R v Penisini

[2004] NSWCCA 339

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 two vehicles stopped at the lights controlling the intersection of Beauchamp Street and Denison Road. In the meantime he had asked for assistance from other vehicles, and had also requested the driver of a caged police vehicle, which was in the area, to drop back, as he did not want the occupants of the green Commodore to be aware that they were being followed.
[10] In Dennison Street, at about 5:51:50, Senior Constable McEnallay activated his siren and lights, announcing his pursuit of the green Commodore, which made a right hand turn at speed into Grace Campbell Crescent. While attempting this turn the vehicle struck the gutter, or a traffic island, and came to a stop at about 5:52:10, as a result of damage occasioned to a wheel, which effectively immobilised it.
[11] At this stage Penisini, who was armed with a .38 Smith and Wesson revolver, exited the green Commodore and immediately fired 5 shots, in quick succession, at the driver's side window of the police vehicle which had come to a stop about 10 metres away. Senior Constable McEnallay, who had been unable in the time available to draw his own weapon, or to seek a position of safety, suffered gunshot wounds to the chest and head which led to his death, seven days later on 3 April 2002. The five shots, of which four struck home, were fired in a public place, in the midst of a residential precinct and in an area where there were a number of pedestrians and children, some of whom gave evidence in the trial of Lagi and Taufahema.”

5 His Honour was sentencing the present Respondent as well as two other co-offenders John (Sione) Taufahema and Neli Lagi.

6 His Honour noted the presence in the car of gloves, hats and an ice hockey mask which his Honour described as “items capable of being used as disguises”. His Honour went on to note further that each of the offenders was on parole. His Honour said that he was not taking into account as aggravating the severity of the offences with which each of the offenders was charged that it would appear that they were en route to commit an armed robbery or some other similar offence.

7 His Honour said:

“[32] To do so would be to sentence them for offences with which they have not been charged. The presence of the gloves, mask and caps in the car, and the possession of an unauthorised hand gun by each offender, had a particular relevance, in combination with the fact that each was on parole, so far as those circumstances provided a powerful motive for them to use the weapons to avoid arrest and inevitable revocation of their parole.”

8 His Honour referred to the Victim Impact Statements that were tendered before him in the following way:

“[37] I confirm that I have given careful consideration, for the limited purposes permitted by law, to the victim impact statements which were read in Court by Robert McEnallay, the father of Senior Constable McEnallay, and by Amanda Mahon, who had been that officer’s partner and intended wife.
[38] Together they disclose, in a most graphic and tragic way, the enormous and continuing loss, which has been occasioned by the wholly unnecessary murder of a fine young man, who had earned the respect of his family, his partner, his peers and the community.
[39] I cannot, in these remarks on sentence, even begin to reproduce, in any adequate way, the depth of the loss which they have described. Their statements however remain on the public record as a tribute to the man they loved, and it is better that they be allowed to speak for themselves as to the consequences of the brutal, cowardly and senseless acts of the offenders in this case.”

9 With respect to the factors his Honour took into account in sentencing the Respondent his Honour said:

“[41] On any view, Sione Penisini’s culpability, as the offender who fired the fatal shots, was extremely high, and in excess of that of the other co-offender, John Taufahema, who also stands convicted of murder.
[42] Police officers who are carrying out their duty are entitled to expect the maximum protection from the courts, in imposing condign sentences upon offenders who use firearms to resist their lawful apprehension. Murder, in any circumstances, is the most serious crime in the criminal calendar. Its seriousness is significantly increased when it is committed by an offender who, when faced with imminent arrest by a person who is known to be a police officer engaged in the execution of his duty, uses a firearm or other weapon in a manner which brings about death.
[43] In the present case, I am satisfied that not only was Penisini guilty of felony murder, arising from his use of a weapon in circumstances which would attract s 33 of the Crimes Act 1900. Despite his assertion to the contrary, in the course of giving a history to Katherine Barrier, and despite the submission of his counsel that his intention should be found to have been an intention to inflict grievous bodily harm, I am satisfied beyond reasonable doubt that Penisini shot at Senior Constable McEnallay with the intention of killing him. That is an inevitable inference to be drawn from the concentration of shots within the narrow target area, identified by the bullet holes in the windscreen, in front of the position where Senior Constable McEnallay was sitting, and from the fact that he was seen to discharge the shots in quick succession, from a distance of about 10 metres, without any prior warning.
[44] These circumstances place his offence within the upper range of seriousness for an offence of murder. The compelling need to ensure that the sentence, in a case such as the present, reflects a very substantial element of general deterrence, in addition to the considerations of personal deterrence, retribution and punishment, is long established.”

10 His Honour referred to a number of authorities which established that proposition. His Honour then said:

“[48] The Crown submitted that this is a case where there were present the following factors of aggravation mentioned in s 21A(2) of the Crimes (Sentencing Procedure) Act :
(a) The victim was a police officer acting in the execution of his duty;
(c) the offences involved the use of a weapon;
(d) the offender had prior convictions;
(e) the offences were committed in company;
(i) the murder was committed without regard to public safety; and
(j) the offender was on conditional liberty.
[49] Additionally it submitted that there were aggravating circumstances so far as the shooting was done to conceal the commission of other offences, namely the possession by the occupants of the vehicle of firearms, and so far as the murder of Senior Constable McEnallay involved a deliberate shooting of a police officer at a time when he was defenceless.
[50] Each of these matters, I accept to have been present, although there is clearly an overlap between them, such that they should not have an individual compounding effect, or indeed any effect where they are an element of the offence.
[51] I have already sufficiently noted the most relevant aggravating factors concerning the manner in which the individual offences were committed. Otherwise I take the view that the objective criminality of Penisini is significantly compounded by the fact that the three offences were committed while he was on parole for the earlier very serious offences …”

11 His Honour identified a range of robbery offences including aggravated robbery with wounding and armed robbery some of which had been committed in a particularly brutal manner. His Honour noted that when the sentencing judge had sentenced him for these earlier offences she had accepted evidence that he had embarked on management of his drug problem and had some prospects of rehabilitation. This conclusion had been shown to be unfounded.

12 His Honour outlined the personal background of the Respondent. Having expressed forcefully the extreme gravity of the offence, his Honour also referred to the fact that the offence was committed on parole as an aggravating factor. His Honour then listed a range of mitigating factors as follows:

“[71] First and foremost, they include his pleas of guilty, which can properly be regarded as having been offered relatively early in the proceedings, allowing for the circumstance that the final plea followed upon discussions between counsel which occurred after the plea to the primary count had been entered at arraignment. These pleas, along with his acknowledgement of having been the shooter, provided some measure of assistance to the Crown, and had a utilitarian value not only in relation to the proceedings so far as they related to him, but also so far as they led to a narrowing of the issues, and reduction in the time taken for the trial of the co-accused.
[72] That utilitarian value is not to be discounted by the circumstance that the case against him was, despite the submissions of his counsel to the contrary, overwhelming, in relation to all counts, given the circumstances of his pursuit and arrest and the presence of gunshot residue on his gloves and clothing: Regina v Carter [2001] NSWCCA 245. However the strength of the Crown case does impact upon the extent of contrition or remorse which is reflected by a plea given in circumstances where a conviction is inevitable.
[73] I also accept that Penisini entertains genuine remorse in relation to these offences, even though that has not been personally expressed by him, in the presence of those who were directly affected by his offences. I see no reason to disbelieve his father or brother, or the other witnesses who have been informed of his remorse. Although the pleas might not of themselves have carried much weight in this regard, the fact that he responded to his brother’s instruction, to be true to himself, by acknowledging that he was the shooter, also tends to confirm the fact of his remorse and contrition.
[74] Apart from his pleas and the assistance associated therewith, and the degree of remorse which he has expressed, the only other factor of mitigation which falls within the express provisions of s 21A(3) of the Crimes (Sentencing Procedure) Act, upon which he can rely is circumstance (b), namely that the offences were not part of a criminal activity that was planned or organised in any meaningful way.
[75] Independently of that provision, however, are the circumstances that he is still only 24 years of age and that the sentences which must necessarily be imposed will mean that he will spend, in prison, what otherwise could have been the rewarding years of his life, when he might have acquired employment and a family.
[76] I do not believe, despite his expressions of remorse, that he has much in the way of insight into his ongoing criminality. Nor do I understand why it is, despite every opportunity having been given to him, in the course of his upbringing, that he has betrayed his family, and his community, by choosing the lifestyle of a violent repeat offender.
[77] The very nature of the present offence, involving the cold blooded murder of a police officer to avoid arrest, his failure to respond to parole, or to be deterred by the earlier period of imprisonment, and his preference for associating with other criminals, each of whom was on this occasion armed, leads me to the conclusion that his prospects of rehabilitation are somewhat bleak, although they cannot be dismissed, with any degree of certainty, as negligible.
[78] He has been assessed as having sufficient intelligence and social adeptness to respond to therapeutic intervention, but whether he will do so is entirely a matter of choice for him.
[79] In assessing his future dangerousness, I am to a degree hampered by the lack of any psychiatric opinion, or psychological report, which directly addresses that issue. Certainly there is nothing before me to suggest the existence of any disturbance of mind or other personality disorder which would, on the one hand, point to him being inherently and incurably dangerous, or, on the other hand, to the possibility of any such condition being addressed by appropriate treatment.
[80] In those circumstances, the only assessment that can be made of his future dangerousness depends upon the circumstances of the present offences …
[81] In my view those matters do establish that, currently, he does present some risk of being a danger to the community of the kind referred to in Veen v The Queen (No. 2) , and of being a person who, unless he undertakes a real change in his approach to life, is likely to reoffend in a serious way. That does not justify preventive detention, but it is a circumstance properly to be taken into account in fixing an appropriate sentence, and in particular, in considering whether he comes within the ambit of s 61(1) of the Crimes (Sentencing Procedure) Act , to the point where the sentence for the murder count, for which the Crown contends, namely life imprisonment, should be imposed.”

13 The Crown maintains its submission that this was a case for which life imprisonment was the appropriate penalty. Wood CJ at CL dealt with this matter as follows:

“[82] The sentence of life imprisonment, which now carries with it the prospect of never being released, is reserved for the worst cases of murder and for those which answer the requirements of the provision last mentioned, namely, that the level of culpability in the commission of the offence is ‘so extreme that the community interest in retribution, punishment, community protection and deterrence can only be met through the imposition of that sentence.’
[83] I have given very careful consideration to the question whether the present offence of murder falls within the level of culpability that would call for the maximum sentence, either as a ‘worst category’ case or by reference to s 61(1) of the Crimes (Sentencing Procedure) Act .
[84] Some assistance in that regard is to be gained by reference to the cases in which the maximum sentence has been imposed for offences of murder. Relevantly they include Regina v Garforth NSWCCA 23 May 1994, Regina v Milat NSWSC 27 July 1996, Regina v Street NSWCCA 17 December 1996, Regina v Fernando (1997) 95 A Crim R 533, Regina v Leonard NSWCCA 7 December 1998, Regina v Rose [1999] NSWCCA 327, Regina v Glasby (2000) 115 A Crim R 465, Regina v Smith [2000] NSWCCA 202, Regina v Harris (2000) 121 A Crim R 342, Regina v Lewis [2001] NSWCCA 448, Regina v Knight [2001] NSWSC 1011, Regina v Miles [2002] NSWCCA 276, Regina v Sievers [2002] NSWSC 1257, Regina v Valera [2002] NSWCCA 50, and Regina v Ngo [2003] NSWCCA 82.
[85] As Rose, Miles and Harris disclose, the fact of a plea of guilty does not automatically mean that the maximum sentence is not available. Rose was, however, a case involving five murders committed by a career criminal, each of which was of a planned gangland kind. Miles was a case in which the offender committed a second murder after having escaped from custody while serving a determinant sentence for an earlier murder. Sievers was also a case of an offender who had committed a second murder after having served a sentence for a previous similar murder.
[86] Harris involved three murders which involved defenceless victims, and which had been planned by an offender who harboured homicidal thoughts and had only a limited understanding of his behaviour. Street involved the brutal murders of two defenceless women, by an offender with a long-standing record of criminality, including a terrifying record of violence towards women. Leonard also involved two murders by a man found to be a psychopath who happened to be of a similar age to Penisini, the first involving the random shooting of a person with a bow and arrow, which the offender found to have been pleasurable, and the second occurring in the course of the commission of a robbery upon a vulnerable taxi driver; while Milat was a case of the serial killing of a number of young backpackers by a very disturbed and dangerous offender. Valera was also a case of double murder, involving the added elements of torture and gratuitous violence, which had been motivated by hatred towards persons believed to have been of a particular sexual orientation.
[87] Fernando involved the abduction of a defenceless nurse from a hospital, and her murder with a machete after she had been subjected to seriously degrading sexual assaults by two offenders with lengthy prior records, extending over an hour or so, in circumstances of premeditation and planning. Garforth also involved an abduction, followed by a sexual assault and murder, by an offender with a long criminal record, of a nine-year-old girl. Knight involved a premeditated and brutal murder and dismemberment of the deceased by an offender with a grossly disturbed personality and propensity for violence.

[88] Lewis, Glasby and Smith , each involved gangland or contract killings, and Ngo involved a premeditated and organised assassination of a political rival.
[89] These cases, on any view, all fall into the worst category of murder, or involved offenders whose serious ongoing danger to the community was patently obvious.
[90] The present offence of murder, insofar as Penisini is concerned, attracts a particular degree of heinousness from the reason for its commission, namely to avoid arrest by a police officer who was known to be acting in the course of his duty. Had there been any real degree of premeditation or planning in the present case, then, notwithstanding the plea of guilty and remorse, I would have imposed a life sentence, similarly to the cases mentioned. In that regard, as was recognised in Leonard , Rose , Fernando and Harris , there are cases where the offence is so heinous that the subjective circumstances including any plea of guilty should be entirely discounted.”

14 His Honour concluded that a determinate but severe sentence should be imposed for the murder, rather than a life sentence.

15 Mr R Cogswell SC, who appeared for the Crown, submitted that Wood CJ at CL erred in determining that this was not a case which warranted a life sentence.

16 First, he referred to his Honour’s conclusion that he would have imposed a life sentence if there had been a “real degree of pre-meditation or planning”. This was not challenged as a factual conclusion. However, Mr Cogswell submitted the factor did not lead to the conclusion that a life sentence was not required. It was submitted that the absence of pre-mediation does not necessarily take a murder out of the worst case category. (Reference was made to R v Leonard, unreported, NSWCCA, 7 December 1998.)

17 Secondly, notwithstanding the lack of pre-mediation, his Honour failed to take into account an aspect of the murder which, according to the Crown submissions, made up for that absence. This was the fact that what occurred was a calculated pre-emptive strike. The Crown submitted that the murder of a police officer in the execution of his duty reaches the requisite degree of heinousness for the imposition of a life sentence when the murder occurs in circumstances where the officer is deprived of any opportunity of self-defence or self-protection and, therefore of the ability to use the training in that regard which police officers have.

18 As to the first submission of the Crown, a fair reading of his Honour’s remarks on sentence does not suggest that his Honour intended to suggest that pre-meditation or planning was a necessary component for a case to be placed in the worst category of the offence of murder. What his Honour said was that on the facts of this case the absence of pre-meditation or planning made an important difference. His Honour indicated that if there had been pre-meditation or planning then, in all of the circumstances of the case including the subjective case of the Respondent, this would have been an appropriate case for a life sentence. That does not suggest that pre-meditation or planning is required in every instance where a police officer is murdered in the execution of his duties before a life sentence can be imposed.

19 With respect to the second Crown submission, i.e. the degree of heinousness associated with a calculated pre-emptive strike which deprives a trained police officer of an opportunity of self-defence or self-protection, I do not see that this is of such significance as to be a matter of particular weight in the choice between a substantial prison sentence and a life term. The crime committed here is of a very high level of severity by reason of the fact that it involved the deliberate execution of a police officer in the performance of his duties. That the crime was committed in such a manner as to take the police officer completely by surprise is an element to be considered in the overall judgment, but it is not an element entitled to substantial, let alone, decisive weight. The crucial fact is the intention to kill in a cold blooded and deliberate manner, knowing that the victim was in fact defenceless and that he was engaged in the performance of a public duty.

20 The courts will, and do, give great weight to the protection of members of the police force by reason of the fact that in the course of their duties, they are called upon to place themselves in danger and do so for the benefit of the community at large. That is why the courts have always accepted that the fact that the victim was a police officer is a substantially aggravating factor. The element of surprise is not, in my opinion, a significant element of further aggravation with respect to an element of aggravation that is already given substantial weight in and of itself.

21 Wood CJ at CL was very conscious of the fact that the victim was a police officer and gave that fact substantial weight in determining to impose a heavy sentence.

22 Wood CJ at CL took into account a range of factors including the plea of guilty, the defendant’s age and the expressions of remorse. The degree to which factors of this character were mitigating was discussed by his Honour in the terms that I have set out above. There is no suggestion in his Honour’s reasoning that any one of these factors was determinative. For example, his Honour made reference to the youth of the Respondent, who was 22 at the time he was taken into custody. A life sentence would amount to something in the order of 50 years or more. Notwithstanding the harshness of a sentence of that length, it is appropriate to impose such a sentence on a young offender where the circumstances warrant it. The question of age is not determinative, but it is a relevant factor.

23 His Honour took into account the full range of relevant considerations. The particular criticisms advanced of his judgment in the submissions on behalf of the Crown should be rejected.

24 Nothing in his Honour’s reasons understated the brutality of the conduct. The sentence he imposed was a heavy sentence, even for the crime of murder. His Honour’s reasons indicate a careful balancing of the full range of relevant factors. This Court should not interfere with a discretionary decision which shows on its face that all relevant considerations have been considered and have been carefully and appropriately balanced. The judgment of Wood CJ at CL is of that character.

25 The orders I propose are:

1 Vacate the non-publication order of 9 March 2004.

2 Appeal dismissed.

26 HIDDEN J: I agree with Spigelman CJ.

27 BUDDIN J: I agree with Spigelman CJ.

**********

Last Modified: 10/18/2013