DPP v Pennisi [2008] VSC 498

2 She died in horrible circumstances. You and she fought in the early morning of 25 February last year. It seems that the cause of the quarrel was your failure to deliver to her a sum of money with which you had been entrusted. Whether it fell from a pocket, or was lost by some similar means, or whether you gambled it away, is not a matter for me to determine.

3 The fight began in the living room of the house you shared with Ms Bishop, your partner of some six years, and the six children. On your own account, you grabbed her and pushed her on to the couch. She resisted; indeed doubtless used whatever strength she had to force you to desist. She may have attempted not only to resist, but to attack. At all events, the struggle continued as you both moved towards, and then into, your bedroom. On the way, you gained possession of a length of rope. I proceed on the basis that this was by accident rather than premeditated intent. You found yourself on the bed, with Ms Bishop underneath you. You were clearly in physical command as you put the rope and your hands around her neck. Although she was not a physically weak woman, she was at that time within your power.

4 The jury were asked to accept as a reasonable possibility that death was instantaneous, or almost so: the result of carotid sinus stimulation causing a reflex stopping of the heart. The jury's verdict is consistent with their accepting this as a reasonable possibility. I must therefore also accept it as such. There can be no doubt, however, that you had your hands, or the rope, or both, around Ms Bishop's neck for more than a mere instant. I regard what you did as in a different and more serious category than, for instance, a single blow.

5 Your counsel described Ms Bishop's death as accidental. I reject that description. Her death was an accident only in the sense that you did not intend it, and were surprised by it. It was not an accident in the more relevant sense that a reasonable person in your position would have realised that you were exposing Ms Bishop to an appreciable risk of serious injury. You were, as you told the police, angry. I am satisfied beyond reasonable doubt that it was your anger, and not fear for yourself (still less fear for Ms Bishop) which explains why you went beyond defence and - from a position in which you could have physically restrained her - proceeded instead either to strangle her or at least to place her in danger of strangulation or carotid sinus stimulation.

6 So Ms Bishop was killed on her own bed, in her own home, in circumstances of violence, by a person to whom she ought to have been able to look for support. This is a factor which aggravates your criminality.

7 There are other factors which have the same effect. They concern your behaviour after you realised that Ms Bishop was dead. You carefully wrapped her body in layers of plastic and a blanket. These were secured by tape. Later that morning, you drove the body to your mother's garage, and some time later again you attempted to dispose of it by placing it in a sewage inspection pit in your mother's back yard. The rope remained around Ms Bishop's neck.

8 Meanwhile, you went to considerable lengths to conceal the fact of her death from her friends, the police, and her family - including your children. You took Ms Bishop's mother on a search for her. There was an element of cruelty in this; there was the same element of cruelty in your telling others, again including the children, that you had made additional attempts to find her. You reported her disappearance to the Northcote police on Monday 26 February 2007, and returned to make a statement at the Northcote Police Station on Thursday 1 March. You made that statement with an acknowledgment that, if the statement was false, you would be liable to the penalties of perjury. In it, you stated that you fell asleep after the disagreement over the lost money, waking up the next morning to find Ms Bishop gone. You described how later that day you called home from your mother's house maybe five to seven times to ask whether Ms Bishop had returned. Those calls were answered by different children, each of whom told you what you already knew: that their mother was not present.

9 This behaviour might have been the result of fear for the future of your children if their mother was dead and you were in gaol. It might have been the result of fear for yourself, since you must have known that you would be implicated in Ms Bishop's death. Whatever motivated you in the hours and days after she died, it was not remorse. Any remorse you might then have felt was given no chance of influencing your behaviour. If you felt any real remorse, you would not have added to the pain of your partner's relatives and friends, and to the anger they would in the end almost inevitably feel for you, by deceiving them about her fate.

10 It is possible that, when you realised that Ms Bishop was dead, and that you had killed her, or at least might have done so, you panicked. If that were the case, your panic did not prevent you carefully wrapping the body and then doing it the indignity of hiding it in a sewerage inspection pit.

11 This behaviour of yours is relevant for sentencing purposes. It not only negatives remorse at the time of the behaviour, but also adds to the gravity of the offence.

12 Other factors, however, must be taken into account. You were born on 8 January 1972. You have, according to the psychiatrist Dr Danny Sullivan, been suffering from depression, mild in severity, since your childhood. This was a consequence, at least in part, of your father falling very ill when you were only one year old, and never recovering until his death in 1979. As one consequence, a huge burden was thrown upon your mother. As another, you developed a depressive illness.

13 This depression has prevented your removal from the Melbourne Assessment Prison, because it is only there that you can be given the psychiatric care you require. It will result in imprisonment weighing more heavily on you than it would on a person in normal health. I have taken this into account in deciding upon the sentence which I think is appropriate in your case.

14 Otherwise, your health is not of particular relevance for sentencing purposes. It was not such as to reduce the moral culpability of the offending conduct. The denunciation of that conduct is therefore one of the purposes which I bore in mind when fixing your sentence. I have also taken into consideration issues of general and specific deterrence, both of which are in your case moderated only slightly by any reduction in your mental capacity caused by your depression. And there is no evidence of a serious risk that imprisonment would of itself have a significantly adverse effect on your mental health. The fact that you killed your partner will have more influence than any other factor on that health. It will tend to exacerbate your depression. And while some offenders with impaired mental functioning may not be appropriately punished by imprisonment, imprisonment remains appropriate for you.

15 While saying that, I acknowledge at the same time that some important considerations lessen your moral culpability. First, your relationship with Ms Bishop was not a violent one. All the indications are that, at least until the fatal fight broke out in late February 2007, you were not a violent person. Indeed, the contrary appears to be the case.

16 Secondly, you were a good worker, at least when drugs did not get in the way. You were a skilful and conscientious motor trimmer. Your employer and customers had a high regard for you.

17 Thirdly, you did eventually show remorse. After you knew that you were a person of real interest to the police, you dropped the layers of pretence with which you had attempted to protect yourself. You showed the police where the body was. When asked at the end of the police interview if you had anything to add, you said you were sorry. You made, in court through your counsel, an open apology to your victims. You have been a model prisoner and by your behaviour since being in prison had demonstrated as well as one can in these circumstances that you are remorseful. This, I have no doubt, is mixed so inextricably with self-pity as to be impossible to measure as a separate and distinct component of your thinking. But remorse exists nevertheless.

18 Because you do feel remorse, and because you have employable skills, and because - as I accept - you do intend to be a good father to your children and contribute to their maintenance, I think that your prospects of rehabilitation are likewise good. To that I add the fact that since entering the corrections system you have become drug free, even overcoming methadone dependence. This is a significant factor in your favour.

19 You have some prior convictions, but none arising out of violence. Nevertheless, I cannot sentence you as a person of good character.

20 You were at an early point prepared to plead guilty to manslaughter. That willingness did not extend to your pleading guilty in front of the jury, so the trial proceeded on a plea of not guilty. You never formally pleaded guilty to the crime of which you were convicted. Nevertheless, I have taken your willingness to offer a plea as a mitigating circumstance, although of limited importance.

21 In sentencing an offender, the Court must have regard to a number of factors. One of them is the impact of the offence on any victim of the offence. Ms Bishop's mother and children have been severely and adversely affected by her loss. The children - all of them, including the eldest, Matthew - are young enough to feel with the keenness of youth the loss of a good and capable mother.

22 The burden of raising the children has fallen upon Ms Bishop's mother. I have found her victim impact statement to be an eloquent portrayal of the difficulties she now faces in raising her grandchildren - and an eloquent and truthful description of her deep sorrow at the loss of her daughter.

23 Although Matthew is generally a help to his grandmother in her care of his siblings, his inexperience as a parent, together with his status as a sibling, means that his assistance sometimes adds to Mrs Bishop's burden. Apart from this, Mrs Bishop will never again experience at first hand the love of her daughter - while the children will likewise be deprived forever of a mother who filled a place in their lives that only a good mother can.

24 Weighing as best I can the many factors relevant to the sentencing decision, I am of the opinion that your offence warrants a sentence of 10 years' imprisonment. Because of your good prospects of rehabilitation, and your behaviour as a model prisoner, I think that a relatively short period should be fixed before you become eligible for parole. I fix that period at 7 years. I declare that the period of 631 days be reckoned as already having been served under this sentence. I further direct that this declaration and its details be entered in the records of the Court.