ON APPEAL FROM:
For File No               :  SJA 1060 of 2009
Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram  :MAGISTRATE J R PACKINGTON
Citation  :CI 16 of 2009
For File No               :  SJA 1061 of 2009
Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram  :MAGISTRATE J R PACKINGTON
Citation  :CI 15 of 2009
For File No               :  SJA 1062 of 2009
Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram  :MAGISTRATE J R PACKINGTON
Citation  :CI 14 of 2009

Catchwords:

Criminal law - Sentencing - Commonwealth offences - Escaping custody (immigration detention) - Whether imprisonment only option - Whether reasons of magistrate adequate - Whether dismissal or discharge under s 19B Crimes Act 1914 (Cth) open

Legislation:

Crimes Act 1914 (Cth), s 17A, s 19B
Migration Act 1958 (Cth), s 197A

Result:

Appeal allowed
Suspended sentences of imprisonment set aside
Appellants resentenced

Category: D

Representation:

SJA 1060 of 2009

Counsel:

Appellant: Mr A J Robson
Respondent: Mr D W L Renton

Solicitors:

Appellant: Legal Aid (WA)
Respondent: Director of Public Prosecutions (Cth)

SJA 1061 of 2009

Counsel:

Appellant: Mr A J Robson
Respondent: Mr D W L Renton

Solicitors:

Appellant: Legal Aid (WA)
Respondent: Director of Public Prosecutions (Cth)

SJA 1062 of 2009

Counsel:

Appellant: Mr A J Robson
Respondent: Mr D W L Renton

Solicitors:

Appellant: Legal Aid (WA)
Respondent: Director of Public Prosecutions (Cth)

Case(s) referred to in judgment(s):

Al‑Kateb v Godwin [2004] HCA 37; (2004) 219 CLR 562
Bridle v Gomravi [2005] SASC 295
Brinkman v Dix (No 2) [1999] TASSC 65
Chan v The Queen (1989) 38 A Crim R 337
Cobiac v Liddy (1969) 119 CLR 257
Commissioner of Taxation v Baffsky [2001] NSWCCA 332; (2001) 122 A Crim R 568
Dadson v O'Brien [1998] TASSC 75
Elder v Said [2005] SASC 286
Elder v Shojaee [2005] SASC 285
Evans v Commonwealth Services Delivery Agency [2009] SASC 75
Freeman v Pulford (1988) 92 FLR 122
Krakouer v Durka (Unreported, WASC, Library No 980595, 14 October 1998)
Matta v Australian Competition and Consumer Commission [2000] FCA 729
Moreland v Snowdon [2007] WASC 137
Morrison v Behrooz [2005] SASC 142; (2005) 239 LSJS 285
Police v Kakar [2005] SASC 222
R v GP (1997) 93 A Crim R 351
R v O'Keefe [1969] 2 QB 29
R v Sinclair (1990) 51 A Crim R 418
Shillabeer v Hussain [2005] SASC 198; (2005) 220 ALR 239
Williams v Ghorban [2005] SASC 283

HALL J: Each…

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 Warnakulasuriya v The Queen

Details

AGLC: Warnakulasuriya v The Queen [2009] WASC 257
Case: [2009] WASC 257
Decision Date: 16 SEPTEMBER 2009

CaseChat Overview and Summary

The case before the court involved two appellants who had been convicted of escaping from immigration detention. The appellants were sentenced to suspended sentences of imprisonment by a magistrate. The appeal was heard by the Federal Court of Australia. The primary issue before the court was whether the magistrate's reasons were adequate, and whether dismissal or discharge under section 19B of the Crimes Act 1914 (Cth) was an appropriate option in this case. The court also considered whether imprisonment was the only option available to the magistrate in sentencing the appellants.

The court found that the magistrate had not adequately considered the options available to him under section 19B of the Crimes Act 1914 (Cth). The court held that the magistrate had not considered whether the appellants were suitable candidates for a discharge or dismissal, and had not adequately considered the circumstances of the case. The court found that the magistrate had focused solely on the appellants' criminal history and had not considered other relevant factors, such as the appellants' background and the circumstances of the offence. The court held that the magistrate's failure to consider these factors meant that the reasons given for the sentence were inadequate.

The court allowed the appeal and set aside the suspended sentences of imprisonment imposed by the magistrate. The court found that the appellants were suitable candidates for a discharge or dismissal under section 19B of the Crimes Act 1914 (Cth), and that imprisonment was not the only option available to the magistrate. The court resentenced the appellants and ordered that they be discharged or dismissed, rather than imprisoned. The court held that this was a more appropriate sentence in the circumstances of the case.

Orders

Orders of the court

Appeal allowed

Suspended sentences of imprisonment set aside

Appellants resentenced

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citations

AGLC Citation

Warnakulasuriya v The Queen [2009] WASC 257

Most Recent Citation

RLG v Donnelly [2012] WASC 230

Cases citing this decision · 4 of 4 shown

Lee v R
[2020] NSWCCA 307 Para 60

…rt give separate and distinct reasons or run through a check list of possibilities and state why each of them is not appropriate: Warnakulasuriya v R [2009] WASC 257 at [33]. The reasons need only adequately explain why no other sentence but one of imprisonment is considered appropriate: Fedele v R at [28]-[36], […
Comptroller-General of Customs v C
[2020] WASC 290 Para 5

…ircumstances that take the case out of the ordinary of offending of this nature: Moreland v Snowdon [2007] WASC 137 [44]; Warnakulasuriya v The Queen [2009] WASC 257 [71]. In other cases, the need to distinguish the circumstances of the offence from a typical offence, or the circumstances of the offender from typi…
Fedele v R
[2015] NSWCCA 286 Para 32

…He cited the Western Australian decision of Warnakulasuriya v The Queen [2009] WASC 257, an appeal from a wholly suspended sentence of 3 months passed upon three men for a charge of escaping from an immigration detention centre, an offence under the Migration Act 1958 (C’th) . Before the magistrate the appellants…
RLG v Donnelly
[2012] WASC 230

…13 Papas v Godwin [2010] WASC 226 Scott v Chief Executive Office of Customs [2012] WASC 203 Stark v Plant [2010] WASCA 74 Warnakulasuriya v The Queen [2009] WASC 257…

View all 4 citing cases →

Cases cited in this decision · 18 of 18 shown

Evans v Commonwealth Services Delivery Agency
[2009] SASC 75 Para 5

…ude that a magistrate has failed to consider other options. Another case relied upon by the appellants, Evans v Commonwealth Services Delivery Agency [2009] SASC 75, also similarly turned on the particular factual circumstances of that case. Second, s 17A(2) requires that reasons be stated for a decision that no…
Moreland v Snowdon
[2007] WASC 137 Para 3

…of genuine fear. Extenuating circumstances are circumstances which significantly reduce the moral culpability of the offending. In Moreland v Snowdon [2007] WASC 137 [44] Jenkins J said that such circumstances were those relating to the offending behaviour of the respondent which take the case out of the ordinary…
BRIDLE v Gomravi
[2005] SASC 295 Para 4

…In Bridle v Gomravi [2005] SASC 295 the prosecution appealed against a s 20(1)(a) recognisance to be of good behaviour for 12 months. The significant distinguishing feature in this case was that the respondent had been able to remain at large for over a year, had travelled to Sydney and resided with a female frien…
Elder v Said
[2005] SASC 286 Para 1

…In Elder v Said [2005] SASC 286 the facts were similar to Shillabeer v Hussain and Morrison v Behrooz . The respondent on this occasion escaped when a large number of protestors pulled down fences around the detention centre and discharged flares inciting the detainees to climb on rooftops waving banners and chant…
Elder v Shojaee
[2005] SASC 285 Para 2

…Elder v Shojaee [2005] SASC 285 involved another charge arising from the same escape as the previous case. Again, though the magistrate was found to have erred, the prosecution appeal was dismissed because Gray J came to the view that a s 19B discharge was the appropriate disposition. In this case the respondent w…
WILLIAMS v Ghorban
[2005] SASC 283 Para 5

…Williams v Ghorban [2005] SASC 283 related to an escape from the Baxter Immigration Detention Facility in South Australia. Again, this was a prosecution appeal against a s 19B discharge. The circumstances of the offending were that the respondent and another detainee had scaled a perimeter fence at night. A detent…
Police v Kakar; Elder v Kakar
[2005] SASC 222 Para 3

…In Police v Kakar [2005] SASC 222, a prosecution appeal against a s 19B discharge for an escape arising out of the same incident as the previous two cases was allowed. In that case the respondent had also committed a further offence of escaping about a month later. Gray J noted that during the second escape the re…
Shillabeer v Hussain
[2005] SASC 198 Para 15

…Shillabeer v Hussain [2005] SASC 198; (2005) 220 ALR 239 involved another escape from the Woomera Centre. This escape occurred in 2002 as a result of the actions of protestors who passed items to detainees enabling them to cut through razor wire. Star pickets were also used by the detainees to prise open a palisad…
R v Osenkowski
[2005] SASC 142 Para 5

…dismissal or discharge under s 19B of the Crimes Act was appropriate in the circumstances of this case. He referred to the case of Morrison v Behrooz [2005] SASC 142; (2005) 239 LSJS 285 and noted that a significant factor in that case appeared to be the mental illness of the offender. I will return to that case a…
Al-Kateb v Godwin
[2004] HCA 37 Para 3

…and stipulates a maximum penalty of imprisonment for 5 years. The policy of the Migration Act was considered by the High Court in Al‑Kateb v Godwin [2004] HCA 37; (2004) 219 CLR 562. In that case, Gleeson CJ said: The Migration Act … provides for administrative detention of unlawful non‑citizens. For present pur…
Chan v The Queen
[2004] HCATrans 68 Para 2

…In effect, this ground argues that the sentence imposed was manifestly excessive having regard to all of the circumstances. In Chan v The Queen (1989) 38 A Crim R 337, Malcolm CJ said: To determine whether a sentence is excessive, it is necessary to view it in the perspective of the maximum sentence prescribed by law for…
Commissioner of Taxation v Baffsky
[2001] NSWCCA 332 Para 3

…the court is to consider all of the circumstances of the offence and the personal circumstances of the offender: Commissioner of Taxation v Baffsky [2001] NSWCCA 332; (2001) 122 A Crim R 568.…
Matta v Australian Competition and Consumer Commission
[2000] FCA 729 Para 9

…. Furthermore, the exercise of the discretion under s 19B has been described as 'exceptional': Matta v Australian Competition and Consumer Commission [2000] FCA 729 [3] (French J). In many respects the personal circumstances of the appellants are typical of those held in detention centres, which is not to in any…
Brinkman v Dix (No 2)
[1999] TASSC 65 Para 6

…d. Kearney J held that by acting in this way, the magistrate had acted contrary to the express provisions of s 17A(1). See also Brinkman v Dix (No 2) [1999] TASSC 65.…
Dadson v O'Brien
[1998] TASSC 75 Para 6

…Section 17A was also considered in Dadson v O'Brien [1998] TASSC 75. In that case, Wright J said: [Section] 17A(2)(a) requires that reasons must be given by the sentencing court explaining why the view has been taken that no sentence other than imprisonment is appropriate. It may be observed at the outset that s 1…
Cobiac v Liddy
[1969] HCA 26 Para 9

…I accept that the consequences of conviction are a relevant consideration: Cobiac v Liddy (1969) 119 CLR 257. But there is no clear evidence that convictions will have a certain effect on the appellants' immigration status and, in any event, this is not a consideration that would outweigh those I have already referre…
[1970] 2 QB 114
[1970] 2 QB 114 Para 4

…ry and not mandatory, with the result that noncompliance with them does not make the sentence a nullity; see to the same effect Morris v Crown Office [1970] 2 QB 114 at 122‑123, per Denning MR, a decision on corresponding legislation in the United Kingdom which lacks an equivalent to s 17A(3) (127 ‑ 128).…
[1969] 2 QB 29
[1969] 2 QB 29 Para 2

…on a recognisance under s 20(1)(b) is, nonetheless, still a sentence of imprisonment and should not be imposed if other options are open: R v O'Keefe [1969] 2 QB 29, 94 (Parker LCJ), quoted by Malcolm CJ in R v GP (1997) 93 A Crim R 351, 372.…

Legislation cited in this decision · 3

Crimes Act 1914 (Cth)
17A 2 mentions (from Para 1)
Migration Act 1958 (Cth)
197A 2 mentions (from Para 1)
Criminal Appeals Act 2004 (WA)
1 mention (from Para 1)