R v Kulatunge - [2023] QCA 252

SUPREME COURT OF QUEENSLAND

CITATION:

R v Kulatunge [2023] QCA 252

PARTIES:

R
v
KULATUNGE, Hashanth
(applicant)

FILE NO/S:

CA No 27 of 2023
SC No 798 of 2020

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

Supreme Court at Brisbane – Date of Sentence: 8 February 2023 (Jackson J)

DELIVERED ON:

12 December 2023

DELIVERED AT:

Brisbane

HEARING DATE:

23 November 2023

JUDGES:

Morrison and Bond JJA and Crow J

ORDER:

Leave to appeal against sentence is refused.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – JUDGE ACTED ON WRONG PRINCIPLE – where the applicant was charged with one count of importing a commercial quantity, border controlled drug and one count of attempting to possess a commercial quantity, border controlled drug – where the applicant pleaded guilty to the possession charge but pleaded not guilty to the importation charge – where the jury were unable to reach a verdict on the importation charge and the prosecution elected not to prosecute further – where the applicant was sentenced to 12 years’ imprisonment with a non-parole period of seven years and two months – where the applicant argues the sentence is affected by two errors of principle – where the applicant argues there was a breach of the accusatorial process – whether the primary judge made a specific error

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – PARITY BETWEEN CO-OFFENDERS – where the applicant was sentenced to 12 years’ imprisonment with a non-parole period of seven years and two months – where the applicant’s co-offender was sentenced to eleven years’ imprisonment with a non-parole period of seven years and two months - where the applicant argues a lack of parity with the sentence of his co-offender – whether the primary judge erred in applying the breach of parity principle on sentencing the applicant

Evidence Act 1977 (Qld), s 132C, s 132C(5)(d)

Cheung v The Queen (2001) 209 CLR 1; [2001] HCA 67, considered
Green v The Queen (2011) 244 CLR 462; [2011] HCA 49, applied
R v Handlen[2015] QCA 292, cited
R v Ocampo Alvarez[2018] QCA 162, cited
R v RBE (2021) 8 QR 358; [2021] QCA 146, applied
Strbak v The Queen (2020) 267 CLR 494; [2020] HCA 10, applied

COUNSEL:

S C Holt KC for the applicant
C O’Connor and J J Underwood for the respondent

SOLICITORS:

Kadadi & Co Lawyers for the applicant
Director of Public Prosecutions (Commonwealth) for the respondent

THE COURT: The applicant, Mr Kulatunge, and his co-accused Mr Dumenil were charged with one count of importing a commercial quantity of a border-controlled drug and one count of attempting to possess a commercial quantity of a border-controlled drug.
Mr Dumenil pled not guilty to both counts. Mr Kulatunge pled guilty to the offence of attempting to possess a commercial quantity of an unlawfully imported a border-controlled…

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 Kulatunge

Details

AGLC: R v Kulatunge [2023] QCA 252
Case: [2023] QCA 252
Decision Date: 12 December 2023

CaseChat Overview and Summary

The applicant in this case appealed against his sentence, arguing that the primary judge erred in two significant respects. The applicant was charged with importing a commercial quantity of a border-controlled drug and attempting to possess the same drug. He pleaded guilty to the possession charge but contested the importation charge, which ended in a hung jury, leading the prosecution to drop the matter. He was subsequently sentenced to 12 years’ imprisonment with a non-parole period of seven years and two months. The applicant contended that the sentence was flawed due to two alleged errors of principle. He argued that there was a breach of the accusatorial process and that there was a lack of parity with the sentence of his co-offender, who received a sentence of eleven years with a non-parole period of seven years and two months.

The court considered whether the primary judge had indeed erred in these respects. The first issue involved whether the primary judge correctly applied the principles relating to the accusatorial process. The applicant suggested that there was a procedural flaw affecting the fairness of the trial. The second issue was whether the judge had correctly applied the principle of parity in sentencing between co-offenders. The applicant claimed that his sentence should reflect a closer alignment with that of his co-offender. The court assessed these arguments in light of the applicable legal principles and the specific circumstances of the case.

The court found that the primary judge had not erred in the manner alleged by the applicant. In relation to the accusatorial process, the court determined that the judge had correctly followed the legal procedures, and thus there was no breach that would warrant interference with the sentence. Regarding the parity issue, the court concluded that the judge had appropriately considered the factors relevant to sentencing and that the sentences were proportionate given the different roles and circumstances of the co-offenders. Therefore, the court held that there was no basis to grant leave to appeal against the sentence.

Leave to appeal against sentence is refused.

Orders

Orders of the court

Leave to appeal against sentence is refused.

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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CITATION:	R v Kulatunge [2023] QCA 252
PARTIES:	R v KULATUNGE, Hashanth (applicant)
FILE NO/S:	CA No 27 of 2023 SC No 798 of 2020
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	Supreme Court at Brisbane – Date of Sentence: 8 February 2023 (Jackson J)
DELIVERED ON:	12 December 2023
DELIVERED AT:	Brisbane
HEARING DATE:	23 November 2023
JUDGES:	Morrison and Bond JJA and Crow J
ORDER:	Leave to appeal against sentence is refused.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – JUDGE ACTED ON WRONG PRINCIPLE – where the applicant was charged with one count of importing a commercial quantity, border controlled drug and one count of attempting to possess a commercial quantity, border controlled drug – where the applicant pleaded guilty to the possession charge but pleaded not guilty to the importation charge – where the jury were unable to reach a verdict on the importation charge and the prosecution elected not to prosecute further – where the applicant was sentenced to 12 years’ imprisonment with a non-parole period of seven years and two months – where the applicant argues the sentence is affected by two errors of principle – where the applicant argues there was a breach of the accusatorial process – whether the primary judge made a specific error CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – PARITY BETWEEN CO-OFFENDERS – where the applicant was sentenced to 12 years’ imprisonment with a non-parole period of seven years and two months – where the applicant’s co-offender was sentenced to eleven years’ imprisonment with a non-parole period of seven years and two months - where the applicant argues a lack of parity with the sentence of his co-offender – whether the primary judge erred in applying the breach of parity principle on sentencing the applicant Evidence Act 1977 (Qld), s 132C, s 132C(5)(d) Cheung v The Queen (2001) 209 CLR 1; [2001] HCA 67, considered Green v The Queen (2011) 244 CLR 462; [2011] HCA 49, applied R v Handlen[2015] QCA 292, cited R v Ocampo Alvarez[2018] QCA 162, cited R v RBE (2021) 8 QR 358; [2021] QCA 146, applied Strbak v The Queen (2020) 267 CLR 494; [2020] HCA 10, applied
COUNSEL:	S C Holt KC for the applicant C O’Connor and J J Underwood for the respondent
SOLICITORS:	Kadadi & Co Lawyers for the applicant Director of Public Prosecutions (Commonwealth) for the respondent