DISTRICT COURT OF QUEENSLAND
CITATION:
R v Bakunowich & Dalgleish [2021] QDC 346
PARTIES:
THE QUEEN
v
STEPHEN BRENDAN BAKUNOWICH &
KELLIE JEAN DALGLEISHFILE 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
Jones v Dunkel (1959) 101 CLR 298
May v O’Sullivan (1955) 92 CLR 654
COUNSEL:
Mr C Wallis for the Crown
Ms D Holliday QC for the defendant BakunowichMr 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…
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- R v Bakunowich & Dalgleish [2021] QDC 346
- Case
- [2021] QDC 346
- Decision Date
CaseChat Overview and Summary
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
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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