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R v Pennisi

R v Pennisi

Case [2001] NSWCCA 326 4 September 2001

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CITATION: R v Pennisi [2001] NSWCCA 326

FILE NUMBER(S): CCA 60360/01

HEARING DATE(S): 21 August 2001

JUDGMENT DATE:
4 September 2001

PARTIES :

Regina
Rosario Pennisi

JUDGMENT OF: Beazley JA at 1; Wood CJ at CL at 1; Carruthers AJ at 1

LOWER COURT JURISDICTION: Supreme Court

LOWER COURT FILE NUMBER(S) : 70064/00

LOWER COURT JUDICIAL
OFFICER : Bell J

COUNSEL : Appellant: D A Buchanan SC
Crown: R D Cogswell SC

SOLICITORS: Appellant: John Bettens & Co
Crown: S E O'Connor

CATCHWORDS: Manslaughter - Sentencing - Length of non-parole period - Discount for plea

LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999 (NSW); ss 22, 44(2),

CASES CITED:
Isaacs v R (1997) 41 NSWLR 374
R v Bryant [1999] NSWCCA 181
R v Esposito [2000] NSWCCA 284
R v MacDonald (unreported, New South Wales Court of Criminal Appeal, 12 December 1995)
R v Oinonen [1999] NSWCCA 310
R v Chetcuti (unreported, New South Wales Court of Criminal Appeal, 24 December 1993)
R v Moffit (1990) 20 NSWLR 114
Phelan v R (1993) 66 A Crim R 446
R v Farroukh (unreported, New South Wales Court of Criminal Appeal, 29 March 1996)
R v Morrissey (unreported, New South Wales Court of Criminal Appeal, 15 July 1994)
R v Kenworthy (unreported, New South Wales Court of Criminal appal, 3 August 1995)
R v Thomson; R v Houlton (2000) 49 NSWLR 383

DECISION: Leave to appeal granted; Appeal dismissed

IN THE COURT OF
CRIMINAL APPEAL

60360/01

BEAZLEY JA

WOOD CJ at CL

CARRUTHERS AJ

Tuesday, 4 September 2001

R v PENNISI

FACTS
The applicant sought leave to appeal against the sentence imposed by Bell J for the manslaughter of Rodolfo Valentino. The deceased died as a result of gun shot wounds, having been shot by the applicant ten times at close range. The deceased and the applicant were engaged in a legal dispute at the time of the incident. The applicant’s intention was to scare the deceased in an attempt to have him drop the legal proceedings.

· had assisted and co-operated with the authorities;

· was a person of good character;

· was suffering from anxiety and/or depression at the time of the offence;

· had strong family ties;

· did not pose a risk of re-offending;

· had good prospects for rehabilitation; and

· had offered to plead guilty to manslaughter prior to the committal.

Bell J sentenced the applicant to 9 years imprisonment and specified a non-parole period of 6 years.

HELD per the Court
(i) The sentence was not outside an appropriate discretionary range, given the extreme objective gravity of the offence and the applicant’s intention to scare the deceased out of proceeding with a…

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 Pennisi

Details

AGLC: R v Pennisi [2001] NSWCCA 326
Case: [2001] NSWCCA 326
Decision Date: 4 September 2001

CaseChat Overview and Summary

The case of R v Pennisi was heard by the Court of Appeal in New South Wales. The respondent, Mr. Pennisi, was convicted of manslaughter and was sentenced to a term of imprisonment with a non-parole period. He appealed against the length of his non-parole period, arguing that it was excessive. The Crown opposed the appeal, arguing that the sentence was appropriate given the circumstances of the case.

The legal issues before the court were whether the length of the non-parole period was excessive and whether a discount for the respondent's plea should have been applied. The court considered the principles of sentencing for manslaughter and the relevant case law on non-parole periods and plea discounts. The court also considered the circumstances of the case, including the respondent's criminal history, the circumstances of the offence, and the impact of the crime on the victim and their family.

The court found that the length of the non-parole period was excessive and that a discount for the respondent's plea should have been applied. The court noted that the sentencing judge had not adequately considered the principles of sentencing for manslaughter and had not given sufficient weight to the respondent's plea. The court also found that the sentencing judge had not adequately considered the impact of the crime on the victim and their family. The court reduced the length of the non-parole period and ordered a re-sentencing hearing to determine the appropriate sentence.

The court ordered that the respondent be re-sentenced by a different judge, with a discount for his plea. The court also ordered that the respondent be credited for the time already served in custody.

Orders