Court of Appeal (Vic)|2009-12-01|Before: NEAVE and BONGIORNO JJA, BYRNE AJA

DPP v Pennisi [2009] VSCA 322 (1 December 2009)

1 The order of the Court in this matter is that the appeal is dismissed, and I will ask Justice Bongiorno to read the judgment of the Court.

2 On 25 February 2007, Ralph Matthew Pennisi killed his then de facto wife, Michelle Louise Bishop, by strangling her at the home they shared in Thornbury with six of Ms Bishop's children. Pennisi was the father of two of those children. Both Pennisi and Ms Bishop were heroin users, she probably to a greater degree than he was. Having killed her, Pennisi disposed of Ms Bishop's body by wrapping it in plastic sealed with adhesive tape and placing it in a storm water drain about two days after her death. In the meantime, and subsequently, he lied about the death to his family and friends, accusing Ms Bishop of having voluntarily left him and her children, or perhaps having met with foul play as a result of her contact with drug dealers in the course of satisfying her heroin habit.

3 On the morning of 1 March, Pennisi reported Ms Bishop missing to the police and in the course of doing so made a false statement concerning his belief as to her whereabouts. However, later the same day he was arrested by police and questioned as to his involvement in Ms Bishop's death. Upon being confronted with an allegation that he had been criminally involved in that death, he immediately admitted that involvement. He then participated in an interview at the Homicide Squad office in the early hours of 2 March 2007.

4 In that interview, Pennisi told police that, late on the day of her death, he and Ms Bishop had been arguing over money that her mother had given him to give to her. The money, $100.00, was needed by Ms Bishop to buy heroin, but Pennisi had lost it either by gambling on poker machines or actually physically losing it in some other way. Ms Bishop was angry. Pennisi then took her back to an RSL club, where she believed her mother was, and was able to obtain money from her mother's

boyfriend to replace, at least in part, the lost $100.00. On the way home, Ms Bishop obtained alcohol from an outlet in Fitzroy and heroin from a dealer in Richmond.

5 A heated argument between Pennisi and Ms Bishop in the car over this money continued when they arrived home. On Pennisi's version of events, Ms Bishop physically attacked him in the living room of their home. He said Ms Bishop had been striking him with her fists and at some point obtained a blue rope, possibly used as a dog lead. She put it around his forehead. In the course of this altercation the couple moved to a bedroom, where Pennisi put his hands around Ms Bishop's throat as he wrestled with her on a bed. It was whilst Pennisi was on top of Ms Bishop with his hands around her throat - or possibly the rope, which he had wrested from her, around her throat - that she ceased struggling. He told the police:

She was trying to hit me and I just kept trying to stop her and then I remember being on top of her and I had my hands around her throat and I squeezed and then she, like, made a funny noise and just absolutely stopped. She just - like - like the energy just - it was like it just switched off and I was on top of her. During - during the wrestle I think I ended up putting the rope around her neck and nobody woke up. The noise we were making, no one got up. If someone had have walked out, it wouldn't have gone this far. I kept tellin' her to, "Shut up, shut up. You're gonna wake up all the kids." After she was laying there. I was trying to find a pulse. I couldn't hear her heart, I couldn't feel a pulse and then I realised she was dead and then I said a prayer.

6 Pennisi was charged with murder and stood trial in the Trial Division of this Court in September 2008. He was acquitted of murder but convicted of manslaughter and on 20 November sentenced to ten years' imprisonment with a seven-year minimum by the trial judge.

7 Shortly prior to his trial, Pennisi had offered to plead guilty to manslaughter, which plea had not been accepted by the Crown. In sentencing him for manslaughter, the trial judge accepted the possibility that Ms Bishop's death had been probably instantaneous, or almost so, as a result of carotid sinus stimulation leading to a reflex stopping of the heart but he found that Pennisi had his hands or the rope around Ms Bishop's neck for more than 'a mere instant'. The trial judge found that the jury's verdict meant that Pennisi had unintentionally killed Ms Bishop in anger. It was an unintentional homicide.

8 In sentencing Pennisi, the trial judge took into account a psychiatric diagnosis of chronic mild depression which was not such as to reduce his moral culpability for this crime but should moderate his sentence to a slight degree because of the fact of imprisonment weighing more heavily upon him than it might upon someone in a more robust mental condition. His Honour found that Pennisi's relationship with the deceased was not a violent one and that the indications were that he was not a violent man. He was a good worker when not affected by drugs and, although he originally tried to hide the crime he had committed, he eventually accepted the consequences of it and displayed contrition for it. He was a model prisoner in gaol and had taken steps to rid himself of his drug habit. His Honour referred to the devastating effect Ms Bishop's death had on her children and her family and the burden which it will throw on them, particularly on her mother, in caring for those children. Finally, his Honour fixed what he described as a relatively short non-parole period because of Pennisi's good prospects of rehabilitation.

9 The Crown now appeals that sentence of ten years' imprisonment, contending that both it and the non-parole period are manifestly inadequate. Although it had originally raised another ground concerned with specific judicial error in the sentencing process, that ground was abandoned at the commencement of the Chief Crown Prosecutor's submissions. It need not be considered further.

10 The Chief Crown Prosecutor argued that the circumstances of this manslaughter put it in the third quartile of seriousness, deserving a sentence of ten to fifteen years' imprisonment. Specifically, he referred to Pennisi's late offer to plead guilty and his failure to plead guilty when arraigned as diminishing the mitigatory effect of that offer.

11 The lateness of the plea offer certainly diminishes the value which might have been attached to an earlier plea. However, it was an offer which, if accepted, would have had the utilitarian benefit of preventing the necessity for a trial. As far as his failure to plead on arraignment is concerned, we accept counsel for Pennisi's argument that there is, rightly or wrongly, a perception that there is a forensic disadvantage in pleading guilty to manslaughter in a murder trial, even where intent is the only real issue. Whether this is a correct perception or not is beside the point. Once the Crown has rejected the plea offer made before trial, there is no utilitarian purpose to be served by an accused pleading guilty to manslaughter on arraignment, even if, had he done so, he might have been able to have it taken into account on questions of remorse, contrition or the like.

12 In R v A B (No 2),[1] this Court in 2008 drew attention to the significance of a maximum penalty in fixing a sentence of imprisonment. In particular, it referred to the fact that, in the case of manslaughter, although the maximum penalty had been increased from 15 to 20 years, there appeared to have been little effect on sentencing practice, particularly for those cases in the worst class. The Court held that a 33 per cent increase in the maximum sentence should have substantial implications in the worst class of case and remains of relevance even in those cases not in that class.

13 Having regard to the sentence imposed in this case, the sentencing judge treated Pennisi leniently. However, although ten years is at the bottom of the range of sentences which the Chief Crown Prosecutor argued would be appropriate in this case, it is still within that range.

14 Charles JA, in R v Clarke,[2] in setting out the criteria which should govern Crown appeals, said that before this Court should increase a sentence on such an appeal, it must be satisfied that the sentence imposed is so disproportionate as to

show that an error in principle has occurred, or that the sentence is so lenient as to shock the public conscience. Although the sentence in this case is lenient, applying these criteria, and bearing in mind that any increase would have to be subject to a consideration of the principle of double jeopardy, we are not prepared to disturb the trial judge's sentence in this case.

16 The formal order of Court is that the appeal is dismissed.

17 A certificate will be granted to the respondent under the Appeal Costs Act 1998.

DPP v Pennisi [2009] VSCA 322

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DPP v Pennisi [2009] VSCA 322 (1 December 2009)

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