R v Pennisi

HELD per the Court (i) The sentence was not outside an appropriate discretionary range, given the extreme objective gravity of the offence and the applicant's intention to scare the deceased out of proceeding with a legal action against him by threatening the deceased with a gun: R v Chetcuti (unreported, New South Wales Court of Criminal Appeal, 24 December 1993).

(ii) The length of the non-parole period was appropriate;

(iii) The discount of 25% for the offer to plead guilty to manslaughter and the assistance provided to police was also appropriate.

ORDERS (i) Leave to appeal granted; (ii) Appeal dismissed. IN THE COURT OF CRIMINAL APPEAL CCA 60360/01 BEAZLEY JA WOOD CJ at CL CARRUTHERS AJ

Tuesday, 4 September 2001 R v Rosario PENNISI JUDGMENT 1 THE COURT: The applicant seeks leave to appeal against the sentence imposed by Bell J at the Supreme Court at Wollongong on 6 June 2001 for the manslaughter of Rodolfo Valentino. 2 The applicant was found guilty by a jury of the manslaughter of the deceased at Ulladulla on 5 April 2000. The deceased had died as the result of gun shot wounds, having been shot by the applicant ten times at close range. The killing occurred at about 7am in the car park of a small shopping centre when few people were around. The applicant was, at the time, engaged in a legal dispute with the deceased in relation to the applicant's tenancy of a small shop in the centre owned by the deceased. 3 The evidence was, and it was accepted by Bell J, that at the time of the killing and for some time prior thereto, the applicant had been considerably stressed by his circumstances and, at times, depressed. He had, on two occasions prior to the killing attempted to commit suicide. He said that on the morning of the killing he had taken a gun to the shopping centre and left it concealed at the scene. He returned home but returned to the centre a short time afterwards and loaded the gun. He said his intention was to scare the deceased in an attempt to have him drop the legal proceedings. If that 'tactic' had proved unsuccessful and the deceased called the police, which the applicant recognised was a possibility, the applicant had it in mind to shoot himself. He wrote two suicide notes at the scene. He destroyed the first, but the second was found and supported the applicant's version of his intentions. After the shooting the applicant returned home, but within a short period, decided to turn himself into the police. He did so within 45 minutes of the killing. He made a full confession and in all other respects cooperated with the police. 4 The applicant was charged with murder. The jury returned a verdict of not guilty on that charge, but guilty of manslaughter. The trial judge sentenced the applicant upon the basis that it was a case of manslaughter by unlawful and dangerous act. Consistent with the jury's verdict, her Honour accepted that notwithstanding the repeated firing of the rifle at close range in the direction of the deceased, the applicant did not intend to either kill him or do him grievous bodily harm. 5 Her Honour found and took into account that the applicant was a person of good character. She took into account that he had suffered from depression and was in a state of emotional distress in the weeks leading up to the killing. Her Honour accepted that he was truly remorseful for his crime. He has strong family ties and her Honour was satisfied that he did not pose a risk of re-offending in the future and that he had good prospects of rehabilitation subject to receiving counselling and support to address his problems with anxiety and/or depression. 6 He had offered to plead guilty to manslaughter prior to the committal proceedings. That offer was not accepted. A further offer to plead guilty following his committal for trial for murder was also rejected. As events turned out, the jury rejected the charge of murder and returned a conviction on the lesser offence of manslaughter. 7 As I have already indicated, the applicant assisted and co-operated with the authorities. Her Honour found that both these factors were relevant as the case would otherwise have been based upon circumstantial evidence. Her Honour considered that she should take into account the assistance given to the authorities and the early offer of a guilty plea to discount the sentence which she otherwise would have imposed by 25%. 8 Her Honour was also persuaded that special circumstances existed such as to justify a departure from the statutory proportion of 25% between the sentence and the non-parole period fixed by s 44(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW). 9 Taking those matters into account her Honour sentenced the applicant to a term of 9 years imprisonment to date from 5 April 2000 and specified a non-parole period of 6 years. She specified 4 April 2006 as being the earliest date on which he was eligible for release on parole. 10 The applicant seeks leave to appeal against the sentence on the basis that it is manifestly excessive. 11 Three grounds are advanced in support of the application. First, that the length of the sentence is comparable to a sentence which would have been imposed upon a person who had either intended to kill or to do grievous bodily harm, whereas the finding made by her Honour was that the applicant did not have such intention; secondly, the reduction under s 44(2) for special circumstances from the statutory one quarter to one third was "insufficient to the point of error"; and thirdly, the discount for the offered plea of guilty and the assistance provided to police was inadequate.

Sentencing Manifestly Excessive 12 Senior counsel for the applicant submitted that, having regard to her Honour's finding that the applicant's intent was not to kill or do grievous bodily harm to the deceased but to scare him, his culpability should be measured by reference to that intent. He sought to contrast this case, on the basis of the findings made by her Honour in that regard, with that of Isaacs v R (1997) 41 NSWLR 374. 13 In Isaacs, the victim had been beaten around the head by the convicted prisoner with a piece of dowel. He had placed tape around the dowel before the attack, explaining that he had done so because he expected to end up with skin and blood on the weapon and that by removing the tape he would be able, subsequently, to destroy the evidence. An effort was in fact made to destroy evidence of the violence. Isaacs was sentenced on the basis that he had intended to cause grievous bodily harm. He had not offered any plea and the sentencing judge had found that the prisoner's conduct following the killing was "not only inconsistent with contrition, but indicated a callous attitude which made the case even more serious", but that he was otherwise a person of prior good character. He was sentenced to penal servitude for 9 years, involving a minimum term of 5 years and an additional term of 4 years. The prisoner's appeal was dismissed. 14 In this case, the applicant had consistently and from an early time offered to plead guilty to manslaughter and her Honour had accepted that he was genuinely remorseful. It was submitted therefore, that Isaacs was a more serious case warranting more severe punishment than ought to have been imposed on this applicant. 15 The Crown, however, in supporting the trial judge's sentence, submitted that it has always been accepted and, as was expressly stated by the Court in Isaacs at 381, that "The range of sentencing available in the case of manslaughter is notoriously wide … sentencing on the basis of manslaughter by an unlawful and dangerous act would need to pay due regard to the [relevant] circumstance." 16 The Crown provided to the Court a number of cases which not only demonstrated this point but also, it was submitted, clearly demonstrated that her Honour's sentence was not outside a proper discretionary range. See for example: R v Bryant [1999] NSWCCA 181; R v Esposito [2000] NSWSC 284; R v MacDonald (unreported, New South Wales Court of Criminal Appeal, 12 December 1995); R v Oinonen [1999] NSWCCA 310. 17 The Crown further pointed out that there were other relevant circumstances here which reinforced its submission as to the appropriateness of the trial judge's sentence. In particular, it referred to the fact that the killing had occurred in circumstances where the applicant was attempting to dissuade the deceased from using the civil court system to assert his legal rights. In R v Chetcuti (unreported, New South Wales Court of Criminal Appeal, 24 December 1993) Loveday AJ (Finlay and Smart JJ agreeing) said at 27: "It is the utmost importance in the administration of justice that persons who seek to circumvent due court process by violent action should be severely punished so that others who might contemplate the like action should be deterred." 18 In addition, the Crown pointed to the extreme objective gravity of the applicant's conduct, and in particular to the facts that the applicant loaded the rifle at the scene and repeatedly fired it in the direction of the deceased. It was submitted that it was difficult to envisage a more serious example of manslaughter by an unlawful and dangerous act. 19 We do not consider that the sentence imposed by her Honour was outside an appropriate discretionary range, given the extreme objective gravity of the offence and the applicant's intention to scare the deceased out of proceeding with the legal action against him by threatening the deceased with a gun. Accordingly, no error has been demonstrated in this part of her Honour's judgment.

Length of the Parole Period 20 Section 44(2) of the Crimes (Sentencing Procedure) Act provides that the non-parole period must not be less than three quarters of the term of the sentence unless the Court decides there are special circumstances for it being less. 21 In this case, the special circumstance claimed to exist on behalf of the applicant and which her Honour found did exist was the need for a longer than usual parole period, given the history of anxiety and/or depression, for which her Honour considered the applicant would need support. This, of course, is a permissible basis for invoking the provisions of s 44(2): see R v Moffitt (1990) 20 NSWLR 114; Phelan v R (1993) 66 A Crim R 446 at 449-50; R v Farroukh (unreported, New South Wales Court of Criminal Appeal, 29 March 1996). It was submitted that having regard to this and the other factors which her Honour took into account, she erred in only reducing the statutory non-parole period from one-quarter to one-third, or, by somewhat less than 9%. 22 However, even when a court finds special circumstances, the sentence imposed must still appropriately reflect the criminality of the offence: R v Morrissey (unreported, New South Wales Court of Criminal Appeal, 15 July 1994); R v Kenworthy (unreported, New South Wales Court of Criminal Appeal, 3 August 1995). Manslaughter is a most serious crime. As the Court stated in R v MacDonald (unreported, New South Wales Court of Criminal Appeal, 12 December 1995): "Manslaughter involves the felonious taking of human life. This may involve a wide variety of circumstances, calling for wide variety of penal consequences. Even so, unlawful homicide, whatever form it takes, has always been recognised by the law as a most serious crime. (See R v Hill (1981) 3 A Crim R 397 at 402.) The protection of human life and personal safety is a primary objective of the system of criminal justice. The value which the community places upon human life is reflected in its expectations of that system." 23 When due regard is given to these competing factors, we do not see any error in her Honour's approach and accordingly reject this challenge to the sentence.

Discount for Plea and Assistance to Police 24 Section 22 of the Crimes (Sentencing Procedure) Act 1999 (NSW) provides that a court in passing sentence must take into account both a plea of guilty and the time at which such plea was indicated or entered and may, accordingly, impose a lower sentence than otherwise would have been the case. Section 23 of the Act, relevantly, provides that a court may impose a lesser penalty than it otherwise would have, having regard to the degree to which the offender has assisted the authorities in the investigation of the offence. 25 In R v Thomson & R v Houlton (2000) 49 NSWLR 383, the guideline judgment given by this Court relating to the discount which should be given in respect of pleas of guilty, the Chief Justice stated at 419 "Sentencing judges are encouraged to quantify the effect of the plea on the sentence in so far as they believe it appropriate to do so. This effect can encompass any or all of the matters to which the plea may be relevant - contrition, witness vulnerability and utilitarian value - but particular encouragement is given to the last-mentioned matter. Where other matters are regarded as appropriate to be quantified in a particular case, for example, assistance to authorities, a single combined quantification will often be appropriate. The utilitarian value of a plea to the criminal justice system should generally be assessed in the range of 10-25 per cent discount on sentence. The primary consideration determining where in the range a particular case should fall, is the timing of the plea." 26 The Chief Justice, had pointed out earlier, at 413, that "any such quantification would be by way of guidance only … [and] not … binding in any formal sense". He added at 419: "In so far as existing sentencing practice has been to allow discounts for pleas up to 35%, encompassing all relevant matters, such a practice remains appropriate." 27 As events turned out there was no utilitarian value in this case as the plea was not accepted. That does not reflect at all on the applicant and his offers to plead guilty to manslaughter were appropriately treated by her Honour upon the same basis as if they had been accepted. The gravamen of the submission made on the applicant's behalf is that given that plea and his immediate and complete assistance to police, the combined discount for both considerations should have been greater than 25%. 28 Even on a combined basis, her Honour allowed a discount at the outer end of the range. We do not see any error in her not having allowed a greater discount of, say, 35%, considered by the Court in R v Thomson to be about the ceiling for the discount for such combined considerations. 29 In summary, we are of the opinion that no error has been demonstrated in her Honour's sentencing process and that the sentence is within an appropriate discretionary range. The application for leave to appeal is allowed and the appeal is dismissed. ********

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