Talukder v Dunbar

Case [2009] ACTSC 42


SHAMSUDDIN TALUKDER v JARRYD DUNBAR
[2009] ACTSC 42 (16 April 2009)

CRIMINAL LAW – assault – domestic violence – sentencing – non-conviction order – s 17 Crimes (Sentencing) Act 2005 (ACT)

CRIMINAL LAW – sentencing – admissibility of evidence – s 4(2) Evidence Act 1995 (Cth)

CRIMINAL LAW – sentencing – relevant considerations – s 33 Crimes (Sentencing) Act 2005 (ACT) – reasons for decision – use of victim impact statements

JUDICIAL REVIEW – refusal to adjourn to receive further evidence – denial of natural justice

Crimes (Sentencing Administration) Act 2005 (ACT)
Crimes Act 1900 (ACT), ss 19B, 26, 556A
Evidence Act 1995 (Cth) ss 4(1), 4(2), 190
Criminal Law (Sentencing) Act 1988 (SA), s 6
Sentencing Act 1995 (WA), s 15
Sentencing Act (NT), s 104
Sentencing Act 1997 (Tas), s 81
Crimes (Sentencing) Act 2005 (ACT), ss 17, 17(3)(a)-(c), 17(4), 33, 33(1)(o), 33(1)(r), 36(3)(c), 35(1)(b), 55(3)(r)
Magistrates Court Act 1930 (ACT), s 214(4)
Crimes Act 1914 (Cth), s 19B, 19B(1)(b)(i)-(iii)

Weinberg M, “The Consequences of Failure to Object to Inadmissible Evidence in Criminal Cases” (1978) 11 MULR 408
Ashworth A “Victim Impact Statements and Sentencing” [1993] Crim LR 498
Chalmers J, Duff P and Leverick F “Victim Impact Statements:  Can Work, Do Work (For Those Who Bother to Make Them)” [2007] Crim LR 360
Flatman G and Bogaric M, “The Victim and the Prosecutor: the Relevance of Victims in Prosecution Decision Making” (2001) 6 Deakin L Rev 238

Yassin v Williams [2007] WASC 8
R v Bourchas (2002) 133 A Crim R 413
R v Reid [1999] NSWCCA 258
R v Meier (unreported, NSWCCA, Gleeson CJ, Dowd and Hidden JJ, 21 May 1996)
R v Storey [1998] 1 VR 359
R v Olbrich (1999) 199 CLR 270
R v Capobianco [1978] 20 ACTR 29
R v Bell [2005] ACTSC 123
Hamilton v Littlejohn [2006] TASSC 109
Bennett v Coombs [2007] TASSC 53
Sullivan v Department of Transport (1978) 20 ALR 323
Director of Public Prosecutions (NSW) v Ozakca and Anor (2006) 68 NSWLR 325
Cropper v Smith (1884) 26 Ch D 700
Cross v Police [2001] SASC 47
Acuthan v Coates (1986) 6 NSWLR 472
Mifsud v Campbell (1991) 21 NSWLR 725
Szewczuk v Police [2001] SASC 223
House v The King (1936) 55 CLR 499
Lowndes v The Queen (1999) 195 CLR 665
Carpenter v Purcell [2008] ACTSC 34
Kent v Arley [2007] ACTSC 66
Federal Commissioner of Taxation v Baffsky (2001) 122 A Crim R 568
Lumby v Cooper [2008] ACTSC 53

ON APPEAL FROM THE ACT MAGISTRATES COURT

No. SCA 112 of 2008

Judge:             Refshauge J
Supreme Court of the ACT

Date:              16 April 2009

IN THE SUPREME COURT OF THE     )
  )          No. SCA 112 of 2008
AUSTRALIAN CAPITAL TERRITORY )          

ON APPEAL FROM THE ACT MAGISTRATES COURT

BETWEEN:SHAMSUDDIN TALUKDER

Appellant

AND:JARRYD DUNBAR

Respondent

ORDER

Judge:  Refshauge J
Date:  16 April 2009
Place:  Canberra

THE COURT ORDERS THAT:

  1. The appeal be allowed.

  1. The sentence of the Learned Magistrate imposed on 19 November…

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Talukder v Dunbar [2009] ACTSC 42
Case
[2009] ACTSC 42
Decision Date

CaseChat Overview and Summary

The case of Talukder v Dunbar involved a sentencing matter where Talukder, the defendant, appealed against the decision of the lower court. Talukder was charged with assault related to domestic violence. The dispute centred on the appropriateness of the sentence imposed and the admissibility of certain evidence presented during the sentencing process. The Australian Capital Territory Court of Appeal was tasked with reviewing the lower court's decision and the legal framework applied.

The primary legal issues that the court had to address were whether the lower court erred in its application of the relevant statutory provisions, specifically sections 17, 33, and 4(2) of the Crimes (Sentencing) Act 2005 (ACT) and the Evidence Act 1995 (Cth). The court had to determine if the lower court appropriately considered the evidence, including victim impact statements, and whether the decision-making process adhered to the principles of natural justice. Additionally, the court considered whether the refusal to adjourn to receive further evidence was justified.

In its reasoning, the court found that the lower court did not properly consider the evidence in line with the statutory requirements. The court held that the sentencing judge failed to sufficiently address the factors mandated by section 33 of the Crimes (Sentencing) Act 2005 (ACT), particularly the need to consider the impact on the victim. The court also determined that the evidence presented, including victim impact statements, was relevant and should have been considered. Moreover, the refusal to adjourn to receive further evidence was seen as a breach of natural justice principles. Consequently, the court allowed the appeal and remitted the matter back to the lower court for re-sentencing.

The final order of the court was that the appeal be allowed, and the case was remitted to the lower court for re-sentencing in light of the court's findings. This decision underscores the importance of thorough consideration of statutory requirements and the principles of natural justice in sentencing proceedings.

Orders

Orders of the court

1.

The appeal be allowed.

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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