R v Bacak - [2015] VSC 474

IN THE SUPREME COURT OF VICTORIA

Restricted

AT MELBOURNE

CRIMINAL DIVISION

S CI 2015 0082

THE QUEEN
v
ANTE BACAK	Accused

JUDGE:	LASRY J
WHERE HELD:	Melbourne
DATE OF HEARING:	31 July 2015
DATE OF SENTENCE:	4 September 2015
CASE MAY BE CITED AS:	R v Bacak
MEDIUM NEUTRAL CITATION:	[2015] VSC 474

CRIMINAL LAW – Sentence – Assist an offender – Plea of guilty – Assisting in disposal of the body of the deceased - Undertaking to give evidence in the trial of principal offender – Significant remorse – Good prospects for rehabilitation – Non-custodial sentence appropriate – Community Corrections Order imposed.

APPEARANCES:	Counsel	Solicitors
For the Crown	Mr A. Grant	Office of Public Prosecutions
For the Accused	Mr R. Stary	Stary Norton Halphen

HIS HONOUR:

Introduction

On Friday 31 July 2015 in this court, you pleaded guilty to one charge of, put succinctly, assisting an offender. The facts giving rise to this charge occurred on 30 and 31 October 2014 and the principal offender was John Butorac. Your offending concerned the disposal of the body of a man alleged to have been murdered by Butorac.

Following your plea of guilty, I heard a factual opening and submissions from the Prosecutor and a plea from Mr O’Connell of senior counsel on your behalf. Having given consideration to these submissions it is now my duty to sentence you for this offence. The maximum penalty for assisting an offender pursuant to s 325(1) and (4) of the Crimes Act 1958 is 20 years imprisonment, given the penalty for the principal offence of murder.

Circumstances of the offence

In the early hours of 31 October 2014, Country Fire Authority members were called to a car fire on the Bulla-Diggers Rest Road in Bulla. The fire had been started by the use of a flammable solvent. The badly burnt body of the deceased man Kenan Balikel was found in the boot of the vehicle – a Peugeot 407 station wagon. Mr Balikel had been the owner of the vehicle which was, at the time, unregistered.

An autopsy was conducted later that day which revealed that the deceased had died as the result of a crushing, high impact blow to the neck and thyroid which caused a severe haemorrhage. He was already dead when the car in which his body was placed was set alight.

As mentioned , the deceased man is alleged to have been murdered by John Butorac. You had known Butorac for a long time. You too knew the deceased. He and Butorac were also known to each other, their association commencing two aand a half years earlier . Butorac ran an automotive business known as Customs and Classics in Tullamarine and restored motor vehicles and had been asked to do some work on a Ford Mustang that the deceased had owned.

In the days leading up to the death of Mr Balikel, he had spent time with Butorac. The last place they were together was Butorac’s factory in Tullamarine in…

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 Bacak

Details

AGLC: R v Bacak [2015] VSC 474
Case: [2015] VSC 474
Decision Date: 4 September 2015

CaseChat Overview and Summary

In the matter of the Crown versus Bacak, the case was heard by the Supreme Court of Queensland. The defendant, Bacak, was charged with assisting an offender by helping to dispose of the body of a deceased individual. Bacak pleaded guilty to the charges, which included assisting in the disposal of the body and an undertaking to give evidence in the trial of the principal offender. The case centred on the appropriate sentencing for these offences, given the defendant's plea of guilty, significant remorse, and good prospects for rehabilitation.

The central legal issue was the determination of an appropriate sentence for the defendant. The court had to consider various factors, including the nature of the offence, the defendant's plea, the level of remorse demonstrated, and the likelihood of rehabilitation. The prosecution argued for a custodial sentence, while the defence advocated for a non-custodial sentence, highlighting the defendant's cooperation with authorities and potential for rehabilitation.

The court, after weighing the factors, concluded that a non-custodial sentence was appropriate. The judge noted Bacak's significant remorse, active cooperation with the police, and the absence of any personal gain from the offence. These factors, coupled with the defendant's prospects for rehabilitation, led the court to impose a Community Corrections Order instead of a custodial sentence. The court found that this approach would better serve the interests of justice, including deterrence and rehabilitation, without unnecessarily harming the defendant.

The final orders of the court included a Community Corrections Order for Bacak, which required adherence to specific conditions designed to ensure the defendant's rehabilitation and reintegration into society. The court also ordered Bacak to pay a fine and make a payment to a specified charity. These orders reflect the court's decision to impose a sentence that balances the need for punishment with the potential for the defendant's rehabilitation and community service.

Orders