Dunne v The Queen
[2011] VSCA 387
•17 November 2011
SUPREME COURT OF VICTORIA
COURT OF APPEAL
| S APCR 2010 0187 | |
| BILLY LEE DUNNE | Applicant |
| v | |
| THE QUEEN | Respondent |
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JUDGES: | BUCHANAN, HARPER and HANSEN JJA | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 17 November 2011 | |
DATE OF JUDGMENT/ORDER: | 17 November 2011 | |
MEDIUM NEUTRAL CITATION: | [2011] VSCA 387 | |
JUDGMENT APPEALED FROM: | [2010] VSC 220 (Lasry J) | |
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CRIMINAL LAW – Sentence – Murder – Plea of not guilty – Offer to plead guilty to defensive homicide - 17 years’ imprisonment with non-parole period of 13 years and 6 months – Whether mitigating factors required shorter non‑parole period – Application dismissed – No point of principle.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr D A Dann | James Dowsley & Associates |
| For the Respondent | Mr B F Kissane | Mr C Hyland, Solicitor for Public Prosecutions |
BUCHANAN JA:
I will ask Hansen JA to deliver the first judgment.
HANSEN JA:
Billy Lee Dunne, the applicant, was found guilty by a jury of the murder of Jessie Repia who he stabbed in the early hours of 23 October 2008. Following a plea in mitigation, the judge sentenced the applicant to 17 years’ imprisonment and fixed a non‑parole period of 13 years and 6 months.
The applicant, who was 21 years’ old at the time of the offending, seeks leave to appeal against the sentence on the sole ground that the judge erred in failing to impose a sufficient gap between the head sentence and the non‑parole period. No complaint is made about the head sentence. Rather, it is said that having regard to all the circumstances, and particularly the applicant’s youth and rehabilitation prospects, the judge ought to have imposed a shorter non‑parole period.
The offending
The offending was described by the learned judge as follows:
2.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 10.20 pm 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.
3.There was some contact between the group of people associated with the deceased and another group of people who were effectively associated with you.
4.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.
5.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.
6.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.
7.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.
8.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.
9.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.
10.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.
11.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.
The applicant
The applicant had priors in the Children’s Court and the Magistrates’ Court for motor vehicle offences, wilful damage and theft. These matters were resolved without convictions being recorded. More importantly, on 20 February 2008 (six months before the present offending) the applicant had been sentenced in the County Court to a total effective sentence of 15 months’ imprisonment, wholly suspended for three years, after pleading guilty to one count of affray and one count of intentionally causing injury. Those charges arose from a street brawl after birthday celebrations at the Robin Hood Tavern, the same bar the applicant attended on the night of the murder. In imposing the suspended sentence, the judge had concluded that the applicant had good prospects of rehabilitation and had expressed some remorse for his actions.
It was in this context – that is to say that the applicant committed a murder barely six months into what may fairly be regarded as a mercifully suspended sentence – that the judge said that he examined the applicant’s rehabilitation prospects and claimed remorse for the death of the victim.
The judge referred to numerous mitigating factors and while I mention some now, they were all identified by counsel in his oral submissions today. First, the applicant’s youth meant that he must pay particular attention to rehabilitation, particularly in considering defence counsel’s submission about an appropriate non‑parole period.
The judge noted the applicant’s limited education (to Year 10), his difficult family history, including his parents’ addiction to heroin, and his mother’s death four years earlier which significantly affected him. The applicant had also had problems with alcohol and drugs, which he used to alleviate his depression. He had been employed both as a concreter and a labourer but was unemployed at the time of the offence.
The judge referred to material demonstrating that the applicant had significant family support, which was relevant to rehabilitation. He noted further that the applicant had participated in a number of courses in custody, including parenting sessions, workplace procedures, first aid, goal setting, coping with change, substance abuse problems and mood management.
The judge accepted defence counsel’s submission that the applicant’s offer to plead guilty to defensive homicide before the committal proceedings and again at the start of the trial indicated regret for what had occurred and a significant level of responsibility for it, and a level of remorse which he took into account. He also accepted on the materials that the applicant had demonstrated a level of remorse for the fact that the victim had lost his life.
Submissions
As mentioned, counsel for the applicant conceded that the head sentence was within range. His only complaint was the non‑parole period.
In counsel’s written submissions he relied on statements often made in this Court[1] to the effect that a non‑parole period which exceeds 75 per cent of the head sentence, while not necessarily indicating error, may invite appellate scrutiny, particularly where no reasons are given to explain it, and noted, further, that the non‑parole period here was just under 80 per cent of the head sentence – in fact, 79.4 per cent – and submitted that no reasons were given for this unusual relationship between the head sentence and non‑parole period.
[1]R v Tran [2006] VSCA 222, [27]-[28]; R v Detenamo [2007] VSCA 160, [26].
In oral submissions today counsel, recognising the difficulty which cases such as Romero v The Queen[2] represent in relation to such an argument, rather emphasised the particular features of the present case that lent aid to the submission that, in this case, the non‑parole period should have been shorter than that fixed. These were the matters which had been identified by the judge in his sentencing remarks and it is not necessary to set them out.
[2][2011] VSCA 45.
Essentially, counsel submitted that the applicant’s prospects of rehabilitation were central to the determination of the appropriate non‑parole period,[3] and that the judge had appeared to accept that the applicant had good prospects for rehabilitation. In all the circumstances, the judge ought to have given greater weight to the mitigating factors in setting the non‑parole period.
[3]See, for example, R v VZ (1998) 7 VR 693.
The respondent submitted that a non‑parole period representing 79 per cent of the head sentence of 17 years was not unusually long. Further, the head sentence and non‑parole periods imposed were moderate for the crime of murder following a trial. Thus, it was submitted, no error was demonstrated.
Conclusion
In my view, in his concise yet thorough sentencing remarks, the judge covered all relevant matters. He referred to the applicant’s youth on several occasions and said that he paid careful attention to it, particularly in considering defence counsel’s submission about an appropriate non‑parole period. That submission was made in the context of the Crown range being a head sentence between 16 and 18 years, with a non‑parole period between 13 and a half and 16 years. In his sentencing remarks, the judge described this range as helpful and moderate, demonstrating that the prosecutor had taken into account many of the mitigating circumstances on which the defence relied.
In the course of the plea, defence counsel agreed with the judge’s observation that the range was ‘reasonably moderate’ and later added that it was ‘realistic’. After the judge indicated that he would not go beyond the upper end of the range, defence counsel confined his attention to the non‑parole period, submitting that ‘a figure somewhat even under’ the Crown range would be appropriate, given the applicant’s youth and rehabilitation prospects. Further, he submitted, the judge could satisfy the requirements of punishment and deterrence by imposing a head sentence within the Crown range but allowing ‘a somewhat earlier parole’ to allow the applicant to continue his rehabilitation in the community.
In my view, the judge had proper regard to that submission. Indeed, while the head sentence of 17 years fell in the middle of the Crown range, the non‑parole period of 13 years and six months fell at the bottom of the range. It is thus apparent that the judge moderated the non‑parole period on account of the applicant’s youth and rehabilitation prospects.
As to the latter, the applicant’s submission that the judge found that the applicant had good rehabilitation prospects somewhat overstates the position. The judge said that the applicant was a young man ‘not by any means beyond redemption’ and that there were ‘good reasons to expect that given the opportunity upon your release from custody you will be able to lead a valuable life’. But this was tempered by the fact that he had committed murder while on a suspended sentence for violent offending imposed on the faith of rehabilitation prospects which had not come to pass. Read as a whole, it can be inferred that the judge considered that the applicant’s rehabilitation prospects were reasonable. But, however they be described, any moderation of the non‑parole period on account of the applicant’s youth and rehabilitation prospects could only go so far. As Redlich JA observed in Romero v The Queen[4]:
The ratio between the head sentence and non-parole period more commonly found for lesser offences and lower sentences are generally unlikely to be appropriate for murder and other serious crimes attracting similarly long head sentences, as they would create inordinately long parole periods and the non-parole period would not then, as it must, also reflect the gravity of the offending. The non-parole sentence would be shortened beyond the lower limit of what might be reasonably regarded as condign punishment. Other purposes of sentencing that are relevant to fixing the non‑parole period as well as to fixing the head sentence, such as deterrence and protection of the community, would not then have been given their necessary weight.
[4][2011] VSCA 45, [25].
Those remarks are apposite here. The question of fixing an appropriate non‑parole period reflecting all relevant sentencing considerations was a matter within the discretion of the judge. In circumstances where a head sentence of 17 years was imposed, a non‑parole period of 13 years and 6 months was plainly open. The non‑parole period imposed allowed the applicant a period of three and a half years on parole to aid his rehabilitation, while also apparently reflecting other sentencing considerations.
I would refuse leave to appeal against sentence.
BUCHANAN JA:
I agree.
HARPER JA:
I also agree.
BUCHANAN JA:
The order of the Court is that the application for leave to appeal against sentence is refused.
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