Thompson v The Queen [1999] HCA 43 2 September 1999 P60/1998
ORDER
Extend time to apply for special leave to appeal until 10 December 1998.
Grant special leave to appeal and treat the appeal as instituted and heard instanter.
Set aside the order of the Court of Criminal Appeal of Western Australia made on 19 October 1998 dismissing the appeal to that Court.
In lieu thereof, allow the appeal to that Court in part, set aside the indefinite sentence imposed on the applicant on 20 March 1998 by the District Court, and remit the matter to the Court of Criminal Appeal to be dealt with conformably with the reasons for these orders.
On appeal from the Supreme Court of Western Australia
Representation:
D Grace QC for the applicant (instructed by Gunning)
R E Cock QC with J W M Foulsham for the respondent (instructed by Director of Public Prosecutions (Western Australia))
Notice: This copy of the Court’s Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
CATCHWORDS
Thompson v The Queen
Criminal law and procedure – Sentencing – Indefinite sentence imposed by trial judge – Presentence and psychological reports relied on by trial judge inadequately prepared – Appeal against indefinite sentence to Court of Criminal Appeal (WA) – Whether Court of Criminal Appeal erred in commissioning further psychological reports on appeal – Right of defendant to be fully heard where defendant being resentenced – Circumstances in which indefinite sentence should be imposed.
Appeal – Court of Criminal Appeal (WA) – Application for leave to appeal against sentence – Sentence included order of indefinite sentence – Defects in materials relied on by sentencing judge – Appellate court secures fresh psychological reports in course of disposing of grounds of appeal – Whether appellate procedure miscarried – Whether new reports only relevant to resentence of prisoner after appeal upheld and original sentence set aside.
Sentencing Act 1995 (WA), s 98. Criminal Code (WA), s 697.
GAUDRON AND HAYNE JJ. In this matter, the respondent opposed neither the extension of time for the bringing of this application for special leave to appeal nor the grant of such leave. In the event that special leave was granted, the respondent consented to the allowing of the appeal on the basis that the material before the sentencing judge who imposed an indefinite sentence on the applicant was, and was found by the Court of Criminal Appeal to be, inadequate.
In our opinion, the finding by the Court of Criminal Appeal that "the presentence and psychological reports relied upon by [the sentencing judge] were prepared in some haste with the further consequence that the psychological assessment which was carried out was not comprehensive" leads inevitably to the conclusion that the decision of the sentencing judge miscarried. Accordingly, the appeal to the Court of Criminal Appeal should have been allowed to the extent that it…
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
Thompson v The Queen [1999] HCA 43
Case
[1999] HCA 43
Decision Date
CaseChat Overview and Summary
The High Court of Australia considered an appeal by Thompson against an indefinite sentence imposed by the District Court of Western Australia. The appeal concerned the procedures followed by the Court of Criminal Appeal of Western Australia in dealing with Thompson's appeal against his sentence.
The central legal issues before the High Court were whether the Court of Criminal Appeal erred in commissioning further psychological reports on appeal, and whether the right of a defendant to be fully heard during resentencing had been prejudiced by the appellate court's procedure. The High Court also considered the circumstances under which an indefinite sentence should be imposed.
The High Court found that while the Court of Criminal Appeal had acted without objection from the applicant's counsel at the time, and had provided the new reports to both parties for further submissions, the procedure raised concerns regarding the applicant's right to be fully heard, particularly in the context of a resentencing exercise. The Court noted that the original sentencing judge had laboured under time constraints, leading to inadequately prepared presentence and psychological reports. Consequently, the High Court set aside the order of the Court of Criminal Appeal dismissing Thompson's appeal and remitted the matter to that Court to be dealt with in accordance with the High Court's reasons.
Orders
Orders of the court
1.
Extend time to apply for special leave to appeal until 10 December 1998.
2.
Grant special leave to appeal and treat the appeal as instituted and heard instanter.
3.
Set aside the order of the Court of Criminal Appeal of Western Australia made on 19 October 1998 dismissing the appeal to that Court.
4.
In lieu thereof, allow the appeal to that Court in part, set aside the indefinite sentence imposed on the applicant on 20 March 1998 by the District Court, and remit the matter to the Court of Criminal Appeal to be dealt with conformably with the reasons for these orders.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
GAUDRON AND HAYNE JJ
KIRBY J
However, in addition to the foregoing, in the Court of Criminal Appeal, the applicant relied on two grounds which concerned the procedures that had been followed when he stood for sentence. Those grounds, as expressed in the application to the Court of Criminal Appeal, were:"(v) The presentence and psychological reports were prepared in insufficient time, and the conclusion that the Appellant was [sic] a high risk of reoffending was based almost exclusively on reports from 1986 together with short interviews with the Appellant.(vi) The conclusion in the psychological report that the Appellant was [sic] a high risk of reoffending was made without undertaking any psychological evaluation and accordingly could not be relied upon as cogent evidence that he would be a constant and continuing danger when released."Procedures and decision of the Court of Criminal Appeal The reasons for the orders of the Court of Criminal Appeal were given by Steytler J, with whom Kennedy and Wallwork JJ agreed. In the course of those reasons, and addressing the grounds last specified, Steytler J said[9]:"The appellant … attacked the cogency of the pre-sentence and psychological reports which were obtained upon the basis that these were inadequately prepared having regard to prevailing time constraints.There is, in this respect, no doubt that the learned sentencing Judge was, at the time of sentencing, labouring under time constraints, about which she could do little and through no fault of her own, due to her impending departure for a period of extended leave. This had the consequence that the pre-sentence and psychological reports relied upon by her were prepared in some haste with the further consequence that the psychological assessment which was carried out was not comprehensive.In those circumstances this Court commissioned further psychological and psychiatric assessments in respect of the applicant on the hearing of the appeal."[9]Appeal judgment at 25. When the application for special leave was called for hearing in this Court, concern was expressed about the procedure which had been followed. Counsel representing the appellant had not appeared before the primary judge nor in the Court of Criminal Appeal. He was unable to answer some of the questions asked by this Court. The hearing of the application was therefore interrupted to permit the Crown to place before the Court transcript and other materials to indicate how the commissioned reports came to be received by the Court of Criminal Appeal in the hearing and disposition of the application for leave to appeal before it against the sentence imposed upon the appellant. When the hearing of the application before this Court resumed, the transcript and materials provided made it clear that the course adopted by the Court of Criminal Appeal, and initiated by it, elicited no objection at the time from counsel then appearing for the applicant. Moreover, the commissioned reports were provided by the associate to the presiding judge both to the applicant and to the Crown with an invitation for further written submissions. Such further written submissions were received by the Court of Criminal Appeal and exchanged between the parties but no further oral hearing was sought or took place. Counsel appearing before this Court was unaware of these events. However, it was accepted that no suggestion could be made that the Court of Criminal Appeal had acted on materials of which the applicant had been unaware[10].[10]cf R v Lucky (1974) 12 SASR 136 at 139; R v Carlstrom [1977] VR 366 at 367; Fox and Freiberg, Sentencing: State and Federal Law in Victoria, 2nd ed (1999) at 161. Amendment of the grounds of appeal to the High Court