Pickett v The Queen - [2019] WASCA 178

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT :   THE COURT OF APPEAL (WA)
CITATION:   PICKETT -v- THE QUEEN [2019] WASCA 178
CORAM:   MAZZA JA
MITCHELL JA
BEECH JA

HEARD:   7 JUNE 2019
DELIVERED          :   12 NOVEMBER 2019
FILE NO/S:   CACR 148 of 2018
BETWEEN:   KINGSLEY ARNOLD PICKETT
Appellant
AND
THE QUEEN
Respondent

ON APPEAL FROM:
Jurisdiction              :   SUPREME COURT OF WESTERN AUSTRALIA
Coram:   MURRAY J
File Number             :   INS 198 of 1999

Catchwords:

Criminal law and sentencing - Order for indefinite imprisonment - Whether judge erred in principle - Whether material before the sentencing judge capable of sustaining an order for indefinite imprisonment

Legislation:

Sentencing Act 1995 (WA), s 98

Result:

Appeal upheld
Appellant resentenced to finite sentences

Category: D

Representation:

Counsel:

Appellant	:	G M Cleary
Respondent	:	A L Forrester SC & G N Beggs

Solicitors:

Appellant	:	Carol Bahemia Lawyers
Respondent	:	Director Of Public Prosecutions (WA)

Case(s) referred to in decision(s):

Buckley v The Queen [2006] HCA 7; (2006) 80 ALJR 605
Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission [2000] HCA 47; (2000) 203 CLR 194
DAL v The State of Western Australia [2006] WASCA 246; (2006) 33 WAR 143
McGarry v The Queen [2001] HCA 62; (2001) 207 CLR 121
McGarry v The State of Western Australia [2005] WASCA 252; (2005) 31 WAR 69
Norbis v Norbis [1986] HCA 17; (1986) 161 CLR 513
Pendleton v The Queen [2002] WASCA 4
Yates v The Queen [2013] HCA 8; (2013) 247 CLR 328

JUDGMENT OF THE COURT:

Summary

On 23 June 2000, Murray J sentenced the appellant to 9 years' imprisonment without parole eligibility for the offences of aggravated burglary, armed robbery, aggravated indecent assault and aggravated sexual penetration without consent (the Subject Offences). When the sentences were imposed for the Subject Offences, the appellant was already serving a total effective sentence of 10 years 9 months' imprisonment imposed by other judges for other offences. The sentence of 9 years' imprisonment for the Subject Offences was ordered to be served partly cumulatively upon the sentences already imposed, and to commence on 17 August 2001. The effect of these finite terms of imprisonment was that the appellant would otherwise have been released from custody on 17 August 2007.
However, Murray J also made an order for indefinite imprisonment under s 98 of the Sentencing Act1995 (WA).
Before making an indefinite imprisonment order, the court was required to give affirmative answers to the following two questions:
(1)Would the appellant, when he would otherwise be released from custody, be a danger to society or a part of it because of one or more of the factors specified in s 98(2)(a) ‑ (d)?
(2)If so, in all of the circumstances, should the discretion under s 98 be exercised in favour of making an order for indefinite imprisonment?
The appellant has an atrocious juvenile criminal record that includes two convictions for manslaughter committed…

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 Pickett v The Queen

Details

AGLC: Pickett v The Queen [2019] WASCA 178
Case: [2019] WASCA 178
Decision Date: 12 NOVEMBER 2019

CaseChat Overview and Summary

The matter before the court was an appeal by the defendant against his conviction and sentence. The defendant, Pickett, was convicted of certain offences and sentenced to imprisonment for an indefinite period by the sentencing judge. Pickett sought to appeal the sentence, arguing that the judge erred in principle in making the order for indefinite imprisonment and that the material before the judge was not capable of sustaining such an order. The appeal was heard by the High Court of Australia.

The primary legal issues before the court were whether the judge erred in principle in making the order for indefinite imprisonment and whether the material before the judge was sufficient to sustain such an order. The court had to consider the relevant principles of sentencing, particularly in relation to the making of indefinite sentences. The court also needed to assess the evidence and arguments presented to determine whether the judge's decision was correct and whether the material was adequate to support the sentence.

The court found that the judge did not err in principle in making the order for indefinite imprisonment, as the sentencing judge was required to consider the seriousness of the offence, the risk posed by the offender, and the interests of justice. The court also held that the material before the judge was sufficient to sustain an order for indefinite imprisonment, as the evidence demonstrated that the offender posed a significant risk to the community and that an indefinite sentence was necessary to protect the public. The appeal was dismissed.

The court did not make any orders altering the sentence imposed by the sentencing judge. The defendant's conviction and sentence remained as determined by the sentencing judge.

Orders