R v Bakunowich & Dalgleish[2021] QDC 346

DISTRICT COURT OF QUEENSLAND

Introduction

1. [1]
   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.
2. [2]
   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.
3. [3]
   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.
4. [4]
   In those circumstances, s 132C of the Evidence Act applies. It provides:

“132C Fact finding on sentencing

5. [5]
   The other relevant statutory provision is s 15(1) of the Penalties and Sentences Act 1992 which provides:

“15 Information or submissions for sentence

1. In imposing a sentence on an offender, a court may receive any information, including a report mentioned in the Corrective Services Act, section 344, or a sentencing submission made by a party to the proceedings, that it considers appropriate to enable it to impose the proper sentence.”

6. [6]
   What the parties, precisely, contend is the proper procedure which is to be followed is, for reasons I shall come to, difficult to discern. Their submissions, including those which they jointly made in writing subsequent to the hearing, are contradictory and inconsistent as a matter of legal principle.
7. [7]
   At a high level of abstraction they may be summarised as follows:

1. It is for the prosecution to prove the allegation of fact that the drugs were possessed for an illegal commercial purpose;
2. The degree of satisfaction required would be the highest end of the Briginshaw scale^[1] given the seriousness of the consequences of a finding of an illegal commercial purpose;
3. The approach which the court should adopt in making a determination of the contested fact of commerciality is:

“(a) the evidence adduced before the court and the submissions made on 4 June 2021 in combination with the matters set out in paragraph 1 to 28 of the joint submissions, the learned sentencing Judge should determine whether he is satisfied to the requisite standard that the defendants’ production and possession of cannabis was for a ‘commercial purpose’. The satisfaction needs to be to a higher degree approaching the criminal standard.

(b)  if his Honour is not satisfied the Crown has proved the allegation of ‘commercial purpose’ then the sentencing hearing moves to the provision of antecedents and the passing of sentence.

(c) If his Honour is satisfied, on the state of the evidence presently before the Court, to the requisite standard, then that should be 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]

8. [8]
   The contentions set out at 1 and 2 above must readily be accepted. As to the onus, there is no question that the onus remains on the prosecution to prove facts it asserts for the purposes of having the offender sentenced which go beyond those facts admitted by a guilty plea.^[3] As to the standard of proof, s 132C(4) is a statutory prescription of part of the principle in Briginshaw that:

“The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are questions which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal.”^[4]

9. [9]
   As to the approach to be adopted in finding facts under s 132C, I am not of the view that the approach set out at 3 above, as jointly contended for by the parties, is correct. Although the parties now jointly submit that such is the approach which “should be adopted”, in earlier written submissions and in oral submissions Ms Holliday QC for Mr Bakunowich put the matter more highly.
10. [10]
    Ms Holliday’s submission (in which Mr Jones of counsel for Ms Dalgleish joined and with which Mr Wallis for the prosecution took no particular issue) was that a failure to adopt that approach would be to reverse the onus of proof and to deny the defendants natural justice. Neither contention is correct. None of the many cases to which the parties referred the court provide authority for them. Before turning to explain why this is so, something should be said of the imprecision in even the identification of the decision to be made by the court at this time.
11. [11]
    In Ms Holliday QC’s initial submissions, she contended that in order to avoid a reversal of the onus of proof the court would determine, as a preliminary point, whether on the basis of the material before the court there was an “insufficient evidential basis for the Crown to meaningfully allege that the inference should be drawn that the possession had an illegal commercial purpose”.^[5] The mere recitation of the issue in those terms is sufficient to demonstrate the unsoundness of the proposition. In its terms, it requires a judicial determination of the sufficiency of an ‘evidential basis’ for a meaningful allegation. Furthermore, it conflates the allegation with the method of its proof. The Crown does not allege an inference should be drawn. It alleges a fact; viz possession for a commercial purpose. It then invites the court to find that fact by a process of inferential reasoning from other facts proven or not in contest.^[6]
12. [12]
    The imprecision in the identification of the decision to be made is further demonstrated by careful consideration of the joint submissions as to the approach to be adopted.
13. [13]
    Subparagraph 3(a) urges the determination of the alleged fact to the requisite standard of satisfaction. That requires a conclusion to be reached as to the factual issue on the material then before the court, either by way of evidence adduced or matters agreed or not challenged. If that conclusion was that the fact had not been proven to the requisite standard, then what is urged as subparagraph 3(b) is entirely appropriate.

14. [14]
    However, subparagraph 3(c) urges that the court would follow a course which may result in its determination of fact being rendered intermediate, depending upon whether further evidence is adduced by a defendant and, if so, a further consideration by the court, at a later stage, of all the evidence then before the court.
15. [15]
    To confuse the suggested approach even further, the joint submissions, by way of a qualifying footnote to the submission that if satisfied to the requisite standard the court should convey that to the parties, say:

“Procedural fairness requirements would be invoked at a ‘lesser standard’ that being the point at which the learned sentencing judge determines that he could (also expressed as ‘inclined to’ or ‘minded to’) sentence upon a basis of commerciality”.^[7]

16. [16]
    That qualification suggests that contrary to the court determining that it is satisfied of the fact to the requisite standard and then informing the parties of that, the court would at some earlier time determine that it could be satisfied of the fact and inform the parties of that.  The qualification is inconsistent with the primary submission.  Nothing is said as to when the court must first consider the matter applying the “lesser standard”.  It should also be observed that the qualified position, determination that the court could be satisfied rather than it is so satisfied, is more consistent with the oral submissions made for the parties and Ms Holliday’s outline of submissions.
17. [17]
    Apart from these difficulties in distilling from the submissions the precise determination the court is being asked to make, there are further difficulties arising from material upon which the court is being asked to make it, and from what is said to be the use to which that material could be put.
18. [18]
    In his submissions, the learned Crown Prosecutor identified a number of things which the Crown relied upon from which it submitted the fact that commerciality could be inferred:

• The quantity of the drugs found at the defendants’ property being the number of plants and the yield from them;
• The recording and documentation of fertilizers and growing instructions;
• The lack of indicia of either defendant being themselves users of cannabis;
• The location of cash totalling $81,190.00; and
• The unauthorised possession of two firearms

Some photographs depicting some of those matters relied upon were tendered as evidence.

19. [19]
    In the course of the hearing the court was informed of a number of things which were not in contest.  Those matters appeared to evolve throughout the hearing.  In the end, the parties undertook to prepare a document in which all the agreed matters would be set out.  It was provided at a later date. That document is now Exhibit 2.  Those matters include that the defendants had previously conducted a legitimate horticultural business and that at the relevant time were conducting a legitimate business of importation and sale of knives. 
20. [20]
    The defendant Bakunowich went into evidence.  Ms Holliday QC, by leave of the court, read and filed an affidavit of her instructing solicitor.  The affidavit exhibited material relevant to the legitimate knife business carried on by the defendants, including an analysis of cash transactions.  It also exhibited the 2019 tax return for Ms Dalgleish and a statement by the accountant who prepared the return.  The accountant’s statement includes information about: the extent of cash sales in the knife business; instructions received from the defendants relevant to the preparation of the tax return; and the preparation of the return itself.
21. [21]
    The parties urged the court to follow what I consider to be an entirely artificial approach to the consideration of this material.  In the course of the hearing, Ms Holliday QC submitted that, notwithstanding having adduced evidence by way of the affidavit, that evidence was not to be considered, in the first instance, in determining whether, on all the evidence before the court, the Crown had proved commerciality.  Rather, it was submitted that the court would consider that evidence, initially, only for the limited purpose of determining whether the evidence adduced by the Crown was capable of supporting an inference of commerciality.  Indeed, at one point, Ms Holliday’s submissions as to procedural fairness were that the court must give an indication as to whether it might make a finding of commerciality not before a defendant chose whether to go into evidence at all, her client having already gone into evidence by way of the affidavit, but before choosing whether the defendant himself would give evidence.  In my opinion, this is entirely misconceived.
22. [22]
    The artificiality of the approach advocated for by the parties is further demonstrated by the joint submission contained in paragraph 15 of Exhibit 2.  It reads:

“At all times the Crown bears the onus of establishing commerciality on the whole of the evidence, to a high degree of satisfaction.  The affidavit material need only be considered if it is determined, on the Crown case alone, that the cash, or any part thereof, located will be used to support an inference as to commerciality.  If the cash located is not to be used in the process of reasoning towards commerciality the following is irrelevant.”

23. [23]
    At the one time, that submission, correctly, identifies the burden and standard of proof and that the finding is to be made on the whole of the evidence, but goes on to say that the evidence must be considered piecemeal.  That is, part of the evidence, the affidavit, is not to be considered, unless the court considers that one sub-part of the Crown evidence, the cash, “will be used to support an inference as to commerciality”.  Such an approach would require the court to consider one part of the evidence separately from all the other evidence to determine whether, on its own, it might support an inference of commerciality.  Then to consider whether, together with the other evidence adduced by the Crown, it might support such an inference.  If so, then to consider whether, together with all the evidence, including that adduced by a defendant to that point, the inference might be drawn.  If so, then to give the defendants the opportunity to adduce further evidence upon which (together with all the other evidence) the question will ultimately be determined.
24. [24]
    In my view, the fact-finding process undertaken by the court under s 132C of the Evidence Act is one whereby the court determines whether the non-admitted or challenged fact has been proven by the party asserting that fact to the requisite standard.  However, that the party asserting the fact must prove that fact says nothing about whether the other party may chose to adduce evidence relevant to whether that fact should be found.  Whether a party chooses to do so is a forensic decision to be made by that party; just as it is a forensic decision whether to go into evidence in relation to any fact in issue in a criminal proceeding. 
25. [25]
    The decision to go into evidence does not amount to an assumption of the burden of proving the fact.  If the court were to require the party contesting the fact to go into evidence, that would amount to a reversal of the onus of proof.  So too if the court was to consider the absence of evidence from the party contesting the fact as part of its process of reasoning to finding the fact proved.
26. [26]
    Procedural fairness does not require the court to indicate, on some preliminary basis, that it is inclined to find the fact on the evidence led in its proof by the asserting party in order to give the contesting party the opportunity to consider adducing evidence.  The opportunity to adduce evidence is available to the contesting party from the moment that the fact is not admitted or put into contest by that party.  If the court were to deny the contesting party the opportunity to adduce evidence, that would be a denial of natural justice.  But there can be no denial of natural justice where a party simply chooses not to adduce evidence.
27. [27]
    Section 132C merely prescribes the process by which contested facts on sentencing are to be found.  The process remains, from beginning to end, one of fact-finding.  There is no antecedent step whereby the court is to determine whether evidence is capable of supporting the finding of fact.  There is no stage in the process equivalent to a no case submission where the court considers, separately to the fact-finding process, whether, as a matter of law, on the evidence as it then stands, the defendant could lawfully be convicted.^[8]
28. [28]
    Careful consideration of the cases as referred to by the parties reveals no support for the contention that a failure to follow their suggested approach would reverse the onus of proof and/or deny the defendant’s natural justice. 
29. [29]
    In R v Gerhardt,^[9] the Court of Appeal observed:

“One party’s challenge to the factual allegation of another sometimes results in one or the other adducing oral evidence on sentence.  However, many factual disputes on sentence do not have that consequence because they are of such minor consequence to sentence.  Many parties try to reach agreement on factual allegations about the offending to be put before the court, whether orally or in writing, in the hope of avoiding distracting or unexpected arguments about matters of minor consequence to sentence.  To this pragmatic end, parties to sentence proceedings sometimes negotiate some aspects of the factual allegations to be placed before the court.  This process may result in the prosecution foregoing or pressing reliance upon particular facts just as it may result in the defence foregoing or pressing reliance upon particular facts.  None of this prevents either party electing to argue the truth of or adducing evidence about a challenged factual allegation.”

30. [30]
    In The Queen v Olbrich,^[10] a plurality of the High Court of Australia observed:

“Much of the discussion of fact finding for the purposes of sentencing addresses questions of onus and standard of proof.  References to onus of proof in the context of sentencing would mislead if they were understood as suggesting that some general issue is joined between prosecution and offender in sentencing proceedings; there is no such joinder of issue.  Nonetheless, it may be accepted that if the prosecution seeks to have the sentencing judge take a matter into account in passing sentence it will be for the prosecution to bring that matter to the attention of the judge and, if necessary, call evidence about it.  Similarly, it will be for the offender who seeks to bring a matter to the attention of the judge to do so and, again, if necessary, call evidence about it.  (We say ‘if necessary’ because the calling of evidence would be required only if the asserted fact was controverted or if the judge was not prepared to act on the assertion).”

31. [31]
    Nothing said by their Honours there would result in a procedure whereby evidence would be called by the party asserting the fact and the court would then provide an indication whether, on that evidence, it was prepared to act on the assertion so as to provide the contesting party with the opportunity to call evidence.
32. [32]
    In Filippou v The Queen,^[11] another plurality of the High Court observed:

“Certainly, a sentencing judge must do his or her best to find the facts which determine the nature and gravity of the offending, including the facts which inform the offender’s moral culpability.  Even so, it is sometimes not possible for the judge to ascertain everything which is relevant, especially where an offender chooses not to offer any evidence on the plea.  Where that occurs, the judge must proceed on the basis of what is proved and leave to one side what is not proved to the requisite standard.”

33. [33]
    That does not establish that before an offender chooses not to offer any evidence, they must be given a preliminary indication by the judge as to whether a fact asserted against them is capable of being found on the state of the evidence led by the prosecution.
34. [34]
    Strbak v The Queen^[12] was a case about the drawing of a Jones v Dunkel^[13] adverse inference from the fact that an accused did not give evidence when finding facts on sentencing.  The plurality^[14] said:

“It is because a criminal trial is an accusatorial proceeding in which the prosecution bears the burden of proving the allegations it makes that, as a general rule, there can be no expectation that the accused will give evidence.  Absent such an expectation, no inference can be drawn from the choice not to do so.  It is also to be noted that the ‘companion rule’, that the accused cannot be compelled to assist the prosecution in the discharge of its onus of proof, is an aspect of the accusatorial nature of the proceeding and not of the standard of proof.”

35. [35]
    While an accused cannot be compelled to assist the prosecution in the discharge of its onus of proof and no inference can be drawn from an accused’s choice not to go into evidence, this passage says nothing of the circumstance where an accused chooses to go into evidence about a fact asserted against them.  Their Honours went on to observe:^[15]

“Nonetheless, where the prosecution seeks to have the court sentence on a factual basis that goes beyond the facts admitted by the plea, and which is disputed, it is incumbent on the prosecution to adduce evidence to establish that basis.  Absent contrary statutory provision, the prosecution is required to prove matters on which it relies that are adverse to the interests of the offender to the criminal standard.  The adoption of a lesser, civil standard of proof for facts in sentencing under s 132C of the Act says nothing as to the onus of proving a fact that is not admitted or disputed.”

36. [36]
    Again, nothing said in that passage suggests that the failure of the court to indicate whether or not it was inclined to find the asserted fact on the evidence adduced by the prosecution (or, in this case, the evidence adduced by the prosecution and so much of the evidence already adduced by the defendant before he sought the indication), would be to shift the onus to the defendant.
37. [37]
    In R v Field,^[16] Sofronoff P and Gotterson JA said:

“A sentencing judge is not obliged to accept assertions made from the bar table even if the prosecution leaves no evidence to the contrary and even if the prosecution is silent about the matter.  However, the judge’s inclination to reject such a matter of asserted fact must be made known to the offender and a reasonable opportunity must be offered to make good that what has only been asserted.  Even when evidence has been tendered to prove the contentious fact, a judge is not obliged by the statute to accept such proof.  However, in all cases, whether involving mere assertions of fact or involving evidence called to prove such assertion, the usual principles that govern a judge’s acceptance or rejection of disputed facts apply including that the judge’s decision must be justified by reasons.”

38. [38]
    As in Orlich the indication spoken of there is the inclination not to accept an asserted fact in the absence of evidence.  It is an indication provided to the party seeking to have the judge act on the basis of the asserted fact. It accords that party the opportunity to adduce evidence in support of finding the fact it asserts.
39. [39]
    This point was recently made by Burns J^[17] in R v RBE.^[18]  Again, neither Field nor RBE support the contention that a failure to indicate to the party against whom the fact is being asserted that the court is inclined to act upon it on the basis of the evidence so far called would be to reverse the onus or to deny natural justice.
40. [40]
    It is for those reasons that I rejected the parties submissions that the court is required to, or in the ordinary course even should, approach a fact finding exercise under s 132C of the Evidence Act 1977 in the manner identified in paragraph 29 of Exhibit 2. 
41. [41]
    Notwithstanding my conclusion in that regard, because the parties jointly, albeit erroneously in my opinion, urged the court to do so, at a further hearing on 3 September, I indicated that I do not consider the material before the court incapable of proving an illegal commercial purpose.  I emphasised then, as I do now, that this is not a finding, either final or intermediate, of an illegal commercial purpose. I said that I would publish reasons as to why I had concluded that the suggested approach was wrong. These are those reasons.
42. [42]
    I do not propose further to explain why I have come to that view which I have indicated on the evidence presently adduced before the court because, as the quoted passage from Field makes plain, the court’s reasons on findings of fact should be given at the time at which the finding of fact is ultimately made upon all the evidence.  At this time, the court is unaware of whether it yet has all the evidence before it relevant to the finding which it must ultimately make.