McGarry v The Queen

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.