Director of Public Prosecutions v Bahnert (Sentence)

[2010] VSC 265

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

No. 1502 of 2009

DIRECTOR OF PUBLIC PROSECUTIONS

v

PAUL ANDREW BAHNERT

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JUDGE:	LASRY J
WHERE HELD:	Melbourne
DATE OF HEARING:	7 June 2010
DATE OF SENTENCE:	17 June 2010
CASE MAY BE CITED AS:	DPP v Bahnert (Sentence)
MEDIUM NEUTRAL CITATION:	[2010] VSC 265

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CRIMINAL LAW – Sentence – Suspended sentence – Assist offender – Avoid detection of offence of principal offender – Victim later died – Plea of guilty – Avoidance of further trial.

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APPEARANCES:	Counsel	Solicitors
For the DPP	Mr N Papas SC	Office of Public Prosecutions
For the Accused	Mr S Gardner	Paul Vale Criminal Law

HIS HONOUR:

1. Paul Andrew Bahnert you have pleaded guilty to a count of assisting an offender. That count alleged that at Frankston on 23 October 2008 knowing or believing that Billie Lee Dunne committed a serious indictable offence, namely, causing serious injury intentionally to Jessie Repia you, without lawful authority or excuse, did an act with the purpose of impeding the apprehension, prosecution, conviction or punishment of Billie Lee Dunne. Pursuant to s 325 of the Crimes Act, the maximum penalty for your offence is 5 years imprisonment. 

1. In addition to your plea of guilty you admitted that you were, on 11 December 1995, in the Frankston Magistrates’ Court, convicted of assault in company and causing injury intentionally or recklessly and sentenced to a term of imprisonment of three months on the first charge, such sentence being wholly suspended for 12 months, and sentenced to be released on a Community Based Order for 12 months on the second charge with 150 hours of unpaid community work and the undergoing of assessment and treatment.

1. In this matter you were originally presented for trial with Billie Lee Dunne.  He was subsequently found guilty by a jury of the murder of Jessie Repia.  You had been presented on the count of assisting an offender, being Mr Dunne, knowing or believing that he had committed the offence of murder.  At the time that you did the acts that resulted in you being charged you could not have believed that Mr Dunne was guilty of murder because the deceased man had not yet died of his injuries.  Mr Repia’s death in fact occurred some six days later.   Some distance into the trial the senior prosecutor, Mr Papas, sought to amend the count in relation you by altering the description of the offence which you either knew or believed that Mr Dunne had committed at that stage.   As a result of that application, your counsel applied for the jury to be discharged in relation to your trial and Mr Papas effectively consented.  The trial of Mr Dunne continued to verdict.   Your trial was re-fixed and upon the filing of the amended presentment you pleaded guilty.

1. On 27 May 2010 I sentenced Mr Dunne as a result of a verdict of guilty of murder in his trial.  Those reasons for sentence do not describe in any detail your role in these incidents. 

1. In summary your participation in this unfortunate incident was as follows. On the night of 22 October 2008, you and Mr Dunne were at the Robin Hood Tavern in Frankston.  After a period of time you left the hotel and made your way home to premises on the Nepean Highway in Frankston where you fell asleep.

1. Some time after you arrived home, Mr Dunne telephoned you seeking marijuana.  He arranged to purchase marijuana from you to be provided to the people that he was with including the deceased man Jessie Repia.  Some time later, Mr Dunne arrived at your premises and obtained the marijuana from you.  On the way out of your premises, and on the basis that he expected a confrontation with the deceased man Jessie Repia to occur, he collected a large knife which was described in some circumstances as a pig knife. You later said you were using the knife as some form of door handle.  Dunne was thus armed with the knife for the expected confrontation with the deceased.

1. You followed Mr Dunne outside and witnessed what occurred. Mr Dunne confronted Mr Repia and using that knife fatally stabbed him.  Mr Repia died of his wounds six days later. 

1. After the confrontation, Mr Repia was taken by his friends to the Frankston Hospital and you took Mr Dunne back to your premises and insisted that he remove his clothing.  You replaced those clothes with some of your own and also took the knife which had been used by Mr Dunne to stab Mr Repia.  You then took that bundle of items to a path at the back of your premises along the Kananook Creek and some distance away from your premises put them in a pile and set fire to them.  During the course of that happening in the early hours of the morning of 23 October 2008 a witness, Mr Nock, came on the scene on his way to the Frankston Railway Station.  You then pretended to be putting the fire out and he assisted you, you telling him that you were there on your early morning walk or words to that effect.

1. Some time later you returned to where the burnt clothes were and extracted the knife which you then threw into the creek.  That knife was never recovered by police. 

1. You told police you thought you were helping Dunne but as to what you were helping him to do you claimed to be unsure.  Your plea of guilty now answers the question because it is obvious you were endeavouring to help him avoid detection. 

1. In the course of helpful submissions for the prosecution, Mr Papas SC submitted that this was a significant offence and given the seriousness of it and the nature of it, it was an offence which should attract imprisonment.  I should add that I agree with that submission.  However, Mr Papas accepted that the discount for your plea of guilty should be significant given the consequence of avoiding a further trial of this matter and Mr Papas said that on instructions the period of imprisonment appropriate was a period not exceeding three years and that it was a matter for me as to whether such imprisonment should be partially or wholly suspended. 

1. Mr Papas also referred to the victim impact statements which I have set out in detail in the sentencing reasons in relation to Billie Lee Dunne.  Those particularly relate to the action of Mr Dunne in fatally stabbing Mr Repia but there is clearly a consequence for the victims of this offence in you making the detection of the offence and the prosecution of it more difficult.  I take them into account in the sentence that I will impose on you.  The impact of the offending on these people is the impact of all of the offending including yours.  However clearly Mr Dunne’s actions have had the most direct and significant effect on them. Although Mr Dunne was found guilty, the recovery of the knife would have aided the prosecution case.   

1. I do think your actions on this night were spontaneous rather than planned. I also note that your attitude to the police investigation was one of co-operation.  You answered the questions of you apparently honestly and participated in an effective re-enactment of what you did, having told the police what you had seen and done. That counts to your credit.

1. You are 34 years of age and were 32 at the time of the offending.  You are supported by your brother and your mother and father.  Your brother has apparently attended each day of your trial and later proceedings. Your family history involves difficulty confronted by your parents, particularly financially, but notwithstanding those difficulties you were afforded a private school secondary education, completing Year 12 in 1993 at Haileybury College and you then took up work as a concreter. 

1. Your employer, Wayne Jefferies, gave evidence before me on your plea.  He told me that you were his principal consistent employee and that you had worked for him in residential concreting for two and a half years.  He said that you were punctual, reliable and he would continue to employ you into the future even if you were required to serve actual time in custody.  Mr Jefferies said you were respectful of the properties on which you worked and had a good relationship with his  customers. 

1. In the course of his submissions Mr Gardner put to me that a consequence of this matter has been a realisation by you of the effect of alcohol and drugs.  As a result of your bail conditions originally imposed in this matter you have not been permitted to attend licensed premises in the Frankston district and in particular the Robin Hood Tavern which had the genesis of this incident.  Mr Gardner put to me that your lifestyle has changed as a result and that the cycle of alcohol and drugs in your case has been broken. 

1. He also submitted that the prior conviction on 11 December 1995, whilst relevant, should be considered in the overall context that it occurred 15 years previously and that it would appear you complied with the conditions which were imposed on you in that sentence.  I agree with that submission.

1. Mr Gardner also relied on the utility of avoiding a further trial.  He accepted on your behalf that your actions in relation to Billie Lee Dunne were a product of misguided loyalty but explained that the relationship between you and Mr Dunne was one which had developed when you were in a relationship with Mr Dunne’s sister and which had continued notwithstanding the end of that relationship. 

1. I can only hope that what has been put to me is true and that you have realised there is a cycle in your life that needed to be broken.  You have been a first hand witness to a needless tragedy in the death of Jessie Repia.  It occurred for no good reason and many other lives have also been quite dramatically affected including yours.  Another step into the criminal justice system for you, Mr Bahnert, will have very serious consequences indeed.  I strongly advise you to make everything you can of the opportunity being afforded to you now.

1. On the count of assisting an offender you are sentenced to be imprisoned for two years.  I will wholly suspend that sentence for a period of two years. 

1. I consider it desirable that the sentence of imprisonment that I have imposed be wholly suspended and pursuant to s 27(1A) of the Sentencing Act, I indicate that I have considered the need, considering the nature of the offence, its impact on any victim of the offence and any injury, loss or damage resulting from the offence, to ensure that the sentence adequately manifest the denunciation by the court of the type of conduct in which you engaged.  I have also considered whether the sentence adequately deters you or other persons from committing offences of the same or similar character and reflects the gravity of the offence.  I consider that there is no prospect of you committing other criminal offences hereafter.

1. I am required to explain to you that if you commit any offence punishable by imprisonment during the next two years, and assuming a court finds you guilty of such an offence, then you may be required to go to prison for the period of this sentence, or some lesser period, or the period of the suspended sentence may be extended.  Even if the suspended sentence were to be extended, you may still be required to serve part of the sentence of two years' imprisonment.

1. Pursuant to s 6AAA of the Sentencing Act 1991, I declare the sentence I would have imposed but for your plea of guilty would have been two years imprisonment and I would have suspended only 12 months of that sentence for a period of two years. This would have meant that you would have been required to actually serve twelve months’ imprisonment.

1. I direct that these declarations and their details be entered into the records of the Court.

1. I have made the forensic order sought by the Crown and not opposed on your behalf.

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