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R v Bakunowich & Dalgleish

R v Bakunowich & Dalgleish

Case [2021] QDC 346 15 October 2021

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DISTRICT COURT OF QUEENSLAND

CITATION:

R v Bakunowich & Dalgleish [2021] QDC 346

PARTIES:

THE QUEEN

v
STEPHEN BRENDAN BAKUNOWICH &
KELLIE JEAN DALGLEISH

FILE NO/S:

32 of 2021

DIVISION:

Criminal

PROCEEDING:

Sentence

ORIGINATING COURT:

Ipswich District Court

DELIVERED ON:

15 October 2021

DELIVERED AT:

Ipswich

HEARING DATE:

4 June 2021

JUDGE:

Horneman-Wren SC DCJ

ORDER:

The sentencing of the defendants be adjourned to 14 December 2021

CATCHWORDS:
LEGISLATION:
CASES:

CRIMINAL LAW – SENTENCE – fact finding on sentencing – process to be followed – course of evidence – whether judge must give indication of whether finding of a fact adverse to defendant is capable of being made on evidence called only by prosecution prior to defendant choosing whether to go into evidence on issue – whether failure by judge to give indication before defendant decides whether to go into evidence on issue is a reversal of onus of proof – whether failure by judge to give indication before defendant decides whether to go into evidence is a denial of natural justice.

Evidence Act s 132C

Penalties and Sentences Act 1992 s 15(1)

Briginshaw v Briginshaw (1938) 60 CLR 336

Filippou v The Queen (2015) 256 CLR 47

G v H (1994) 181 CLR 387

Jones v Dunkel (1959) 101 CLR 298

May v O’Sullivan (1955) 92 CLR 654

R v Field [2017] QCA 188

R v Gerhardt [2019] QCA 283

R v RBE [2021] QCA 146

Strbak v The Queen (2020) 267 CLR 494

The Queen v Olbrich (1999) 199 CLR 270

COUNSEL:

Mr C Wallis for the Crown
Ms D Holliday QC for the defendant Bakunowich

Mr J R Jones for the defendant Dalgleish

SOLICITORS:

Office of the Director of Public Prosecutions for the Crown
Robertson O’Gorman Solicitors for the defendant Bakunowich
Potts Lawyers for the defendant Dalgleish

Introduction

These reasons (I expressly refrain from calling them a ruling) concern the proper procedure to be followed in fact finding on sentencing under s 132C of the Evidence Act 1977. It is necessary to record some reasons because I am of the view that the procedure contended for by all parties, prosecution and two defendants, as being that which must be followed, is not what is required at all.
Each of the defendants have pleaded guilty to: one count of producing a dangerous drug in excess of 500 grams; one count of possessing a dangerous drug in excess of 500 grams; and one count of possessing things used in connection with producing a dangerous drug. The allocutus has been administered and a sentencing proceeding has commenced.
In respect of the possession charge, the prosecution alleges that the possession was for an illegal commercial purpose and that this fact may be inferred from a number of other facts. The defendants contest the allegation of commerciality.
In those circumstances, s 132C of the Evidence Act applies. It provides:
“132C Fact finding on sentencing
(1)This section applies to any sentencing procedure in a criminal proceeding.
(2) The sentencing judge or…

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 Bakunowich & Dalgleish

Details

AGLC: R v Bakunowich & Dalgleish [2021] QDC 346
Case: [2021] QDC 346
Decision Date: 15 October 2021

CaseChat Overview and Summary

The case of R v Bakunowich & Dalgleish involved the defendants being sentenced following their convictions. The nature of the dispute centred around the sentencing process, specifically the fact-finding aspect that occurs during sentencing. This matter was brought before the court to determine the appropriate legal procedures and whether any procedural errors had occurred that could impact the fairness of the sentencing process. The court addressed critical legal issues regarding the obligations of the judge during the sentencing phase, particularly in relation to providing indications about findings adverse to the defendant before the defendant decides whether to present evidence on the issue. The central question was whether the judge's failure to provide such indications prior to the defendant choosing to go into evidence on the issue constituted a reversal of the onus of proof or a denial of natural justice.

The court considered whether the process followed during sentencing adhered to legal standards. It examined whether the judge was required to give an indication of whether a finding adverse to the defendant was capable of being made on the evidence presented by the prosecution alone, prior to the defendant deciding whether to enter evidence on the issue. The court also assessed whether the failure of the judge to provide this indication before the defendant made their decision constituted a breach of natural justice or an unfair reversal of the onus of proof. The court's analysis focused on ensuring that the sentencing process was fair and that the defendants' rights were not compromised.

In reaching its decision, the court concluded that the judge's failure to provide an indication of whether an adverse finding could be made on the prosecution's evidence before the defendant chose to present evidence did not constitute a breach of natural justice or a reversal of the onus of proof. However, the court determined that the sentencing process needed to be revisited to ensure fairness and compliance with legal standards. Consequently, the sentencing of the defendants was adjourned to allow for these considerations to be addressed. The final orders were that the sentencing be adjourned to 14 December 2021.

Orders

Orders of the court

The sentencing of the defendants be adjourned to 14 December 2021

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citations

AGLC Citation

R v Bakunowich & Dalgleish [2021] QDC 346

Cases citing this decision · 0 of 0 shown

No citing cases yet.

Cases cited in this decision · 13 of 13 shown

R v RBE
[2021] QCA 146 Para 9

…pon it on the basis of the evidence so far called would be to reverse the onus or to deny natural justice. [17]Morrison and McMurdo JJA agreeing. [18][2021] QCA 146 at [24].…
Strbak v The Queen
[2020] HCA 10 Para 8

…st affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal.”[4] [3] Strbak v The Queen (2020) 267 CLR 494 at [32] to [33] per Kiefel CJ, Bell, Keane, Nettle and Edelman JJ. [4]Supra at 362.…
R v Gerhardt
[2019] QCA 283 Para 29

…cular facts. None of this prevents either party electing to argue the truth of or adducing evidence about a challenged factual allegation .” [9][2019] QCA 283, at [53].…
R v Field
[2017] QCA 188 Para 7

…hat govern a judge’s acceptance or rejection of disputed facts apply including that the judge’s decision must be justified by reasons.” [16][2017] QCA 188 at [48].…
Filippou v The Queen
[2015] HCA 29

…is a denial of natural justice. Evidence Act s 132C Penalties and Sentences Act 1992 s 15(1) Briginshaw v Briginshaw (1938) 60 CLR 336 Filippou v The Queen (2015) 256 CLR 47 G v H (1994) 181 CLR 387 Jones v Dunkel (1959) 101 CLR 298 May v O’Sullivan (1955) 92 CLR 654 R v Field [2017] QCA 188 R v Gerhardt [2019] QCA 283 R v R…
R v Olbrich
[1999] HCA 54 Para 30

…ling of evidence would be required only if the asserted fact was controverted or if the judge was not prepared to act on the assertion).” [10](1999) 199 CLR 270 at 281 [25] per Gleeson CJ, Gaudron, Hayne and Callinan JJ.…
G v H
[1994] HCA 48 Para 11

…from other facts proven or not in contest.[6] [5]Outline of Submissions on behalf of the defendant Bakunowich paragraph 7. [6]Compare G v H (1994) 181 CLR 387 at 390 per Brennan and McHugh JJ.…
Jones v Dunkel
[1959] HCA 9

…nd Sentences Act 1992 s 15(1) Briginshaw v Briginshaw (1938) 60 CLR 336 Filippou v The Queen (2015) 256 CLR 47 G v H (1994) 181 CLR 387 Jones v Dunkel (1959) 101 CLR 298 May v O’Sullivan (1955) 92 CLR 654 R v Field [2017] QCA 188 R v Gerhardt [2019] QCA 283 R v RBE [2021] QCA 146 Strbak v The Queen (2020) 267 CLR 494 Th…
Jones v Dunkel
[1959] HCA 8 Para 4

…f its onus of proof, is an aspect of the accusatorial nature of the proceeding and not of the standard of proof.” [12](2020) 267 CLR 494. [13](1959) 101 CLR 298 at 320-321 per Windeyer J. [14]Kiefel CJ, Bell, Keane, Nettle and Edelman JJ at 508 [31].…
May v O'Sullivan
[1955] HCA 38 Para 27

…process, whether, as a matter of law, on the evidence as it then stands, the defendant could lawfully be convicted.[8] [8]Compare May v O’Sullivan (1955) 92 CLR 654 at 658 per Dixon CJ, Webb, Fullagar, Kitto and Taylor JJ.…
Briginshaw v Briginshaw
[1938] HCA 36 Para 7

…conveyed to the parties so as to allow a decision to be made as to whether further evidence ought be adduced by the defendants.”[2] [1] Briginshaw v Briginshaw (1938) 60 CLR 336. [2]Exhibit 2, joint submissions for the parties, paragraph 29, provided to the court following the hearing on 4 June 2021.…
Briginshaw v Briginshaw
[1938] HCA 34 Para 7

…so as to allow a decision to be made as to whether further evidence ought be adduced by the defendants.”[2] [1] Briginshaw v Briginshaw (1938) 60 CLR 336. [2]Exhibit 2, joint submissions for the parties, paragraph 29, provided to the court following the hearing on 4 June 2021.…
The Queen v Olbrich
[1999] HCA 5418

…n (1955) 92 CLR 654 R v Field [2017] QCA 188 R v Gerhardt [2019] QCA 283 R v RBE [2021] QCA 146 Strbak v The Queen (2020) 267 CLR 494 The Queen v Olbrich (1999) 199 CLR 270 COUNSEL: Mr C Wallis for the Crown Ms D Holliday QC for the defendant Bakunowich Mr J R Jones for the defendant Dalgleish SOLICITORS: Office of the Direc…

Legislation cited in this decision · 3

Penalties and Sentences Act 1992 (Qld)
15(1) 2 mentions (from Para 4)
Evidence Act 1977 (Qld)
1 mention (from Para 1)
Youth Justice Act 1992 (Qld)
1 mention (from Para 4)

CITATION:	R v Bakunowich & Dalgleish [2021] QDC 346
PARTIES:	THE QUEEN v STEPHEN BRENDAN BAKUNOWICH & KELLIE JEAN DALGLEISH
FILE NO/S:	32 of 2021
DIVISION:	Criminal
PROCEEDING:	Sentence
ORIGINATING COURT:	Ipswich District Court
DELIVERED ON:	15 October 2021
DELIVERED AT:	Ipswich
HEARING DATE:	4 June 2021
JUDGE:	Horneman-Wren SC DCJ
ORDER:	The sentencing of the defendants be adjourned to 14 December 2021
CATCHWORDS: LEGISLATION: CASES:	CRIMINAL LAW – SENTENCE – fact finding on sentencing – process to be followed – course of evidence – whether judge must give indication of whether finding of a fact adverse to defendant is capable of being made on evidence called only by prosecution prior to defendant choosing whether to go into evidence on issue – whether failure by judge to give indication before defendant decides whether to go into evidence on issue is a reversal of onus of proof – whether failure by judge to give indication before defendant decides whether to go into evidence is a denial of natural justice. Evidence Act s 132C Penalties and Sentences Act 1992 s 15(1) Briginshaw v Briginshaw (1938) 60 CLR 336 Filippou v The Queen (2015) 256 CLR 47 G v H (1994) 181 CLR 387 Jones v Dunkel (1959) 101 CLR 298 May v O’Sullivan (1955) 92 CLR 654 R v Field [2017] QCA 188 R v Gerhardt [2019] QCA 283 R v RBE [2021] QCA 146 Strbak v The Queen (2020) 267 CLR 494 The Queen v Olbrich (1999) 199 CLR 270
COUNSEL:	Mr C Wallis for the Crown Ms D Holliday QC for the defendant Bakunowich Mr J R Jones for the defendant Dalgleish
SOLICITORS:	Office of the Director of Public Prosecutions for the Crown Robertson O’Gorman Solicitors for the defendant Bakunowich Potts Lawyers for the defendant Dalgleish