Citation: R v Di Cianni and Pintabona [2013] NSWSC 1328
Court: Supreme Court of New South Wales
Date: 13 September 2013
Judge: R S Hulme AJ
Background
A jury convicted the first offender of the murders of two brothers at their Rozelle home on 6 May 2009. The victims were killed several hours apart: the first was stabbed before the second arrived home, and the court found that the first killing was carried out to clear the way for the second. The second victim had been in a longstanding and acrimonious business relationship with the offender, involving mutual allegations of fraud, multiple apprehended violence orders, and failed criminal and civil proceedings.
The second offender, a woman, was convicted not of murder but of being an accessory after the fact to both murders. A scarf found at the scene contained DNA consistent with both offenders and one of the victims. The court found the scarf belonged to the second offender and had been brought to the scene by the first.
The sentencing proceedings required the court to determine the appropriate penalties for two murders and two counts of accessory after the fact, taking into account the objective seriousness of each offence and the subjective circumstances of each offender.
Legal Issues
- Whether the two murders fell within the worst-case category warranting the maximum penalty of life imprisonment
- Where each offence sat on the scale of objective seriousness, having regard to factors including planning, motive, and the circumstances of each killing
- What weight to give to the standard non-parole period of 20 years for murder under the Crimes (Sentencing Procedure) Act 1999
- How to structure partially accumulated sentences for two separate offences committed by each offender
- Whether special circumstances existed justifying adjustment of the non-parole and balance-of-term components for the accessory
Decision
Hulme AJ declined to accept the Crown's submission that the murders fell into the worst-case category. While the offences were serious, the court was required to locate them on the scale of objective seriousness across all murder cases, and the statutory maximum is reserved for the gravest examples. The court found, however, that there was an appreciable degree of planning and premeditation: the offender had attended in disguise, exploited apparent CCTV cameras that were in fact inoperative, remained on the premises between the two killings, moved the first victim's body to reduce the risk of alarming the second, and left no fingerprints. The killing of the first victim served the instrumental purpose of enabling the second murder.
The court identified the motive for killing the second victim as accumulated antipathy arising from the business dispute, likely brought to a head when the criminal and civil proceedings collapsed in late April 2009. There was no apparent prior connection or hostility between the offender and the first victim, reinforcing the inference that the first killing was a means to an end.
For the accessory convictions, the court treated the second offender's culpability as significantly lower than the principal's. Her sentences were set to run partially concurrently, with the court finding special circumstances in the accumulation of sentences and adjusting the non-parole and balance-of-term components accordingly.
Orders Made
Di Cianni (murder of first victim):
- Non-parole period of 20 years commencing 18 August 2010, with a further term of 4 years
Di Cianni (murder of second victim):
- Non-parole period of 20 years commencing 18 August 2020, with a further term of 4 years
- Earliest parole eligibility: 18 August 2040
Pintabona (accessory after the fact to murder of first victim):
- Non-parole period of 2 years and 3 months commencing 13 March 2013, with a further term of 9 months
Pintabona (accessory after the fact to murder of second victim):
- Non-parole period of 2 years commencing 13 March 2014, with a further term of 1 year
- Earliest parole eligibility: 13 March 2016
Key Takeaways
- The Supreme Court confirmed that life imprisonment for murder is reserved for offences falling within the worst-case category, and declined to place these murders in that category despite their planned and calculated nature.
- Evidence of premeditation, including disguise, manipulation of the crime scene, and the instrumentalisation of one victim's death to facilitate another's, was treated as a significant aggravating feature going to objective seriousness.
- Under the Crimes (Sentencing Procedure) Act 1999, the standard non-parole period of 20 years for murder represents the midpoint of objective seriousness, and all relevant subjective and objective factors must be weighed alongside it, consistent with Muldrock v The Queen [2011] HCA 39.
- Partial accumulation of sentences for separate murders was found appropriate where the offences, though connected in time and place, were distinct in their victims and circumstances.
- An accessory after the fact to murder attracts a maximum of 25 years' imprisonment, and the court's sentencing reflected that such an offender's culpability is substantially lower than that of the principal offender.
Legislation and Cases Referenced
Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 54A et seq.
Cases:
- Ibbs v R (1987) 163 CLR 447
- Veen v R (No 2) (1988) 164 CLR 465
- Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120
- Nguyen v The Queen [2007] NSWCCA 363; (2007) 180 A Crim R 267
- R v Cowen [2008] NSWSC 104
- R v Farroukh (Court of Criminal Appeal, 29 March 1996, unreported)
- R v Faulkner [2000] NSWSC 944
- R v Hawken (1986) 27 A Crim R 42
- R v Howell (1839) 9 C & P 437
- R v Mahmood [2010] NSWCCA 219
- R v Previtera (1997) 94 A Crim R 76
- R v Sciberras [2006] NSWCA 268
- R v Vanderstein, Harris and Somerville (1865) 10 Cox CC 177
- R v Ward [2004] NSWSC 420
- R v Wells [2008] NSWSC 206