GLEESON CJ, GAUDRON, McHUGH, GUMMOW, KIRBY, HAYNE AND CALLINAN JJ
MICHAEL ALEXANDER McGARRY APPELLANT
AND
THE QUEEN RESPONDENT
McGarry v The Queen [2001] HCA 62 Date of Order: 6 September 2001 Date of Publication of Reasons: 24 October 2001 P61/2000
ORDER
1. Appeal allowed.
2. Set aside par 3 of the order of the Court of Criminal Appeal of Western Australia made on 6 December 1999 and in lieu order that the order for indefinite imprisonment of the appellant is quashed.
On appeal from the Supreme Court of Western Australia
Representation:
S Owen-Conway QC with R E Lindsay and R D Young for the appellant (instructed by Gunning)
R J Meadows QC, Solicitor-General for the State of Western Australia with R E Cock QC and R M Mitchell for the respondent (instructed by Director of Public Prosecutions for Western Australia)
Interveners:
R J Meadows QC, Solicitor-General for the State of Western Australia with R E Cock QC and R M Mitchell intervening on behalf of the Attorney-General for the State of Western Australia (instructed by Crown Solicitor for the State of Western Australia)
B M Selway QC, Solicitor-General for the State of South Australia with I K Haythorpe intervening on behalf of the Attorney-General for the State of South Australia (instructed by Crown Solicitor for the State of South Australia)
M G Sexton SC, Solicitor-General for the State of New South Wales with M J Leeming intervening on behalf of the Attorney-General for the State of New South Wales and the Attorney-General of the State of Tasmania (instructed by Crown Solicitor for the State of New South Wales and Crown Solicitor for the State of Tasmania)
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
CATCHWORDS
McGarry v The Queen
Criminal law – Sentencing – Indefinite imprisonment – Conditions for making order of indefinite imprisonment – Sufficiency of material to support conclusion that an order for indefinite imprisonment could be imposed – Whether High Court should substitute order or remit matter for re-sentencing in the Supreme Court.
Words and phrases – "a danger to society, or a part of it".
GLEESON CJ, GAUDRON, McHUGH, GUMMOW AND HAYNE JJ. The Court of Criminal Appeal of Western Australia concluded that the primary judge had erred in imposing a nominal term of five years' imprisonment on the appellant. The issue that must be decided on this appeal is whether it was, nevertheless, open to the Court of Criminal Appeal to dismiss the appellant's appeal against the order for indefinite imprisonment that had been made by the primary judge. In particular, was it open to the Court of Criminal Appeal first, to be satisfied, on the balance of probabilities, that when the appellant would otherwise be released from custody in respect of the nominal term of three years'…
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.
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AGLC
McGarry v The Queen [2001] HCA 62
Case
[2001] HCA 62
Decision Date
CaseChat Overview and Summary
The High Court of Australia heard an appeal by Michael McGarry against an order for indefinite imprisonment imposed by the District Court of Western Australia, which was upheld by the Court of Criminal Appeal of Western Australia. McGarry had pleaded guilty to indecent dealing with a child under 13 and three counts of impersonating a police officer. The dispute centred on the sufficiency of the material before the sentencing judge to justify an order for indefinite imprisonment under the relevant Western Australian legislation.
The legal issues before the High Court were whether the Court of Criminal Appeal erred in upholding the order for indefinite imprisonment, and consequently, whether the High Court should substitute its own order or remit the matter for re-sentencing. Specifically, the court considered the conditions required for imposing an order of indefinite imprisonment and the adequacy of the evidence presented to support such a conclusion in McGarry's case.
The High Court allowed the appeal, quashing the order for indefinite imprisonment. The court reasoned that the material before the sentencing judge was insufficient to support the conclusion that McGarry posed an unacceptable risk of committing further offences of a like kind, which is a prerequisite for imposing indefinite imprisonment. While the offence was serious and involved planning, the court found that the sentencing judge had not adequately considered all relevant factors, including the appellant's early plea of guilty and the potential for rehabilitation, in making the indefinite imprisonment order. The court determined that it was not necessary to decide constitutional points that had been raised, as the appeal could be resolved on the interpretation of the sentencing provisions.
Orders
Orders of the court
1. Appeal allowed.
2. Set aside par 3 of the order of the Court of Criminal Appeal of Western Australia made on 6 December 1999 and in lieu order that the order for indefinite imprisonment of the appellant is quashed.
Background
Background to the litigation
Having heard the submissions of the parties addressed to the meaning of the relevant laws, this Court reserved its decision in order to consider whether it was essential to decide the constitutional points. The Court decided that it was not. By order of the Court announced earlier the appeal was allowed and consequential orders were made. I now state my reasons for joining in those orders.The facts Mr Michael McGarry ("the appellant") was prosecuted on indictment in the District Court of Western Australia upon a single count that charged him with indecent dealing with a child under the age of 13 years contrary to s 320(4) of the Criminal Code (WA) ("the Code"). In October 1998, before the Chief Judge of the District Court (Hammond CJDC), the appellant pleaded guilty to the indictment. He was duly convicted. He was remanded in custody and the presiding judge requested a "sex offender's treatment report" from the Sex Offender Treatment Unit of the Ministry of Justice. On the further hearing of the matter before the same judge in December 1998, the appellant was charged with, and pleaded guilty to, three additional and related summary offences of impersonating a police officer, contrary to s 16(1) of the Police Act 1892 (WA). The maximum penalty provided by the Code for the indictable offence was ten years imprisonment. The maximum sentence in respect of each of the summary offences was six months imprisonment or a fine of $500. The conduct that brought the appellant to be sentenced in December 1998 was not contested. In December 1997, in a local newspaper, the appellant had seen a photograph of the complainant, together with six other schoolgirls. Using the telephone directory, he located the complainant's home address and telephone number. Two days after the publication, the appellant went to the complainant's home at about 9.30 pm. He entered the rear yard of the premises and saw the complainant and her 14 year old sister inside their home. He attracted the attention of the complainant by tapping on the window. When she approached the window, the appellant exposed his erect penis and masturbated until ejaculation. He then left the premises, having no physical contact with the complainant. This conduct constituted the "indecent dealing" charge because, by virtue of the Code, such dealing includes "committing an indecent act in the presence of the child"[12].[12]The Code, s 319(3)(c). Subsequently, the appellant made three telephone calls to the complainant's home. Two were made on the same day later in December 1997. One was made early in January 1998. On each occasion, the telephone was answered by the complainant's sister. Each time, the appellant identified himself as a police officer. The appellant was traced by the interception of one of the telephone calls. He was interviewed by police. He admitted that during the first telephone call he had been masturbating. He stated in his record of interview, that he had telephoned the complainant's home to find out if his offence had been reported to police.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
HUGH, GUMMOW AND HAYNE JJ
KIRBY J
CALLINAN J
(dissent)
The appellant was also sentenced to three months imprisonment on each of the charges of impersonating a police officer, to be served concurrently with the foregoing sentences. The appellant applied for leave to appeal to the Court of Criminal Appeal against the sentences to finite terms of imprisonment. He appealed to that Court as of right against the sentence to an indefinite term of imprisonment[15].[15]The Code, s 688(1a)(a).The decision of the Court of Criminal Appeal The appeal to the Court of Criminal Appeal was confined to three grounds, namely that the sentence of five years imprisonment was manifestly excessive; that the sentencing judge had erred in refusing parole; and that he had erred in imposing a sentence of indefinite imprisonment. Upon these grounds, the Court of Criminal Appeal divided. All judges of the Court agreed that the sentence of imprisonment for indecent dealing was excessive and should be reduced to three years imprisonment. The appellant was therefore granted leave to appeal and, unanimously, the judgment and sentence of the Court of Criminal Appeal substituted three years imprisonment for the "head sentence" of five years imposed by the sentencing judge. Having regard to this reduction in the sentence of imprisonment and the date upon which the appellant had first entered custody in respect of the indecent dealing offence and the sentencing law of Western Australia providing for automatic remissions[16], it was common ground before this Court that if the sentencing judge had not, in addition to imposing the fixed term of imprisonment, in effect, ordered the appellant to be imprisoned indefinitely[17], the appellant would have been entitled to be released by early May 2001.[16]Sentencing Act, ss 93‑94; Sentence Administration Act 1995 (WA), ss 21‑22.[17]Hammond CJDJ incorrectly described his order as a "declaration". See the reasons of Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ at [7] ("the joint reasons"). On the indefinite imprisonment order, the judges constituting the Court of Criminal Appeal expressed different conclusions. Although Kennedy J would have allowed the appeal and quashed that part of the sentence, the majority (Pidgeon and Murray JJ) concluded that the order of indefinite imprisonment should stand. In his reasons, Pidgeon J expressed the opinion that it had been open to the sentencing judge to reach the conclusion that the appellant "presented a danger to society within the meaning of s 98(2) of the Sentencing Act"[18]. He stated that "[t]he first matter to consider under that section is the exceptional seriousness of the offence". But, even if the offence did not come into that category, it was open to the sentencing judge to reach the view "that the prisoner is a danger to society by reason of the other factors referred to in that sub-section". Pidgeon J said that the offence and the circumstances in which it was committed, involved planning and deliberation. In his Honour's opinion, the appellant had shown that, despite undertakings and supervision, he was "unable to prevent himself from offending"[19]. He then turned to the other considerations mentioned in s 98(2) of the Sentencing Act, specifically relating to the character of the offender. Like the sentencing judge, he relied on the conclusion in the sex offender's treatment report. He concluded that the principal reason for reducing the sentence from five years to three years imprisonment was the appellant's early plea of guilty[20].[18]McGarry [1999] WASCA 276 at [34].[19]McGarry [1999] WASCA 276 at [36].[20]McGarry [1999] WASCA 276 at [39].
Ratio Decidendi
Legal Principle Established
Established by:
HUGH, GUMMOW AND HAYNE JJ,
KIRBY J,