Thompson v The Queen

[2000] WASCA 392

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT  :   COURT OF CRIMINAL APPEAL

CITATION:   THOMPSON -v- THE QUEEN [2000] WASCA 392

CORAM:   KENNEDY J

WALLWORK J
STEYTLER J

HEARD:   6 DECEMBER 2000

DELIVERED          :   14 DECEMBER 2000

FILE NO/S:   CCA 42 of 1998

CCA 43 of 1998

BETWEEN:   JASON ANTHONY THOMPSON

Appellant

AND

THE QUEEN
Respondent

Catchwords:

Appeal - Remitter to District Court after appeal against sentence upheld - Extent of jurisdiction on remitter - Turns on own facts

Legislation:

Criminal Code (WA), s 691(1)

Sentencing Act 1995 (WA), s 89, s 98

Result:

Direction that remitter encompasses issue of eligibility for parole

Representation:

Counsel:

Appellant:     Mr D Grace QC

Respondent:     Mr E Balodis

Solicitors:

Appellant:     Gunning

Respondent:     State Director of Public Prosecutions

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

Lowndes v The Queen (1999) 195 CLR 665

Thompson v The Queen (1999) 73 ALJR 1319

Case(s) also cited:

Britten v The Queen, unreported; CCA SCt of WA; Library No 940079; 21 February 1994

Chester v The Queen (1988) 165 CLR 611

McGarry v The Queen [1999] WASCA 276

Narrier v The Queen [2000] WASCA 86

Oleksiuk v Downey, unreported; SCt of WA (Seaman J); Library No 940189; 8 April 1994

P v The Queen, unreported; CCA SCt of WA; Library No 970580; 4 November 1997

Pantorno v The Queen (1989) 84 ALR 390

Pearce v Bancroft, unreported; SCt of WA (Franklyn J); Library No 7594; 12 April 1989

Pedretti v The Queen, unreported; CCA SCt of WA; Library No 970714; 12 December 1997

R v Catts (1996) 85 A Crim R 171

R v Clinch (1994) 72 A Crim R 301

R v Deakin, unreported; CCA SCt of WA; Library No 8064; 14 February 1990

R v Dunstan, unreported; CCA SCt of WA; Library No 990074; 19 February 1999

R v Gooch (1989) 43 A Crim R 382

R v Mackay, unreported; CCA SCt of WA; Library No 970689; 10 December 1997

R v Moffatt [1998] 2 VR 229

R v Ogilvie, unreported; CCA SCt of WA; Library No 960643; 8 November 1996

R v Siganto (No 2) (1999) 106 A Crim R 30

R v Walsh, unreported; CCA SCt of WA; Library No 950385; 4 August 1995

R v Wong (1995) 16 WAR 219

RHMcL v The Queen (2000) 174 ALR 1

Stanton v The Queen, unreported; CCA SCt of WA; Library No 920298; 28 May 1992

Thompson v The Queen [2000] WASCA 186

Thompson v The Queen, unreported; CCA SCt of WA; Library No 980600; 19 October 1998

1. JUDGMENT OF THE COURT: This is an application, brought pursuant to s 691(1) of the Criminal Code (WA), for directions.

2. The appellant was, on 20 March 1998, sentenced by the District Court of Western Australia to a period of 10 years' imprisonment on a charge of entering a house with intent to commit an offence and to a period of 5 years' imprisonment in respect of a charge of attempted child stealing, the two sentences to be served concurrently. The learned sentencing Judge did not make an order that the appellant was eligible for parole and ordered, pursuant to s 98 of the Sentencing Act 1995 (WA), that he be imprisoned indefinitely after completing the terms of imprisonment imposed upon him.

3. The appellant appealed to this Court against his conviction and sentence.  Both appeals were dismissed on 19 October 1998.

4. The appellant thereafter appealed, by special leave, to the High Court of Australia against the dismissal of his appeal against sentence.  That Court ordered that the "part of the order of the Court of Criminal Appeal of the Supreme Court of Western Australia made on 19 October 1998 dismissing the appeal to that court be set aside" and that, in lieu thereof, there be orders that:

   "(a)the appeal to the Court of Criminal Appeal of the Supreme Court of Western Australia be allowed in part;

   (b)the indefinite sentence imposed on the applicant on 20 March 1998 by the District Court be set aside, and

   (c)the matter be remitted to the Court of Criminal Appeal of the Supreme Court of Western Australia for the necessary orders to be made in accordance with [the] judgment of this court."

5. When the matter was remitted to this Court for the making of the "necessary orders" pursuant to order (c) above this Court ordered that "the question of the indefinite sentence be remitted to the Judge of the District Court who had originally dealt with the matter for rehearing and determination".  That was done.  However when the matter came on before the learned Judge for re‑hearing the question arose whether her jurisdiction in the remitter was confined to the issue of whether or not an indefinite sentence should be imposed or whether she was free to reconsider the entirety of the sentence originally imposed by her upon the appellant, including the issue of parole.  That question has been returned to this Court for clarification.

6. It is plain that her Honour is not free to reconsider the entirety of the sentence originally imposed by her.  No order has been made which sets aside the period of 10 years' imprisonment imposed upon the appellant.  All that was set aside pursuant to the orders made by the High Court was the indefinite sentence imposed upon the applicant.

7. However it seems to us that her Honour is entitled to reconsider the question of parole.  The basis upon which the indefinite sentence was set aside appears essentially to have been that there were inadequacies in the original sentencing proceedings in that pre‑sentence and psychological reports which were relied upon by the learned sentencing Judge had been prepared in haste and were not comprehensive and that the appellant should have a fuller opportunity than has been afforded to him in order to address matters which are raised in those reports  (See Thompson v The Queen (1999) 73 ALJR 1319.) The matters in those reports are as applicable to a determination, under s 89 of the Sentencing Act 1995, whether or not an offender should be ordered to be eligible for parole as they are to the question, under s 98 of the Act, whether or not to order indefinite imprisonment. So much is apparent from a comparison of the provisions of s 89(2) (and in particular, subsection (d) thereof) with those of s 98(2) (and in particular, subsection (c) thereof). (See also Lowndes v The Queen (1999) 195 CLR 665 at [10].)

8. It consequently seems to us to follow from the reasoning of the High Court, in the very unusual circumstances of this case, that one of the "necessary orders" to be made in accordance with the judgment of the High Court is that the remitter to the learned sentencing Judge should encompass both a reconsideration of the question whether to impose an indefinite sentence and a reconsideration of the question whether a parole eligibility order should now be made.  We consequently propose to make a direction accordingly.