Warnakulasuriya v The Queen

Case [2009] WASC 257


JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CIVIL

CITATION:   WARNAKULASURIYA -v- THE QUEEN [2009] WASC 257

CORAM:   HALL J

HEARD:   28 AUGUST 2009

DELIVERED          :   16 SEPTEMBER 2009

FILE NO/S:   SJA 1060 of 2009

BETWEEN:   THUSHARA SAMPATH FERNANDO WARNAKULASURIYA

Appellant

AND

THE QUEEN
Respondent

FILE NO/S              :SJA 1061 of 2009

BETWEEN              :SUMITH SURESH KUMARA MENDIS BALAPUWADUGE

Appellant

AND

THE QUEEN
Respondent

FILE NO/S              :SJA 1062 of 2009

BETWEEN              :PRASATH INDIKA MENDIS BALAPUWADUGE

Appellant

AND

THE QUEEN
Respondent

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

  1. HALL J: Each…

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Warnakulasuriya v The Queen [2009] WASC 257
Case
[2009] WASC 257
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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

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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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