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Supreme Court 6 June 2001

Regina v Pennisi

[2001] NSWSC 461

HomicideFirearms & weapons
SENTENCE MANSLAUGTER UNLAWFUL AND DANGEROUS ACT REPEATED DISCHARGE OF LOADED FIREARM

Citation: Regina v Pennisi [2001] NSWSC 461
Court: Supreme Court of New South Wales
Date: 6 June 2001
Judge(s): Bell J

Background

The accused, a fisherman and former tenant of a shopping centre in Ulladulla, had an ongoing dispute with the deceased, who was the shopping centre proprietor. The dispute arose from a commercial lease gone wrong, the accused's perception that he had been treated unfairly, and ongoing civil proceedings brought by the deceased for unpaid rent and damage to the premises.

On the morning of 5 April 2000, the accused drove to the shopping centre in the early hours, concealed a semi-automatic rifle at the scene, and later returned to confront the deceased. He had written a suicide note before the confrontation, portions of which suggested he had contemplated harming the deceased before taking his own life.

When the accused produced the rifle, the deceased did not flee but instead advanced on him and attempted to wrestle the weapon away. After the gun discharged in a struggle, wounding the deceased, the accused panicked and fired repeatedly at close range. The deceased was shot ten times and died. The accused then fled before surrendering himself to police within approximately 45 minutes of the shooting.

  • Whether the accused was guilty of murder or the lesser offence of manslaughter, by reference to the requisite intent and whether provocation applied
  • What sentence was appropriate for manslaughter by an unlawful and dangerous act, having regard to the objective gravity of the offence
  • What weight should be given to the accused's subjective circumstances, including good character, mental health history, and cooperation with police
  • Whether special circumstances existed to justify a departure from the standard proportion between the head sentence and the non-parole period

Decision

The jury returned a verdict of not guilty of murder but guilty of manslaughter. The alternative verdict had been left on two bases: failure to establish the intent required for murder, and provocation. Bell J accepted the accused's account as given in his police interview and trial evidence, approaching sentencing on the basis that the accused initially intended only to frighten the deceased rather than kill him.

Bell J found the objective gravity of the offence to be high. The accused had brought a loaded semi-automatic rifle to the confrontation, and the deceased was shot ten times at close range. Even accepting the accused's account of how events escalated, the act of repeatedly discharging a loaded firearm at another person at close range constituted a serious instance of unlawful and dangerous act manslaughter.

On the subjective side, Bell J found the accused's case to be strong. He had no prior criminal history, had cooperated fully with police from the outset, made frank admissions, participated in a re-enactment, and had a history of anxiety and depression that was relevant to his mental state. The accused's prompt and genuine cooperation, combined with a timely indication of a guilty plea, warranted an aggregate discount of 25 percent from the sentence that would otherwise have been imposed.

Bell J found special circumstances existed to justify a greater proportion of the sentence being allocated to the non-parole period than the standard ratio under the sentencing legislation. The accused had no prior imprisonment, would be serving a lengthy first custodial term, and his mental health history indicated he would benefit from extended supervision on release. The sentence was framed to reflect both the denunciatory function of sentencing and the need for general deterrence in cases of unlawful homicide.

Orders Made

  • The accused was sentenced to nine years imprisonment, commencing 5 April 2000
  • A non-parole period of six years was specified
  • The earliest date of eligibility for release on parole was set at 4 April 2006

Key Takeaways

  • Unlawful and dangerous act manslaughter involving a firearm discharged repeatedly at close range will attract substantial custodial sentences, even where the offender did not set out with a clear intention to kill
  • A 25 percent aggregate discount was applied to reflect both a timely guilty plea and sustained cooperation with police, including full admissions and participation in a crime scene re-enactment
  • Special circumstances under the sentencing legislation were established on the basis of the accused's lack of prior imprisonment, the length of the sentence, and a mental health history that supported a need for extended post-release supervision
  • The Supreme Court cited R v MacDonald for the proposition that unlawful homicide is always a most serious crime, and that sentencing must reflect the community's expectation that human life be protected
  • Where an accused's account is accepted, sentencing proceeds on the version most favourable to that accused, but the court remains bound to sentence consistently with the jury's verdict

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 44(2)

Cases:
- R v Harris [1961] VR 326
- R v Isaacs (1997) 41 NSWLR 374
- R v MacDonald, NSWCA, 12 December 1995
- R v Previtera (1997) 94 A Crim R 76
- R v Thomson [2000] NSWCCA 309