and twice inserted his penis.

1. His appeal against conviction was unsuccessful. On sentence, it was noted that he had an extensive criminal record, including convictions for offences of violence, some of which involved choking. He was also on bail at the time of the subject offences. It was also noted that the complainant had suffered substantial injury and emotional harm. The fact that concurrent sentences were passed was not a matter which the Court was called upon to examine. In dismissing the appeal against sentence, Hall J (with whom Mason P and Barr J agreed) concluded that the sentences "appropriately reflected the seriousness of the offences" and that they were not manifestly excessive: [89].

1. Counsel for the respondent, Mr Strickland SC, noted that the Crown did not contend that the sentences in the present case, viewed individually, are manifestly inadequate, and emphasised the discretionary nature of the decision whether sentences should be concurrent or cumulative. He argued that no error had been shown in his Honour's exercise of that discretion here, given the close association between the two offences. He also submitted that a global sentence of 9 years with a non-parole period of 6 years and 3 months was not inadequate to reflect the overall criminality of the episode.

1. In particular, he argued that the three cases to which the Crown prosecutor referred do not demonstrate that the global sentence is inadequate. He noted that in each of them the sexual assault charged was the aggravated offence under s 61J of the Crimes Act , whereas the respondent pleaded guilty to the offence in its unaggravated form under s 61I. In MW and HQ , the offender was the stepfather of the victim and, obviously, those offences involved a grave breach of trust. HQ was a particularly serious case, involving two acts of choking and the use of a knife. In all three cases the offender had a less favourable criminal record than the applicant's, including offences of violence. Particularly was this so in McKechnie , and that offender was also on conditional liberty at the time of the offences.

1. On the question of concurrency or accumulation, Mr Strickland also sought to distinguish MW and HQ . The first charge in the present case was attempting to choke or strangle with intent to enable the applicant to commit an indictable offence, and that indictable offence was the sexual assault the subject of the second charge. In MW , the offender had committed an aggravated sexual assault by digital penetration before the attempt to choke the victim. The act of choking occurred while he was attempting penile penetration, and it was with the intent to achieve that penetration that the choking was attempted. In HQ , the offender attempted to strangle the victim the second time with intent to commit aggravated indecent assault, following her continued refusal to allow him to touch her. It was not with the intention of committing the act of sexual intercourse which then ensued. That was a separate act, the subject of the third count. Accordingly, said Mr Strickland, in both those cases there was a measure of distinction between the act of choking and the sexual assault charged which is absent in the present case and which justified some accumulation of sentence.

1. I can see the force of that submission. Of course, whether sentences should be concurrent or cumulative is a matter of discretionary judgment depending on the facts of the case at hand, and this is not the occasion to revisit the familiar line of authority on this topic. However, a passage in the judgment of Howie J (with whom Adams and Price JJ agreed) in Cahyadi v R [2007] NSWCCA 1, 168 A Crim R 41, is pertinent to this case. His Honour said at [27]:

"... there is no general rule that determines whether sentences ought to be imposed concurrently or consecutively. The issue is determined by the application of the principle of totality of criminality: can the sentence for one offence comprehend and reflect the criminality for the other offence? If it can, the sentences ought to be concurrent otherwise there is a risk that the combined sentences will exceed that which is warranted to reflect the total criminality of the two offences. If not, the sentences should be at least partly 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. Of course it is more likely that, where the offences are discrete and independent criminal acts, the sentence for one offence cannot comprehend the criminality of the other. Similarly, where they are part of a single episode of criminality with common factors, it is more likely that the sentence for one of the offences will reflect the criminality of both."

1. Whether two or more offences are part of a single episode of criminality is obviously relevant to the question of concurrence or accumulation, but it is not necessarily determinative of it. As always, the decision turns upon the circumstances of the particular case. Clearly, in the present case the two offences constituted a single episode of criminality. The crucial question, however, is that posed by Howie J in the passage quoted: can the sentence for one of them comprehend and reflect the criminality of the other? I am satisfied that it cannot. The attempt to choke the victim was not a relatively minor act of violence incidental to the sexual offence. It was a serious and dangerous assault, involving a measure of criminality separate from the sexual intercourse. Some accumulation of sentence was called for.

1. In any event, an overall sentence of 9 years with a non-parole period of 6 months, while substantial, is insufficient to mark the gravity of these offences. In so saying, I have regard to the fact that the respondent was disinhibited by intoxication of some kind, which is consistent with his having apologised to the victim after the event. Of course, that intoxication provides some explanation for the offences but in no sense excuses them. Allowing for the differences between the cases to which we were referred and the present case, those cases support the proposition that the aggregate sentence here is inadequate.

1. Mr Strickland mounted an argument that this Court should exercise its discretion not to intervene even if error were established. The transcript of the sentence proceedings reveals that, after hearing the submissions of the representatives of the Crown and the respondent (neither of whom appeared in this Court), his Honour announced the sentences which he intended to impose and the fact that they would be concurrent. He then interposed another matter before embarking upon his remarks. Mr Strickland argued that the prosecutor should have taken the opportunity before his Honour commenced his remarks to submit that he risked falling to appealable error if he pursued the course which he had proposed.

1. I see no basis for the exercise of our residual discretion in these circumstances. In the course of submissions to his Honour the prosecutor had argued that the sentences should be partly cumulative. It is clear enough that when his Honour announced the orders he proposed, he had arrived at his decision and there was no basis upon which it was open to the prosecutor to canvas it. It is also clear enough that the reason his Honour did not immediately proceed to sentence was that it was convenient at that point to interpose the other matter.

1. On re-sentence, I have regard to a recent affidavit of the respondent in which he has expressed remorse for these crimes. He has also described the pain which he continues to experience from the injuries he suffered in the assault of 2008 which, he says, leaves him feeling "very vulnerable and fearful" within the prison where he is held. The affidavit also discloses that he has been undertaking general education and skills training while in custody.

1. I would allow the appeal. The court's intervention is confined to directing that the sentences be served partly cumulatively, the Crown prosecutor having conceded that the sentence on each count is within range. I would direct that the sentence on the first count, attempting to choke or strangle with intent, should commence 2 years later than the sentence on the second count, that is, on 31 October 2011. The result would be an aggregate sentence of 11 years. Because of the accumulation I would find special circumstances to the limited extent of reducing the non-parole period for the first count to 6 years and 3 months. The effective non-parole period, then, would be 8 years and 3 months, thus preserving the statutory ratio between that period and the aggregate sentence. The respondent would be eligible for release on parole on 30 January 2018.

1. I would propose the following orders:

(1)   Appeal allowed;

(2)   Sentence on the second count confirmed;

(3)   Sentence on the first count quashed and, 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.

1. GROVE AJ: I agree with Hidden J.

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Decision last updated: 27 September 2011