Citation: R v Alex Cittadini [2009] NSWDC 179
Court: District Court of New South Wales
Date: 10 July 2009
Judge(s): Norrish QC DCJ
Background
The offender was the Managing Director of an engineering group that contracted to construct a racing yacht called "Excalibur." During construction, the yacht's retractable keel was cut horizontally on both sides and then re-welded, contrary to the original design. This modification left the keel structurally defective.
On 16 September 2002, the Excalibur sank in darkness approximately 20 miles off Seal Rocks, north of Port Stephens. Four crew members died: Christopher Heyes (aged 51), Ann Maree Pope (aged 30), Peter McLeod (aged 51), and Tracy Luke (aged 32).
The offender was tried over approximately five weeks and found guilty by a jury on 2 April 2009 on four counts of manslaughter by criminal negligence. A co-accused employee was acquitted of the same charges. The proceedings before the District Court on 10 July 2009 were for sentencing only.
Legal Issues
- What were the appropriate sentences for four counts of manslaughter by criminal negligence arising from the same criminal episode?
- Whether sentences should be served concurrently, partially accumulated, or fully accumulated, having regard to the totality principle.
- Whether special circumstances existed under s 44 of the Crimes (Sentencing Procedure) Act 1999 to justify adjusting the non-parole periods.
- Whether any of the sentences could be suspended.
Decision
The court accepted that the offender's criminal liability arose from his failure, as the person responsible for the construction of the Excalibur, to implement adequate supervision and quality control. The acquittal of the co-accused weakened (but did not eliminate) the Crown's case that the offender had personally directed the defective keel modification. The court proceeded on the basis that the offender's culpability lay primarily in the omission to maintain adequate oversight, rather than in a direct act.
On the question of totality, the court structured the sentences so that the terms for Counts 3 and 4 were partially accumulated upon the terms for Counts 1 and 2. This approach acknowledged that the four deaths arose from a single episode of negligence, while still reflecting the full gravity of four separate lives lost. Full concurrency would have understated the overall criminality; full accumulation would have produced a crushing result disproportionate to the offender's culpability.
The court found that the lengths and structure of the sentences made suspension impermissible under the Crimes (Sentencing Procedure) Act 1999. The court also found special circumstances warranting adjusted non-parole periods for the partially accumulated sentences. Those special circumstances included the effect of accumulation itself, the offender's need for assistance from Community Corrections to reintegrate upon release, and the appropriate period of post-release supervision. Mitigating factors noted included the offender's lack of prior criminal history, his age, and the impact of incarceration on his family, including school-aged children.
Orders Made
- Counts 1 and 2: Convicted and sentenced to 2 years 6 months imprisonment on each count, commencing 10 July 2009 and expiring 9 January 2012. Non-parole period of 1 year 6 months, expiring 9 January 2011.
- Counts 3 and 4: Convicted and sentenced to 2 years 6 months imprisonment, commencing 10 January 2010 and expiring 9 July 2012 (partially accumulated upon the earlier sentences). Non-parole period of 1 year, commencing 10 January 2010 and expiring 9 January 2011.
- Upon expiry of the non-parole period, the offender is to be released to parole supervised by the NSW Parole Board through Victorian Community Corrections.
Key Takeaways
- Manslaughter by criminal negligence can be established through omission, specifically through a failure to implement adequate supervision and quality control systems, where that failure creates a foreseeable risk of death or serious bodily harm and falls so far short of the standard of a reasonable person as to warrant criminal punishment.
- The totality principle governs the structuring of multiple sentences arising from a single episode of negligence. Partial accumulation, rather than full concurrency or full accumulation, may be appropriate where multiple deaths result from a single course of criminal conduct.
- Special circumstances under s 44 of the Crimes (Sentencing Procedure) Act 1999 can be established where sentences are partially accumulated, since accumulation itself affects the adequacy of the non-parole period relative to the overall sentence length.
- A co-accused's acquittal does not automatically defeat the Crown case against a remaining accused, though it may weaken a specific factual allegation common to both prosecutions.
- Suspension of a sentence of imprisonment is unavailable where the length and structure of the terms make it impermissible under the Crimes (Sentencing Procedure) Act 1999, regardless of other mitigating factors.
Legislation and Cases Referenced
Legislation
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 5, 44, 47
- Costs in Criminal Cases Act 1967 (NSW)
Cases
- 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 December 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 (1988) 166 CLR 59
- R v Yeoman [2003] NSWSC 194
- H v HA [2004] NSWSC 1368