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Court of Criminal Appeal 29 September 2004

Regina v Penisini

[2004] NSWCCA 339

HomicideFirearms & weaponsPublic order & justice offences
CROWN APPEAL AGAINST SENTENCE ABSENCE OF PLANNING AND PREMEDITATION WHETHER LIFE SENTENCE APPROPRIATE

Citation: Regina v Penisini [2004] NSWCCA 339
Court: New South Wales Court of Criminal Appeal
Date: 29 September 2004
Judge(s): Spigelman CJ, Hidden J, Buddin J

Background

The respondent pleaded guilty to the murder of Senior Constable Glenn McEnallay, a police officer who was killed in the line of duty on 27 March 2002. The officer had been following a stolen vehicle in Matraville when the respondent exited the car and fired five shots from a .38 Smith and Wesson revolver at the police vehicle, which had stopped approximately ten metres away. Four shots struck the officer, who died seven days later.

At the time of the offence, the respondent was on parole and armed with an unauthorised firearm. Wood CJ at Common Law (the sentencing judge at first instance) found that the respondent had fired the shots with the intention of killing the officer, and that a powerful motive for using the weapon was to avoid arrest and the inevitable revocation of parole.

Wood CJ at CL imposed a sentence of 34 years imprisonment commencing 27 March 2004 with a non-parole period of 23 years. The Crown appealed, contending that the circumstances required the imposition of a life sentence.

  • Whether the murder fell within the worst category of the offence such that a life sentence was required
  • Whether the absence of planning and premeditation was a relevant mitigating consideration
  • Whether the sentencing judge erred in his balancing of the aggravating and mitigating factors

Decision

The Court of Criminal Appeal dismissed the Crown appeal and upheld the 34-year sentence. Spigelman CJ, with whom Hidden J and Buddin J agreed, found that Wood CJ at CL had carefully considered the full range of relevant factors and had not understated the brutality of the conduct.

On the question of planning and premeditation, the Court accepted that their absence was a legitimate factor distinguishing the offence from the worst category of murder, even where the victim was a police officer. The Crown had argued that the element of surprise warranted additional aggravation, but the Court rejected that submission. The Court held that the fact the victim was a police officer already attracted substantial weight as an aggravating factor, and that the element of surprise did not add significantly to that already weighty consideration.

The Court acknowledged that a life sentence would amount to approximately 50 years or more for the respondent, who was 22 at the time of his apprehension, and noted that while age is not determinative, it remained a relevant factor. No single mitigating factor had been treated as determinative by the sentencing judge. The sentence imposed was described by the Court as a heavy sentence, even by the standards of murder cases.

The Court confirmed that an appellate court should not interfere with a discretionary sentencing decision where the record demonstrates that all relevant considerations have been weighed carefully and appropriately. The sentencing judge's reasons met that standard.

Orders Made

  • Non-publication order of 9 March 2004 vacated
  • Appeal dismissed

Key Takeaways

  • The Court of Criminal Appeal confirmed that the absence of planning and premeditation is a legitimate basis for distinguishing a murder from the worst category of the offence, even where the victim is a police officer killed in the course of duty.
  • A life sentence is not automatically required for the murder of a police officer, even where culpability is found to be extremely high and the offender acted with an intention to kill.
  • The fact that a police officer victim was defenceless and surprised does not constitute a separate significant aggravating factor beyond the already substantial weight given to the victim's status as a police officer performing duty.
  • In dismissing the appeal, the Court affirmed that appellate intervention in sentencing is not warranted where the sentencing judge's reasons demonstrate a careful and balanced consideration of all relevant factors.
  • A defendant's youth is a relevant but not determinative factor in sentencing, including in cases where a life sentence is under consideration.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Crimes Act 1900 (NSW), s 33

Cases:
- R v Taufahema [2004] NSWSC 833
- R v Leonard (unreported, NSWCCA, 7 December 1998)