Director of Public Prosecutions v Dunne
[2010] VSC 220
•27 May 2010
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
CRIMINAL DIVISION
No. 1502 of 2009
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| BILLY LEE DUNNE |
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JUDGE: | LASRY J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 14 May 2010 | |
DATE OF SENTENCE: | 27 May 2010 | |
CASE MAY BE CITED AS: | DPP v Dunne | |
MEDIUM NEUTRAL CITATION: | [2010] VSC 220 | |
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CRIMINAL LAW – Sentence – Murder – Self-defence rejected by jury – Offer to plead guilty to defensive homicide – Similarity of previous offending – Young offender – Drug and alcohol abuse – Family support – Prospects of rehabilitation.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr N Papas SC | Office of Public Prosecutions |
| For the Accused | Mr M Rochford with Ms K Churchill | James Dowsley and Associates |
HIS HONOUR:
Billy Lee Dunne, you have been found guilty by a jury of the murder of Jessie Repia as a result of events that occurred in the early morning of 23 October 2008. You have admitted a number of prior convictions.
Circumstances of the offending
This is yet another tragic case where the impetuous use of a knife has created tragic circumstances for several families. The incident which resulted in the death of Mr Repia began at the Robin Hood Tavern in Frankston at about 10.20pm on the night of 22 October 2008 when the deceased went to that hotel with his brother and several young women who were witnesses in the trial.
There was some contact between the group of people associated with the deceased and another group of people who were effectively associated with you.
Later in the evening the two groups went in different directions. The group of which you were a part walked from the Robin Hood Tavern to the BP Service Station in Nepean Highway for the purpose of getting something to eat.
The group of people including the deceased went to a friend’s house nearby and then after a discussion decided they would endeavour to obtain some marijuana. They went out and approached several people in Frankston for cannabis and it does appear that during one such exchange the deceased confronted one individual with a knife which had an extendable blade. The evidence before me indicated that that matter went no further.
Ultimately, the group associated with Mr Repia and the group associated with you came together at the BP Service Station to which your group had gone.
An enquiry was made by one of the people with the deceased as to whether or not any of you or your friends had marijuana to sell. You indicated that that could be arranged and proposed that you all go to the premises of your friend Paul Bahnert where some marijuana could be obtained.
You then got into a vehicle driven by the witness Bree Saunders who was a friend of the deceased and drove a short distance up Nepean Highway from the BP Service Station to Mr Bahnert’s house. It appears that during the course of the short trip there was some verbal confrontation between you and the deceased and words were exchanged. Ms Saunders gave evidence that you had said “Oh, fuck you Maoris, youse come over here and take all our Aussie women” to Mr Repia in the course of that trip. Ms Saunders said that she then told you and Mr Repia to “shut up” and that you did. It was planned that on arrival at Mr Bahnert’s place you would go into his premises having been given $50 and obtain the cannabis which would then be provided to one of the members of the group of friends associated with the deceased.
There was evidence to indicate that others of your friends were concerned that you would be bashed by the deceased and in fact a friend of yours, Renee Cannon, rang you on a mobile phone and said, “Careful, he’s going to bash you”, referring to the deceased and an apparent intention that he had to assault you.
That phone call occurred whilst you were inside Bahnert’s place. You obtained the marijuana and on the way out of Bahnert’s premises you picked up a large knife, which is referred to as a ‘pig knife’, and took it outside with you. On the basis of the verdict of the jury, they concluded that you then precipitated a level of confrontation between yourself and the deceased as a result of which he got out of the car in which he was sitting whilst they were waiting for you to return with the marijuana. There was then a confrontation between you and the deceased: the deceased was not armed or at least not armed in any way that was apparent to you. You then stabbed him in the chest with this large knife.
The still-conscious deceased was then taken by his friends to the Frankston Hospital, apparently not significantly complaining about the consequences of the stabbing. However, the wound sustained was very substantial, and a result of the internal bleeding that followed was that on 29 October 2008 the deceased lost his life.
On 24 October 2008 prior to the death of the deceased, you were interviewed by the police at Frankston Police Station. During the course of that interview you described having taken some ecstasy and some amphetamine the night before and you had been drinking. You referred to a possible accidental bumping between you and the deceased at the Robin Hood Tavern. You agreed that you were responding to a request for cannabis by those associated with the deceased and you claimed that the deceased was abusive to you. You did effectively in the course of your record of interview maintain that the reason you did what you did was because of a fear that you yourself would be stabbed. It is clear that the jury rejected your defence of self‑defence.
The circumstances are as they occurred and you have been found guilty of murder. The features which led the jury to that conclusion speak for themselves but I do not treat them as aggravating. The jury have found that without lawful justification or excuse you stabbed Mr Repia causing his death. The prosecutor, Mr Papas SC, accepted that the attack on Mr Repia by you was a spontaneous one and not in any sense pre-planned. Otherwise this is a very serious offence.
The sentence to be imposed on you must endeavour to deter others from similar conduct as well as deterring you from any repeat of it after your release.
Victim Impact Statements
As part of the material before me on your plea the prosecutor produced five victim impact statements from Rebecca McDermott, Bree Saunders, Priscilla Walsh, Peter Repia and Thomas Harrison. Although these documents were not read aloud in court as they were entitled to be, I have carefully read them.
The victim impact statements reveal that the deceased man, Jessie Repia, is very sadly missed. He was a partner to Ms McDermott for five years and they had two children. Those children, young as they are, have lost their father and will have to deal with the circumstances of his death as they grow up. There are obviously significant consequences for the emotional wellbeing of Ms McDermott. To her great credit she has not expressed a desire for vengeance but rather great sadness.
Ms Saunders, who was a witness in this case, is suffering from Post Traumatic Stress Disorder and the incident has had a devastating effect on her life. She is under psychological care and is apparently frightened to be alone. From the material in her victim impact statement, it seems that her life in the future is going to be very difficult for some time.
The victim impact statements of the parents of Mr Repia again highlight the tragedy of the loss of their son and its effect on them. The death has affected their health and their day to day functioning and ability to work.
Finally, Jessie Repia’s brother’s statement similarly highlights the tragedy for a sibling in these cases and he is also suffering from what appear to be significant psychological consequences.
I have taken these victim impact statements into account in the sentence that I will impose on you.
Prior History
Your prior history includes offences in both the Children’s Court and Magistrates’ Court for motor vehicle offences, wilful damage and theft. Each of those matters was dealt with on the basis of no conviction being entered and adjournments on conditions including good behaviour.
More significantly however, on 20 February 2008, you were sentenced by Judge Gullaci in the County Court after you pleaded guilty to one count of affray and one count of intentionally causing injury. His Honour sentenced you to a total effective sentence of fifteen months’ imprisonment wholly suspended for three years. The events leading to that sentence occurred in the same area in Frankston and during a street confrontation after birthday celebrations at the Robin Hood Tavern – the same hotel where the events leading your conviction for the murder of Mr Repia happened six months later.
These events also happened six months after his Honour had concluded that you had good prospects of rehabilitation and that you had expressed some remorse for your actions. His Honour placed trust in you and urged you to take advantage of the opportunity he was extending to you. You have failed to do so. You will appear before Judge Gullaci to be dealt with for that breach of your suspended sentence and I make clear that my sentence takes no account of what might occur when that happens.
These matters are of significant relevance for me however because I must examine your prospects for rehabilitation and your claimed remorse for the death of Mr Repia against this most unfortunate background.
Personal circumstances
You are presently aged 22 and are almost 23 years. The fact that you are still so young is a significant factor for me to take into account and I do so. Your youth means that I must pay particular attention to your rehabilitation. The fact that at this young age you have been found guilty of murder is also a tragedy in itself. There are occasions when the duty of the judge to pass a sentence as short as possible upon a young man such as you must give way to the corresponding duty to see that the public is protected so far as possible from offences like this in future. However I have paid careful attention to your age particularly in considering the submission made by Mr Rochford about the period you should serve before being eligible for release on parole.
You are the second of three children and your parents separated when you were 15 years old. You grew up in the Frankston area. Your education finished after Year 10. Your family history demonstrates significant difficulties over an extended period of time. Your parents have apparently been addicted to heroin with all the consequences such addiction involves and there have also been problems with alcohol abuse. Your mother died four years ago and you were apparently significantly affected by that. You have apparently had employment both as a concreter and labourer, however at the time of this offence you were unemployed. You have had your own problems with alcohol and drugs used to alleviate your condition of depression.
A number of written references were provided on your behalf which I have read. They are provided by an impressive collection of people who continue to care about you. In the long term, you must reward their faith in you.
You are said by your older sister to be caring and loving. You are, she says, cared for by your family. Your sister did not give evidence but she writes with care and feeling. You are fortunate to have her support. You also have the support of your uncle and aunt who have attested to your good character. Your father also offers his support to you.
It appears that in your relationship with Lani Van Der Sluys you have taken responsibility for a child born to her from another relationship. It would seem from what Ms Van Der Sluys has written that the relationship with you will continue although of course it will be under very substantial pressure during your imprisonment.
Remorse and rehabilitation
Mr Rochford has relied on several aspects of your conduct that demonstrate a level of contrition on your part for what occurred and which also suggest that your future might be more positive than it looks at the moment.
First Mr Rochford pointed out that you offered to plead guilty to defensive homicide even before the committal proceedings had started. That offer was repeated at the start of the trial. Mr Rochford has argued on your behalf that I should treat that as an indication that you regretted what had occurred and took a significant level of responsibility for it as opposed to refusing to accept any fault. I regard that as an appropriate way to treat those offers.
Second, he has submitted that the manner in which you made yourself available to the police and took part in the interview you did demonstrates a degree of responsibility on your part.
As I have earlier outlined, from the written material you do appear to have significant family support which is relevant to your rehabilitation.
Your time in custody has, to the extent that it can be, been put to good use by you. You have participated in a number courses including parenting sessions, workplace procedures, first aid, goal setting, coping with change, substance abuse problems and mood management. These stand to your credit.
Sentence to be imposed
In the course of helpful submissions, Mr Papas indicated that his instructions were that the Director of Public Prosecutions submitted that the range for the sentence in this case would be between 16 and 18 years as the head sentence and a period between 13 and a half and 16 years as being the range for the period that you must serve before being eligible for release on parole.
This range is both helpful and represents a moderate range of sentence demonstrating that in making the submission the prosecutor has taken into account many of the mitigatory circumstances on which you rely and to which Mr Papas referred in his opening submissions.
I am prepared to accept that your willingness to plead to the count of defensive homicide represents a degree of acceptance of responsibility for what you have done and a level of remorse and I have taken that matter into account in the sentence that I will impose. I also accept on the material before me that you have demonstrated a level of remorse for the fact that Mr Repia has lost his life. As I expressed in the course of submissions it is, putting it neutrally, extremely regrettable that a young man such as yourself must first be found guilty of murder before the true danger and tragedy of the use of knives in the community becomes apparent. However, having said that, you are a young man and not by any means beyond redemption. Indeed, there are good reasons to expect that given the opportunity upon your release from custody you will be able to lead a valuable life. You have, as I have earlier said, family support and are being strongly supported by your fiancé.
You may never remember what I am about to say to you but when you have served the very substantial sentence that the crime of murder requires you will still have much of your life ahead of you. If you do not then take such opportunities as are available to you, the remainder of your life will be very difficult indeed. For your own sake, I urge you to take every opportunity that you can from here on. I think you may finally see that now.
For the murder of Jessie Repia you are sentenced to be imprisoned for a period of 17 years. I fix a period of 13 years and 6 months as the period you must serve before you are eligible for release on parole.
I declare that the period to be reckoned as already served is 581 days inclusive of today’s date.
I direct that these declarations and their details be noted in the records of the Court.
I will make the order sought by the Crown pursuant to s 464ZF(2) of the Crimes Act which is not opposed on your behalf.
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