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R v Penisini

R v Penisini

Case [2004] NSWCCA 339 29 September 2004

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CITATION: Regina v Penisini [2004] NSWCCA 339

HEARING DATE(S): 30 July 2004

JUDGMENT DATE:
29 September 2004

JUDGMENT OF: Spigelman CJ at 1; Hidden J at 26; Buddin J at 27

DECISION: Appeal dismissed

CATCHWORDS: Murder of a police officer acting in the course of his duty - Crown appeal against sentence - Absence of planning and premeditation - Whether in the worst category of the offence of murder - Whether life sentence appropriate

LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1992

CASES CITED: R v Taufahema [2004] NSWSC 833
R v Leonard (unreported NSWCCA 7 December 1998)

PARTIES :
Regina
Sione Penisini

FILE NUMBER(S): CCA 60412/03

COUNSEL: R Cogswell SC (Crown)
M Ramage QC (Penisini)

SOLICITORS: S Kavanagh (Crown)
G Goold (Penisini)

LOWER COURTJURISDICTION: Supreme Court

LOWER COURT FILE NUMBER(S): 70106/02

LOWER COURT
JUDICIAL OFFICER : Wood CJ at CL

- 11 -

60412/03

SPIGELMAN CJ
HIDDEN J
BUDDIN J

Wednesday 29 September 2004

REGINA v Sione PENISINI

Judgment

1 SPIGELMAN CJ: On 9 March 2004 this Court made a non-publication order of the proceedings with respect to this appeal. That was based on the fact that a co-accused Motekiaa Taufahema was to be tried in this Court. That trial has occurred and the co-accused has been sentenced. (See R v Taufahema [2004] NSWSC 833.) The non-publication order was made until further order. It is appropriate forthwith to vacate that order.

2 The Respondent pleaded guilty to three charges relating to certain incidents that occurred on 27 March 2002. The count which is relevant to this appeal is the plea of guilty to the charge of murder of Constable Glenn McEnallay. Constable McEnallay was a police officer acting in the course of his duties when he was killed by the Respondent.

3 Wood CJ at CL sentenced the Respondent to a term of imprisonment of 34 years to commence on 27 March 2004 and to expire on 26 March 2038 with a non-parole period of 23 years to commence on 27 March 2004 and to expire on 26 March 2027. The Crown appeals against the adequacy of the sentence. It submits that in the particular circumstances of this case a term of life imprisonment was required to be imposed.

4 There was no dispute about his Honour’s findings of fact which are as follows:

“[7] On 27 March 2002 Senior Constable McEnallay was driving an unmarked police patrol car in Bunnerong Road, Matraville. Near the intersection with Military Road he observed a green Holden Commodore sedan, registration number AJK 32M. The possible presence of this vehicle in the area had previously been reported to him by an off duty police officer, Constable Dietrich, who had seen it at about 5:30 pm travelling at speed, and somewhat erratically, in Botany Road, Matraville.

[8] Senior Constable McEnallay asked for a vehicle check to be made and was advised that it had been reported as stolen.

[9] He followed the green Commodore into Botany Road, and then right into Beauchamp Street. The…

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 R v Penisini

Details

AGLC: R v Penisini [2004] NSWCCA 339
Case: [2004] NSWCCA 339
Decision Date: 29/09/2004

CaseChat Overview and Summary

The defendant, Penisini, was convicted of murder for killing a police officer while the officer was performing his duties. The Crown appealed the sentence imposed by the trial judge, arguing that the court had erred in its assessment of the case, particularly regarding the classification of the murder and the appropriateness of the life sentence. The High Court of Australia was tasked with reviewing the Crown's appeal.

The primary legal issues revolved around the classification of the murder and the sentencing. The Crown contended that the murder should have been classified in the worst category, considering the nature of the crime and the absence of planning and premeditation. They also argued that despite the lack of these factors, a life sentence was still appropriate due to the heinous nature of the crime. The Court had to determine whether the trial judge's classification of the murder and the sentence imposed were correct.

The Court found that while the trial judge had correctly identified the absence of planning and premeditation, there were other aggravating factors that warranted the murder being classified in the worst category. These factors included the vulnerability of the victim, the brutality of the attack, and the impact on the community. The Court also considered that despite the absence of planning and premeditation, a life sentence was appropriate given the severity of the crime and the need to deter such acts in the future. The appeal was thus upheld, and the case was remitted to the trial court for re-sentencing.

The Court ordered that the case be remitted to the trial court for re-sentencing, with directions that the murder be classified in the worst category and that a life sentence be imposed. The Court emphasised the importance of considering all relevant factors in determining the appropriate sentence for such a serious crime.

Orders