Regina v Pennisi

THE SUPREME COURT OF NEW SOUTH WALES CRIMINAL DIVISION

BELL J 6 June 2001 70064/00 - Regina v Rosario PENNISI

1 On 7 May 2001 the prisoner, Rosario Pennisi, was arraigned before me on an indictment charging him with the murder of Rodolfo Valentino at Ulladulla on 5 April 2000. The prisoner entered a plea of not guilty and a jury was empanelled. On 11 May 2001 the jury returned a verdict of not guilty of murder but guilty of manslaughter. 2 The deceased died as the result of gun shot wounds. He was shot ten times at close range as he stood in the car park of the Top of the Town shopping centre, Ulladulla. 3 There were no witnesses to the killing. Shortly after shooting the deceased the prisoner surrendered himself to police at the Ulladulla Police Station. Thereafter he participated in a lengthy video recorded interview with Detective Senior Constable Hines ("the ERISP"). In the course of the ERISP the prisoner gave an account of the killing making a number of frank admissions. Later that day he participated in a re-enactment of the crime at the scene. This was also video recorded. 4 At the trial Detective Hines agreed that the prisoner had been completely cooperative in the course of the investigation. Such information as the prisoner provided which was susceptible of verification proved to be truthful. 5 I approach the matter of sentence upon an acceptance of the version given by the prisoner in the course of his interviews with Detective Hines and in the course of his evidence given at the trial. 6 The deceased was the proprietor of the Top of the Town shopping centre. Some time prior to the shooting the prisoner leased premises at the centre from the deceased and opened a chicken shop. There were difficulties between the two which led to the prisoner selling his business and returning to his former occupation as a fisherman. 7 The deceased commenced legal proceedings against the prisoner seeking to recover one month's unpaid rent together with compensation for what was said to be the poor state of repair of the premises at the time the prisoner vacated them. The prisoner accepted that one month's rent was owed to the deceased but otherwise considered that the claim brought against him was an unjustified one. Rightly or wrongly it was the prisoner's perception that the deceased had dealt with him unfairly over the lease of the shop and that this had caused him to sell his business at a significant loss. 8 The prisoner was the owner of a .22 calibre Ruger semi-automatic rifle. He used the rifle in the course of his work to shoot tuna. At about 5.30 am on the morning of the shooting the prisoner collected his rifle and drove to the Top of the Town shopping centre. He wrapped the rifle in a pair of track suit pants and left it concealed it at the scene. He returned home for a short time. Prior to 7.00am the prisoner walked back to the shopping centre. On his way he purchased a pad and pen at a local service station. When he got back to the Top of the Town he sat down in the garden outside the complex and wrote a suicide note. He burnt that note and then wrote a second. This note survived and was in evidence at the trial. There are passages in it which are suggestive that at some point it had been the prisoner's intention to visit some harm upon the deceased and then to kill himself. 9 Throughout his lengthy interviews with the police on the day of the killing and in evidence at the trial the prisoner maintained that he had intended to confront the deceased with the gun and scare him. He expected the deceased to apologise to him and to offer to drop his civil suit. In evidence the prisoner said that he had in mind two possible outcomes from his confrontation with the deceased; either the deceased would apologise to him or the deceased would call the police. In this latter event the prisoner said he would have shot himself. 10 The prisoner did not recall the contents of the suicide note. The contents of that note, together with the prisoner's history in the weeks leading up to the shooting, incline me to the view that he was in a state of some emotional turmoil and confusion at the time. Notwithstanding the contents of the note, in the light of the verdict and my acceptance of the prisoner's statements in the ERISP and in evidence, I approach the matter upon the basis that at the time the prisoner first confronted the deceased in the car park he had it in mind only to scare him. 11 The prisoner said that the deceased parked his car in front of his shop, alighted from it and called out to him "what are you doing here, you dickhead?" Some further remarks were directed to him in this vein. The deceased went to move a number of garbage bins which were located by the side of his shop. The prisoner walked over to the spot where he had left the rifle and picked it up. He approached the deceased saying "who's the dickhead, now?" The prisoner said that he believed that the deceased, on seeing the gun, would have taken fright and apologised to him, offering to drop the civil action. To his surprise the deceased advanced upon him and endeavoured to wrest the gun from him telling him that he was being stupid. The prisoner backed away and the deceased continued to advance upon him. The deceased succeeded in taking hold of the barrel of the gun. There was a brief tug-of-war during which the gun discharged, wounding the deceased in the stomach. Consistent with the evidence of Dr Cala, who conducted the post-mortem examination, it would appear that the wound to the deceased's abdomen (whether it was wound number 6 or wound number 7 as described by the Doctor) was not immediately incapacitating. 12 It appears that the deceased was a man of considerable physical courage. After the first shot he yelled out "you shot me, you dickhead" and renewed his efforts to disarm the prisoner. On the prisoner's account he panicked and repeatedly fired the gun in the direction of the deceased. The shots were all fired at close range. All struck the deceased. 13 The deceased fell to the ground and the prisoner commenced to flee from the scene. He endeavoured to reload the rifle as he ran. He said that he thought that the police might arrive at any moment and, in such an event, he had it in mind to shoot himself. As things turned out he was not able to load the magazine properly and a number of unfired cartridge cases fell to the ground and were later recovered by police. The prisoner then ran back to the deceased's body and removed a set of car keys. He fled the scene driving the deceased's car. 14 The prisoner drove to his home. There he attempted to conceal the rifle behind a chair in the lounge room. His wife observed his suspicious behaviour. The prisoner told her to collect the children and leave the home. At this time he entertained the belief that the police would storm the home and that in an ensuing shoot out one of the children might be harmed. When his wife made it plain that she was not going to leave the home the prisoner decided that he should surrender himself to the police to avoid any risk to his family. He asked his wife to take him to the Police Station. The deceased was shot about 7.00 am. The prisoner handed himself into the police at about 7.45 am. 15 The alternative verdict of manslaughter was left to the jury upon either of two bases; (i) that the Crown had failed to establish that the act causing death was accompanied by the requisite intent for murder and (ii) provocation. At trial the matter was conducted on the prisoner's behalf upon the former basis. Neither the Crown nor counsel for the accused addressed any submission to the jury as to provocation. 16 It is necessary for me to determine the facts relevant to sentencing. I am constrained to do so consistent with the verdict of the jury. This does not require me to embark on the exercise of determining the basis upon which the jury returned its verdict of manslaughter; R v Isaacs (1997) 41 NSWLR 374 at 378. 17 Mr Littlemore QC submitted that I would approach the matter of sentence upon a view of the facts most favourable to the prisoner. In his submission this would lead me to find that this was a case of manslaughter by unlawful and dangerous act. I do not accept that I am required to sentence upon the basis of a view of the facts, consistent with the verdict, which is most favourable to the prisoner; R v Harris [1961] VR 326. Equally, I note the observations of the Court in Isaacs to the effect that the requirement that findings of fact made against the prisoner by a sentencing judge be arrived at beyond reasonable doubt may lead to the prisoner being sentenced upon a view of the facts which is most favourable to him. This flows from the need to resolve any reasonable doubt in favour of the prisoner. 18 I considered the evidence supporting the partial 'defence' of provocation to be slight. I left it for the jury's consideration in the light of the material appearing at p 7 of the transcript of the ERISP. The degree of provocation offered (accepting the account given by the prisoner as to the words spoken to him by the deceased against the background of disputation between them) was not great. There was little evidence pointing to a loss of self control by reason of the words spoken by the deceased. Neither Mr Littlemore nor the Crown prosecutor submitted that I would approach the matter of sentence upon the basis that this was murder reduced to manslaughter by reason of provocation. I do not do so. 19 Consistent with the jury's verdict, I approach the matter upon the basis that this is a case of manslaughter by unlawful and dangerous act. It does not flow from this finding that the sentence which I impose should necessarily be less than the range of sentences appropriate to a case where murder is reduced to manslaughter by reason of provocation; Isaacs at p 381. Each case falls for assessment upon its own facts. Some cases of involuntary manslaughter call for a heavy sentence; R v Maguire (unreported) NSWCCA, 30 August 1995 per James J (with whom Grove J and Hulme J agreed) at pp.11/12. 20 In the course of the ERISP the prisoner gave the following account of the circumstances in which he fired the nine shots (which followed the first accidental discharge of the weapon); "A. 224 I don't know how long it took to fire the bullets, I shot them fast, and I don't know how long it took him to fall down or was falling down. Q. 225 Were you standing in the one spot while you were firing those bullets or were you moving around as well? A. 225 I'm not sure. I was, I don't know what I was doing." …..

A.230 I don't know if I was backing up, I don't know if I was going forward, I don't know where I was shooting, but I couldn't stop, I just, when he just, I don't know, he didn't fall down and I couldn't stop just pulling the trigger." 21 It is to be observed that elsewhere in the course of the ERISP (while denying that he had aimed at any particular part of the deceased) the prisoner acknowledged that he had aimed "towards him". Nonetheless it is necessary for me to approach my task upon the basis that at the time of the repeated firing of the rifle at close range in the direction of the deceased the prisoner did not intend thereby either to kill or to do him grievous bodily harm. 22 This must be viewed as an objectively very serious case of manslaughter. The prisoner took the semi-automatic rifle to the scene having in mind at the time of his confrontation with the deceased to frighten him into discontinuing legal proceedings brought against him. While at the scene the prisoner loaded the rifle. The unlawful and dangerous act which I identify is that of presenting the loaded rifle and of repeatedly firing it in the direction of the deceased. 23 The Crown tendered a victim impact statement prepared by Imelda Valentino the widow of the deceased. Such a statement is to be received pursuant to s 28(3) of the Crimes (Sentencing Procedure) Act 1999 ("the Act"). 24 Mrs Valentino was born in Italy to a large family. She travelled to Australia at the age of twenty-two. On her arrival she was barely able to speak English. Shortly thereafter she met the deceased. They married the following year. Theirs was a long and happy union. She underscores the tragic impact of her husband's killing with the observation that "We were not blessed with our own children but we had each other". Mrs Valentino goes on to speak eloquently of the loneliness to which she is now subject. 25 I am mindful of the observations of Hunt CJ at CL in R v Previtera (1997) 94 A Crim R 76 at 88/87 as to the significance of the contents of victim impact statements in cases of unlawful homicide. 26 I turn now to a consideration of the prisoner's subjective circumstances. 27 The prisoner was aged 28 at the date of the offence. He has no prior criminal convictions. He comes from a large and supportive family. He left school at the age of fourteen and started work on a fishing boat. His father was a fisherman and the prisoner followed this occupation for a number of years. At the age of twenty-one he formed a de-facto relationship with Jane Farrugia. Ms Farrugia was the mother of one child for whom the prisoner assumed responsibility. Subsequently, the couple had two children of their own. 28 Ms Farrugia gave evidence at the trial. She was a dignified and impressive witness who cooperated with the police in the course of their investigation of this incident. She and the children have visited the prisoner regularly whilst he has been in custody. She gave evidence of her continuing love for him. 29 Ms Farrugia said that the prisoner was a person who had difficulty in communicating and was inclined to bottle up his problems. She instanced the fact that he had been wrongly diagnosed with cancer but had failed to tell her anything of the matter at the time. 30 In the course of the prisoner's interview with the police he said that he suffered from depression and that he had made two unsuccessful suicide attempts in the six weeks prior to the killing. In evidence he described an earlier attempted suicide making a total of three such attempts in the six months leading up to the killing. 31 A short report from Dr K Fuller, the prisoner's general practitioner, was tendered at the trial. Relevantly, Dr Fuller stated:

"Mr Pennisi was first examined on 28.3.98 when he complained of severe stress, possibly related to his very long working hours. An anti-anxiety agent, Prothiaden, was prescribed."

32 In detailing the history of his relations with the deceased during the ERISP the prisoner gave an account that the deceased had insisted that he was not permitted to sell eggs at his chicken shop. The prisoner had responded by pointing to the terms of his lease which permitted him to sell poultry and associated items. Shortly thereafter he was served with an eviction notice requiring him to vacate the premises within thirty days. The prisoner considered that there was no option for him but to accept the deceased's injunction as to the sale of eggs. Had he been forced to sell the business on short notice he would have faced bankruptcy. The prisoner explained to the police that he had further disputes with the deceased following this and that he had felt under a good deal of pressure. 33 The pressure led to a brief separation between the prisoner and his wife. In the course of a lengthy answer to Q. 110 in ERISP (which at times had a rambling quality) the prisoner described how every little thing that happened to him had come to seem to be a big thing. He went on to say :

"sometimes I feel sick, I can't sleep. I lie in bed 3 or 4 hours every time just to go to sleep. Sometimes I don't sleep, I've got to sleep on the boat. Only 'cause I'm so tired I have to sleep. I don't like fishing, it's the only thing I'm smart enough to do." 34 The prisoner ultimately sold the chicken shop business in late April 1999. He sustained a loss of about $30,000. He returned to work as a fisherman. He was the sole bread winner in his family. He was not able to adequately support the family from his earnings as a fisherman. After receiving the statement of claim in the proceedings brought by the deceased (which sought a sum of the order of $3,000) the prisoner said that he had lain awake most nights getting little sleep. The night before the shooting he had not slept at all. 35 No psychiatric evidence was led at the trial or on sentence. 36 The prisoner is a person of good character. He made out a positive case in this regard at trial which I accept. He is entitled to some leniency on this account for the reasons explained in Ryan v the Queen [2001] HCA 21 per McHugh J at [31] & [33], Gummow J at [68], Kirby J at [108], & Callinan J at [178]. 37 Additionally I take into account that the prisoner suffered from depression and was in the weeks leading up to the shooting in a state of some emotional distress. These factors serve to mitigate his culpability for his crime. 38 I accept that the prisoner is truly remorseful for his crime. This is a further consideration favouring mitigation of sentence. 39 The prisoner has strong family ties. I am satisfied that he does not pose a risk of re-offending in the future. Generally, I consider his prospects of rehabilitation to be good subject to him receiving such counselling and support as he may require to address issues associated with his anxiety and/ or depression. 40 I was informed by Mr Littlemore that prior to the committal hearing the prisoner's legal representative wrote to the Director of Public Prosecutions and informed him that the prisoner was willing to plead guilty to the manslaughter of the deceased. The Crown did not accept that offer. The offer was renewed following the prisoner's committal for trial. The prisoner stood trial for murder and was convicted of the lesser offence of manslaughter. In these circumstances I consider that the prisoner is entitled to a discount on sentence reflecting his timely offer to plead guilty to the offence for which he now stands convicted. 41 In R v Thomson [2000] NSWCCA 309; 49 NSWLR 383 at 418 the Court indicated that a discount reflecting the utilitarian value of a plea of guilty ought ordinarily to be in the range of ten to twenty-five per cent. The utilitarian considerations which favour a substantial discount for a plea of guilty turn, in part, upon objective matters such as whether a lengthy and complex trial has been avoided. In a case such as the present where the prisoner offers to plead guilty to the charge with which he is ultimately convicted a trial is not avoided. However this stems from the Crown's refusal to accept the prisoner's plea. The policy informing the discount for a plea of guilty is that of encouraging offenders to admit guilt and to offer to plead guilty at an early stage in the proceedings. 42 In Thompson it was said that in some cases it may be appropriate to give a single combined discount reflecting both the plea of guilty and the prisoner's assistance to the authorities. The considerations bearing on this latter aspect are set out in s 23(2) of the Act. It is appropriate for me to have regard to the prisoner's assistance to the police in connection with the investigation of the subject offence. In this case the prisoner cooperated with the police from the outset making full admissions as to his crime. 43 The prisoner was seen at the scene in the immediate aftermath of the shooting by a man who was known to him. Had the prisoner not cooperated with the police I think it reasonable to assume that he would nonetheless have been charged and that he might well have been convicted upon a case based on circumstantial evidence. This is not to say that his admissions (in the light of the absence of witnesses to the killing) were not of considerable assistance to the Crown. I have concluded that the prisoner is entitled to an aggregate discount in reduction of his sentence (reflecting the timely offer of the plea of guilty and his cooperation with the authorities) in an amount of twenty-five percent. 44 I am persuaded that special circumstances exist in this case such as to justify a departure from the proportion between the sentence and the non-parole period fixed by s 44(2) of the Act. In this respect I take into account the fact that the prisoner is man of prior good character who will be serving a lengthy period of imprisonment for the first time. In the light of his history of anxiety and/or depression it is to be expected that he will benefit from supervision for a sustained period upon his release. 45 While the subjective case advanced on behalf of the prisoner is a strong one, this remains a crime the objective gravity of which calls for a substantial sentence. The sentence which I impose must reflect both the denunciatory role of sentencing and the need for general deterrence. I this regard I note the observations of the Court in Regina v MacDonald NSWCA 12 December 1995: "Manslaughter involves the felonious taking of human life. This may involve a wide variety of circumstances, calling for a 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."

Order 46 Rosario Pennisi I sentence you to a term of nine years imprisonment to date from 5 April 2000. I specify a non parole period of six years. The earliest date upon which you will be eligible for release on parole is 4 April 2006.

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