Dunne v The Queen - [2011] VSCA 387

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…

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 Dunne v The Queen

Details

AGLC: Dunne v The Queen [2011] VSCA 387
Case: [2011] VSCA 387
Decision Date: 17 November 2011

CaseChat Overview and Summary

Dunne was convicted of murder and sentenced to 17 years in prison, with a non-parole period of 13 years and six months. Dunne initially pleaded not guilty but later offered to plead guilty to a lesser charge of defensive homicide. The High Court of Australia was asked to review the sentence. The court had to determine whether the mitigating factors presented by the defence warranted a shorter non-parole period. The primary issue was whether the mitigating factors were sufficient to justify a reduction in the non-parole period. The High Court found that the trial judge had appropriately considered all relevant factors and that the sentence was not excessive. The court concluded that there was no point of principle that would warrant a reduction in the non-parole period. As a result, Dunne's application for a reduction in his non-parole period was dismissed. The court upheld the original sentence imposed by the trial judge.

Orders