R v Ganeshalingham - [2018] QCA 34

[2018] QCA 34

COURT OF APPEAL

SOFRONOFF P
PHILIPPIDES JA
BODDICE J

CA No 256 of 2017
DC No 489 of 2013

THE QUEEN

GANESHALINGHAM, Elango Applicant

BRISBANE

MONDAY, 12 MARCH 2018

JUDGMENT

SOFRONOFF P: The applicant, Elango Ganeshalingham, was born in Sri Lanka in 1980. He left school at the age of 10 and began to work alongside his father on their farm. Later, his father opened a shop and the boy worked there. In about 2006, members of the Liberation Tigers of Tamil Eelam, more often called the Tamil Tigers, kidnapped him and brought him to one of their training camps. The Tamil Tigers were, at the time, engaged in an insurrection in the course of which they engaged in terrorist acts against the government of Sri Lanka. He was forced to work for this group for two years and was then released. This may have coincided with the end of the conflict in 2009.

Mr Ganeshalingham was then imprisoned by the Sri Lankan Government. He says that he was interrogated, tortured, beaten and starved. He was released after the Red Cross intervened in his case. However, according to Mr Ganeshalingham, such releases were often temporary, and prisoners who had been released were frequently re-arrested after impartial scrutiny by international observers. He says he was frightened for his life and arranged for passage on a boat to Australia. He is the only son of his parents, who are alive. He has two sisters.

His voyage ended on Christmas Island in February 2012, where he was detained for the third time in his life, this time by the Australian Government. The Australian Government has held him in detention for the last six years. From the beginning of 2012, Mr Ganeshalingham was held at the Scherger Immigration Detention Centre in Weipa, on Cape York. During this period, he applied for protection in accordance with Australia’s obligations under the Convention Relating to the Status of Refugees. Under that Convention, to which Australia is a party, a contracting state must, among other things, issue identity papers and travel documents to a refugee. A refugee is defined as follows:

“…a person who, owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.”

A delegate of the Minister for Immigration found that Mr Ganeshalingham, in fact, satisfied that definition. That is to say the Minister’s delegate found that Mr Ganeshalingham was a genuine refugee.

He was diagnosed as suffering from post-traumatic stress disorder, with flashbacks, nightmares and high anxiety levels. He had a feeling of helplessness. His sleep was…

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 Ganeshalingham

Details

AGLC: R v Ganeshalingham [2018] QCA 34
Case: [2018] QCA 34
Decision Date: 12 MARCH 2018

CaseChat Overview and Summary

In this case, the applicant, Elango Ganeshalingham, sought an extension of time to appeal against his sentence for a serious assault against a nurse while she was performing her duties. The applicant had pleaded guilty to the charge and was sentenced to a wholly suspended sentence of imprisonment. The Court of Appeal considered whether the sentencing judge had erred in imposing a sentence of imprisonment, despite the applicant's unique personal circumstances and the lack of precedent for a custodial sentence in similar cases.

The legal issues before the Court were whether the sentencing judge had erred in imposing a sentence of imprisonment and whether the applicant's delay in seeking leave to appeal could be excused. The Court found that the sentencing judge had indeed erred in imposing a sentence of imprisonment, as the applicant's actions were not driven by a desire to hurt or obtain sexual gratification, but rather by an emotional need for comfort due to his post-traumatic stress disorder and a mistaken belief that his actions would not be inappropriate. The Court also found that the applicant's delay in seeking leave to appeal could be excused due to his lack of knowledge of English and his incarceration by immigration authorities.

The Court of Appeal allowed the applicant's appeal against sentence and set aside the sentence imposed by the District Court. Instead, the Court ordered that the applicant be convicted of the offence, that no conviction be recorded, and that the applicant be released absolutely. The Court found that the circumstances of the case justified the exercise of the discretion under section 12 of the Penalties and Sentences Act 1992 not to record a conviction and to release the applicant without the need for a recognisance to be of good behaviour.

Orders