Event and Time
Event Description
On 1 April 2019, the applicant was found guilty after a trial of one charge of kidnapping, one charge of false imprisonment, and two charges of common law assault. On the same day, Nalaka Wijeratne, a co-accused, was found guilty of similar charges, including making a threat to kill. A third co-accused, Suncica Brajic-Bejdic, had previously pleaded guilty to kidnapping and false imprisonment and received a sentence totaling 4 years with a non-parole period of 2 years.
Application and Claims
The applicant contested the disparity between his sentence and that of co-accused Wijeratne regarding the kidnapping charge, arguing it was not reasonably open on the facts of the case. He highlighted similarities and mitigating factors compared to Wijeratne and attempted to show a lesser degree of moral culpability. The respondent scrutinized differences in criminal records and the significance of immigration detention for Wijeratne, maintaining that the sentences were rationally explained.
Judicial Decisions
The court had to determine whether the sentencing judge’s differential sentencing between the applicant and Wijeratne was reasonable. Ultimately, the Court affirmed the judge's decisions based on the assessment of criminal records, roles in the kidnapping, and the specific deterrence necessary due to the applicant’s history of violence.
Dispute Points and Legal Basis
Dispute Points
- The applicant claimed the disparities in sentencing were unjustified given their similar roles in the offending.
- The applicant emphasized mitigating factors such as his lesser involvement compared to Wijeratne, his moral culpability, and positive engagement in rehabilitation.
- The respondent highlighted significant differences in criminal records and the differing sentences justifiably based on individual circumstances and public safety considerations.
- The applicant's counsel noted that being deemed a "lesser" offender did not justify a significantly harsher sentence.
- The respondent underscored that the applicant's extensive history of violence justified greater weights on specific deterrence and community safety.