Citation: Regina v Penisini; Regina v Lagi; Regina v John Taufahema [2003] NSWSC 892
Court: Supreme Court of New South Wales
Date: 2 October 2003
Judge(s): Wood CJ at CL
Background
On 27 March 2002, Senior Constable Glenn McEnallay was following a stolen green Holden Commodore through the streets of Matraville when he activated his lights and siren to stop the vehicle. The car came to a halt after striking a traffic island. One of the occupants, Sione Penisini, immediately exited the car armed with a .38 Smith and Wesson revolver and fired five shots in quick succession at the driver's side of the police vehicle, which had stopped approximately ten metres away. Four shots struck the officer. Senior Constable McEnallay died seven days later from gunshot wounds to the chest and head.
Three co-offenders appeared for sentencing: Penisini, who fired the shots; John Taufahema, who was in the vehicle and convicted of murder after trial; and Meli Lagi, who was acquitted of murder but convicted of using an offensive weapon in company with intent to prevent lawful arrest. A fourth accused, Motekiaa Taufahema, was yet to stand trial at the time of this judgment.
The offences arose from a brief but violent sequence of events in a residential area, in the presence of pedestrians and children, and also involved an earlier attempted carjacking of a civilian motorist, Lamia Kassis.
Legal Issues
- What were the appropriate sentences for each offender, given their different levels of participation in the murder and associated offences?
- How should the court treat the principle of accumulation of sentences where offenders were already serving or subject to existing sentences?
- What weight should be given to subjective factors, including youth, background, and prospects of rehabilitation, for each offender?
- How should the court address the use of a firearm in a public place to kill a police officer performing duty, and the significance of that context as an aggravating feature?
- Whether, and to what extent, the offenders' Indigenous or Pacific Islander background was a relevant sentencing consideration.
Decision
Wood CJ at CL treated the murder of a police officer in the execution of duty, committed using a firearm in a public place, as a matter of the gravest seriousness. Senior Constable McEnallay had been unable to draw his own weapon or take cover in the time available. The shooting took place in a residential precinct in front of civilians, including children, and involved multiple shots fired at close range. These features substantially elevated the objective seriousness of the offending.
Penisini, the shooter, pleaded guilty to murder, attempted carjacking, and unauthorised use of a firearm. The court imposed a sentence of 34 years for murder, with a non-parole period of 23 years. The length of the sentence reflected Penisini's direct and deliberate role in firing the fatal shots, though the court acknowledged his guilty plea and considered relevant subjective matters. The murder sentence was structured to commence after service of the concurrent fixed terms for the other offences.
Taufahema was convicted of murder after a contested trial, having been found to have acted as a principal in the second degree. He was also convicted of using an offensive weapon to prevent lawful apprehension and the attempted carjacking. The court imposed 21 years for murder with a 14-year non-parole period, taking into account that he did not fire the weapon but was nonetheless a knowing and active participant in the joint criminal enterprise. Sentences were structured to commence in a staged manner to reflect the totality of his criminality.
Lagi was acquitted of murder but convicted of possessing a firearm and using an offensive weapon in company to prevent arrest. The court observed that he was already serving a sentence imposed on 1 November 2002 for a serious prior offence, and his fresh sentences were directed to commence from 3 April 2005 to accumulate properly upon the non-parole portion of that existing sentence. The court noted that his reoffending while on conditional liberty was an aggravating factor, though it had already been factored into the sentences imposed.
Orders Made
Sione Penisini:
- Unauthorised use of a firearm: fixed term of 5 years from 27 March 2002
- Attempted carjacking: concurrent fixed term of 6 years from 27 March 2002
- Murder: 34 years imprisonment from 27 March 2004, expiring 26 March 2038; non-parole period of 23 years from 27 March 2004, expiring 26 March 2027
John (Sione) Taufahema:
- Unauthorised use of a firearm: 5 years from 27 March 2002
- Attempted carjacking: concurrent fixed term of 6 years from 27 March 2002
- Use offensive weapon in company to prevent lawful apprehension: concurrent fixed term of 7 years from 27 March 2004
- Murder: 21 years from 27 March 2005, expiring 26 March 2026; non-parole period of 14 years from 27 March 2005, expiring 26 March 2019
Meli Lagi:
- Possess firearm without authority: fixed term of 4 years from 3 April 2005
- Use offensive weapon in company to prevent lawful arrest: concurrent term of 10 years from 3 April 2005, expiring 2 April 2015; non-parole period of 6 years from 3 April 2005, expiring 2 April 2011
Key Takeaways
- Shooting a police officer in the execution of duty, in a public place and with a firearm, was treated by the Supreme Court as among the most serious instances of murder, warranting a lengthy head sentence and substantial non-parole period even for an offender who pleaded guilty.
- Where co-offenders played materially different roles in a joint criminal enterprise, the sentencing court imposed significantly different sentences to reflect individual culpability, with the shooter receiving the longest term.
- An offender's reoffending while on conditional liberty operated as an aggravating factor, and structuring of sentence start dates was used to ensure meaningful accumulation upon existing sentences rather than effective concurrency that would dilute punishment.
- A conviction for using an offensive weapon to prevent lawful apprehension, as a distinct charge, was sentenced concurrently where it formed part of the same criminal episode as the murder, consistent with the totality principle.
- The Supreme Court closed its sentencing remarks by formally recognising the bravery of the officers involved and directed that a copy of the remarks be forwarded to the Commissioner of Police, an uncommon but not unprecedented step.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Firearms Act 1996 (NSW)
Cases:
- Attorney General's Application Under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 [2002] NSWCCA 518
- Pearce v The Queen (1998) 194 CLR 610
- Regina v Fernando (1997) 95 A Crim R 533
- Regina v Knight [2001] NSWSC 1011
- Regina v Milat NSWSC 27 July 1996
- Regina v Ngo [2003] NSWCCA 82
- Regina v Simpson (2001) 53 NSWLR 704
- Regina v Thomson and Houlton (2000) 49 NSWLR 383
- Veen v The Queen (No 2) (1988) 164 CLR 465
- Various other NSW Court of Criminal Appeal authorities cited in the judgment