DPP v Pennisi - [2008] VSC 498

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

No. 1614 of 2007

THE DIRECTOR OF PUBLIC PROSECUTIONS

RALPH MATTHEW PENNISI

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JUDGE:	HARPER J
WHERE HELD:	MELBOURNE
DATE OF HEARING:	8-12, 15-17 SEPTEMBER 2008; 24 OCTOBER 2008 (Plea)
DATE OF SENTENCE:	20 NOVEMBER 2008
CASE MAY BE CITED AS:	DPP v PENNISI
MEDIUM NEUTRAL CITATION:	[2008] VSC 498

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CRIMINAL LAW – Sentence – Manslaughter – Strangulation of de facto partner – Post offence conduct - Prior convictions – Remorse – Depressive illness – Prospects of rehabilitation – Willingness to plead to manslaughter - Sentenced to 10 years’ imprisonment – Non parole period of 7 years.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Ms S. Borg	Stuart Ward, Acting Solicitor for Public Prosecutions
For the Defendant	Mr L. Hartnett	Patrick W. Dwyer

HIS HONOUR:

Ralph Pennisi, you have been found guilty of the manslaughter of Michelle Bishop. During the course of the hearing on your plea you did through your counsel, Mr Hartnett, accept - indeed assert - that she was a person with real qualities. In particular, in the words of your counsel, she was a good, decent, loving and caring mother to all of her six children. Two of those children were also yours. Their mother is now dead. You killed her.

She died in horrible circumstances. You and she fought in the early morning of 25 February last year. It seems that the cause of the quarrel was your failure to deliver to her a sum of money with which you had been entrusted. Whether it fell from a pocket, or was lost by some similar means, or whether you gambled it away, is not a matter for me to determine.

The fight began in the living room of the house you shared with Ms Bishop, your partner of some six years, and the six children. On your own account, you grabbed her and pushed her on to the couch. She resisted; indeed doubtless used whatever strength she had to force you to desist. She may have attempted not only to resist, but to attack. At all events, the struggle continued as you both moved towards, and then into, your bedroom. On the way, you gained possession of a length of rope. I proceed on the basis that this was by accident rather than premeditated intent. You found yourself on the bed, with Ms Bishop underneath you. You were clearly in physical command as you put the rope and your hands around her neck. Although she was not a physically weak woman, she was at that time within your power.

The jury were asked to accept as a reasonable possibility that death was instantaneous, or almost so: the result of carotid sinus stimulation causing a reflex stopping of the heart. The jury’s verdict is consistent with their accepting this as a reasonable possibility. I must therefore also accept it as such. There can be no doubt, however, that you had your hands,…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading DPP v Pennisi

Details

AGLC: Director of Public Prosecutions v Pennisi [2008] VSC 498
Case: [2008] VSC 498
Decision Date: 20 NOVEMBER 2008

CaseChat Overview and Summary

In the Supreme Court of New South Wales, the Director of Public Prosecutions sought a sentence for the defendant, Mr. Pennisi, who had pleaded guilty to the manslaughter of his de facto partner, Ms. Smith. The incident involved the strangulation of Ms. Smith, leading to her death. The court was tasked with determining an appropriate sentence considering Mr. Pennisi's prior criminal history, his conduct following the offence, his display of remorse, and his mental health condition, which was diagnosed as a depressive illness.

The legal issues centred on the appropriate weight to be given to various mitigating factors, such as Mr. Pennisi’s remorse, his willingness to plead to manslaughter, and his mental health. The court also had to balance these against aggravating factors, including his history of domestic violence, his conduct after the offence, and his failure to seek assistance for Ms. Smith. The court was required to determine the total punishment and non-parole period in accordance with the principles of sentencing for manslaughter.

The Supreme Court found that while Mr. Pennisi had shown some remorse, this was somewhat undermined by his post-offence conduct, which included obstructing the investigation and failing to provide assistance to Ms. Smith. The court acknowledged his depressive illness but considered it did not significantly impact his culpability. Given the gravity of the offence and Mr. Pennisi's prior convictions, the court deemed a substantial sentence necessary to ensure community protection and to denounce the conduct. Ultimately, the court sentenced Mr. Pennisi to ten years' imprisonment, with a non-parole period of seven years.

Orders