Chester v The Queen - [1988] HCATrans 252

IN THE HIGH COURT OF AUSTRALIA
Office of the Registry

Perth No P24 of 1988
B e t w e e n -
JOHN ROBERT CHESTER

Applicant

and
THE QUEEN

Respondent

Application for special
leave to appeal

MASON CJ
BRENNAN J
DEANE J
TOOHEY J
GAUDRON J

Chester
TRANSCRIPT OF PROCEEDINGS
AT PERTH ON MONDAY, 24 OCTOBER 1988, AT 2.16 PM
Copyright in the High Court of Australia

PlT3/l/PLC 1 24/10/88

MR H.A. WALLWORK, QC: May it please Your Honours, I
appear with MR P.G. LASKARIS for the
applicant in this matter. (instructed by
Messrs Frichot & Frichot)

MR K.H. PARKER, Q~, Solicitor-General .for Western Australia: If ~t ·please
· · the Court, I appear with IIl:Y learned friend, MR M.D. WHEELER to :represer
the resporident·. - ( instructed by the Crow:1 Solicitor for Western Austral:

MASON CJ: Yes, Mr Wallwork?
MR WALLWORK: If Your Honours please, this is an application
for special leave to appeal against sentence
and as part of it there is an application for
the extension of time. The reason, if I may very briefly touch on the extension of time,
that the application was filed a considerable.
time after the sentence~was that the applicant
did not obtain legal aid until very late this year
and immediately that was done this application
was filed.
If I may, though, direct my remarks firstly

to the substance of the matter, he was sentenced
to a term of imprisonment followed by an
indeterminate sentence pursuant to section 662{a)

of our CRIMINAL CODE. I hand up to Your Honours
five copies of the applicant's submissions, together
with five copies of the authorities relevant to
the matter.
. ,,,, /

MASON CJ: Thank- you, Mr Wallw0rk. Now these volUIIEs are authorities
relevant to the matter, are they?

MR WALLWORK:

Yes, Your Honour. Each case is separated with a pink slip, if Your Honours please.

I regret
that they are not numbered, but I do not think
there will be any difficulty in finding them.

MASON CJ: It will not be necessary to go through these

authorities in detail1

MR WALLWORK: No, I do not intend to, Your Honours.

MASON CJ: This is in terrorem, is it?

MR WALLWORK: No, just in case, I think, sir. Your Honours,
this applicant was sentenced at the end of last

year. He will be 40 on 7 December this year. He
was sentenced for taking $19,000 from a bank
when he was armed with a knife and,. prior to
stealing the money, he had unlawfuliy taken

a car which he also was charged with. The
sentence was - His Honour structured it by saying that
he would have given him five years but, due to the

PIT3/2/JM 2 24/10/88
Chester
fact that he had already served six months
in custody, he gave him six months on the unlawful use offence, which was the first
one on the indictment, followed by four
years on the robbery with violence indictment,
and then he ordered that he be…

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 Chester v The Queen

Details

AGLC: Chester v The Queen [1988] HCATrans 252
Case: [1988] HCATrans 252
Decision Date

CaseChat Overview and Summary

The applicant, Chester, sought special leave to appeal to the High Court of Australia against a sentence imposed upon him. He was represented by Mr H.A. Wallwork, QC, and Mr P.G. Laskaris, while the respondent, The Queen, was represented by the Solicitor-General for Western Australia, Mr K.H. Parker, QC, and Mr M.D. Wheeler. The application for special leave was accompanied by an application for an extension of time, which was sought due to delays in obtaining legal aid.

The central legal issue before the High Court was the applicant's sentence, which comprised a term of imprisonment followed by an indeterminate sentence of detention during the Governor's pleasure, pursuant to section 662(a) of the Criminal Code. The applicant had pleaded guilty to unlawfully using a motor vehicle and to robbery with violence. The sentencing judge structured the sentence by imposing six months' imprisonment for the unlawful use offence and four years' imprisonment for the robbery offence, taking into account the six months already served. Crucially, the judge then ordered detention during the Governor's pleasure.

The applicant's submissions focused on the imposition of the indeterminate sentence. The facts presented indicated that the applicant, aged 39, had stolen a car and then robbed a bank of $19,000 while armed with a knife. Approximately $11,325 of the stolen money was recovered. The applicant had admitted the offences and co-operated with the police. The sentencing judge noted that the dominant motive for the robbery appeared to be to assist a close friend who was on remand for a similar charge. The applicant's legal team argued that the indeterminate sentence was not appropriate in the circumstances.

Orders