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10
Court of Criminal Appeal 4 September 2001

R v Pennisi

[2001] NSWCCA 326

Homicide
MANSLAUGHTER SENTENCING LENGTH OF NON PAROLE PERIOD DISCOUNT FOR PLEA

Citation: R v Pennisi [2001] NSWCCA 326
Court: NSW Court of Criminal Appeal
Date: 4 September 2001
Judges: Beazley JA, Wood CJ at CL, Carruthers AJ

Background

The appellant was convicted by a jury of the manslaughter of a man with whom he was engaged in a tenancy dispute. The killing occurred in a shopping centre car park early in the morning. The appellant shot the deceased ten times at close range with a rifle. His stated intention had been to frighten the deceased into abandoning legal proceedings, not to kill or cause grievous bodily harm.

After the shooting, the appellant returned home and then surrendered to police within approximately 45 minutes. He made a full confession and cooperated with authorities throughout. He had also made two pre-trial offers to plead guilty to manslaughter, both of which the Crown rejected.

The sentencing judge, Bell J in the Supreme Court, took into account the appellant's good character, genuine remorse, mental health difficulties (including depression and prior suicide attempts), strong family ties, low risk of reoffending, and his cooperation with police. Her Honour applied a 25 per cent discount for the offered pleas and police assistance, and also found special circumstances justifying a departure from the standard statutory non-parole period ratio. She imposed a sentence of 9 years imprisonment with a non-parole period of 6 years. The appellant sought leave to appeal, contending the sentence was manifestly excessive.

  • Whether the total sentence of 9 years was manifestly excessive, given that the sentencing judge found no intention to kill or cause grievous bodily harm
  • Whether the non-parole period of 6 years was appropriate, specifically whether the reduction from the statutory proportion under s 44(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW) was insufficient to the point of error
  • Whether the combined discount of 25 per cent for the offered guilty plea and assistance to police was inadequate

Decision

The Court of Criminal Appeal found no error in Bell J's sentencing process and dismissed the appeal. On the question of manifest excess, the Court accepted that while the appellant lacked intent to kill or cause grievous bodily harm, the offence remained one of extreme objective gravity. The appellant had premeditated the confrontation, armed himself, returned to the scene, loaded the weapon, and fired ten shots at close range. The sentence fell within an appropriate discretionary range.

On the non-parole period, the Court found no error. Bell J had already made a departure from the statutory one-quarter proportion in recognition of special circumstances, setting the non-parole period at two-thirds of the total sentence rather than three-quarters. The Court was not persuaded that any further reduction was warranted.

Regarding the discount, the Court acknowledged that the appellant's offers to plead guilty carried no utilitarian value because they were not accepted by the Crown. However, Bell J had correctly treated those offers as if they had been accepted. The 25 per cent combined discount for the plea offer and full cooperation with police sat at the outer end of the applicable range identified in R v Thomson; R v Houlton (2000) 49 NSWLR 383. The Court saw no basis to require a higher discount, noting that approximately 35 per cent represented the ceiling for combined considerations of this kind.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • In dismissing the appeal, the Court of Criminal Appeal confirmed that a finding of no intent to kill or cause grievous bodily harm does not automatically reduce the objective seriousness of a manslaughter offence where the circumstances of the killing are extreme.
  • A combined discount of 25 per cent for an offered guilty plea and substantial police cooperation was held to be at the outer end of the appropriate range, consistent with the guideline in R v Thomson; R v Houlton.
  • Where a pre-trial offer to plead guilty is rejected by the Crown and no utilitarian value results, a sentencing court should nonetheless treat that offer on the same basis as if it had been accepted.
  • Under s 44(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW), a finding of special circumstances may justify reducing the non-parole period below the standard statutory proportion, but the extent of any such reduction remains a discretionary matter for the sentencing judge.
  • No error was established in the sentencing process merely because a sentence for manslaughter appears comparable to sentences imposed in cases involving an intention to kill, where the objective facts of the offending independently warrant a significant term.

Legislation and Cases Referenced

Legislation
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 22, 44(2)

Cases
- Isaacs v R (1997) 41 NSWLR 374
- R v Thomson; R v Houlton (2000) 49 NSWLR 383
- R v Bryant [1999] NSWCCA 181
- R v Esposito [2000] NSWCCA 284
- R v Oinonen [1999] NSWCCA 310
- R v Chetcuti (unreported, NSWCCA, 24 December 1993)
- R v MacDonald (unreported, NSWCCA, 12 December 1995)
- R v Moffit (1990) 20 NSWLR 114
- Phelan v R (1993) 66 A Crim R 446
- R v Farroukh (unreported, NSWCCA, 29 March 1996)
- R v Morrissey (unreported, NSWCCA, 15 July 1994)
- R v Kenworthy (unreported, NSWCCA, 3 August 1995)