Citation: R v Salvatore Vincenzo Cutrale [2011] NSWCCA 214
Court: Court of Criminal Appeal, New South Wales
Date: 22 September 2011
Judge(s): McClellan CJ at CL, Hidden J, Grove AJ
Background
The respondent was sentenced in the District Court following guilty pleas to two charges arising from a single incident in October 2009: attempting to choke or strangle with intent to commit an indictable offence (maximum 25 years, under s 37 of the Crimes Act 1900), and sexual intercourse without consent (maximum 14 years, under s 61I). The offences involved a random attack on a young woman in a Sydney park, during which the respondent strangled her into unconsciousness and sexually assaulted her while she was unconscious.
The District Court sentenced the respondent to 9 years imprisonment (non-parole period 6 years and 9 months) for the choking offence and 7 years (non-parole period 5 years and 3 months) for the sexual assault, both sentences commencing on the date of arrest. Both sentences were ordered to run wholly concurrently, producing an aggregate of 9 years. The sentencing judge reasoned that the two offences constituted "one course of criminal conduct."
The Crown appealed, conceding that each individual sentence was within the acceptable range but arguing that the wholly concurrent structure produced an aggregate sentence that was manifestly inadequate because it failed to reflect the totality of the respondent's criminality.
Legal Issues
- Whether the sentencing judge erred by imposing wholly concurrent sentences for two discrete serious offences arising from the same incident.
- Whether the aggregate sentence of 9 years adequately reflected the totality of the respondent's criminality.
- Whether residual discretion should be exercised to decline relief, given that the prosecutor did not object at sentencing when the judge announced his proposed orders.
Decision
The Court of Criminal Appeal held unanimously that imposing wholly concurrent sentences was an error. Hidden J, with whom McClellan CJ at CL and Grove AJ agreed, found that the two offences were factually connected but legally distinct, and that the choking offence was not merely a means to facilitate the sexual assault. The strangulation was a serious crime in its own right, causing the victim to lose consciousness and risking death or permanent brain damage. The concurrent structure meant the respondent received no additional punishment for one of those two grave offences.
Hidden J applied the principles from R v MW [2007] NSWCCA 291, which involved a materially similar fact pattern. That case confirmed that where distinct offences are committed in the same episode, courts must still assess whether full concurrency produces an aggregate that fails the totality principle. The fact that offences arise from a single episode does not automatically justify fully concurrent sentences, particularly where each offence involves significant independent criminality.
The Court rejected the respondent's argument that residual discretion should be exercised to refuse relief because the Crown prosecutor had not objected at the sentencing hearing. Hidden J found that by the time the judge announced his proposed orders, the decision had plainly been reached and there was no meaningful opportunity for the prosecutor to reopen the question. The failure to object at that point did not disentitle the Crown from pursuing the appeal.
On resentencing, the Court directed partial accumulation. The sentence for the choking offence was ordered to commence two years after the commencement of the sentence for the sexual assault. The Court found special circumstances to reduce the non-parole period for the first count, to preserve the statutory ratio between the effective non-parole period and the aggregate sentence.
Orders Made
- Appeal allowed.
- Sentence on the second count (sexual intercourse without consent) confirmed: 7 years imprisonment, non-parole period of 5 years and 3 months, commencing 31 October 2009.
- Sentence on the first count (attempting to choke with intent) quashed and replaced: non-parole period of 6 years and 3 months commencing 31 October 2011 and expiring 30 January 2018; balance of term of 2 years and 9 months commencing 31 January 2018 and expiring 30 October 2020.
- Aggregate sentence: 11 years imprisonment; effective non-parole period of 8 years and 3 months; eligible for parole on 30 January 2018.
Key Takeaways
- Wholly concurrent sentences for distinct offences arising from the same episode may still produce a manifestly inadequate aggregate sentence where each offence involves independently serious criminality, even if each individual sentence is within range.
- The Court of Criminal Appeal confirmed that the totality principle requires a court to assess the combined effect of its sentencing orders, not merely the appropriateness of each sentence in isolation.
- Where a choking offence renders the victim unconscious and a sexual assault then occurs while the victim is unconscious, the two offences are not so intertwined that the first must be treated purely as a mechanism for the second. Each carries its own gravity.
- A prosecutor's failure to object when a sentencing judge announces proposed orders does not necessarily attract the exercise of residual discretion to refuse a Crown appeal, particularly where the judge's decision was plainly finalised before any objection could meaningfully be made.
- Finding special circumstances to adjust the non-parole period can be appropriate where partial accumulation is imposed, to preserve the correct statutory ratio between the non-parole period and the total head sentence.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), ss 37 (attempt to choke or strangle with intent) and 61I (sexual intercourse without consent)
- Crimes (Appeal and Review) Act 2001 (NSW)
Cases:
- 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