High Court of Australia|1999-09-02|Before: Hayne JJ

The applicant appealed to the Court of Criminal Appeal of Western Australia against his conviction. He also sought leave to appeal against the sentence imposed upon him. The appeal against conviction was dismissed[7]. That aspect of the matter has not concerned this Court. In respect of the application for leave to appeal against sentence, the Court of Criminal Appeal ordered that leave be granted but that the appeal be dismissed[8]. The applicant's application for special leave to appeal against so much of the orders of the Court of Criminal Appeal as concerned his sentence was filed a few weeks out of time. An affidavit was filed explaining this delay. No point was made by the Crown about the delay. It consented to the extension of time. Such an extension should be granted.

As originally filed, the applicant's application repeated grounds argued in the Court of Criminal Appeal but found against him. Those grounds concerned the interpretation of s 98(1) of the Sentencing Act, the application of the section to the circumstances of his case and the availability to the sentencing judge of consideration of convictions entered against him in 1986 when he was a "young person" within the meaning of of the (WA).

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."

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].

Amendment of the grounds of appeal to the High Court

Nevertheless, counsel for the applicant sought to enlarge the grounds of the application for special leave to appeal to include objections to the procedure which had been followed by the Court of Criminal Appeal. The Crown raised no objection to this enlargement of the grounds. The Court permitted the application to be amended for that purpose. In substance, the applicant's additional complaints were that the Court of Criminal Appeal lacked the power under the Criminal Code or otherwise to obtain the new reports in the course of disposing of an application for leave to appeal against sentence and that the Court of Criminal Appeal had erred in law in relying upon such reports in deciding the appeal. It was submitted that the Court had acted as it did in circumstances where it was plainly concerned about the adequacy of the procedures followed, and the evidence received, by the sentencing judge[11]. It had telescoped the steps necessary to the proper consideration of the evidence relevant to the sentence imposed upon the applicant by the primary judge and the discharge of its own function as an appellate court. For the applicant it was submitted that the Court of Criminal Appeal should first have considered whether, on the evidence received at first instance, error had been shown in the sentencing procedures[12]. If it concluded that question in the affirmative, it then had to consider whether it was appropriate to set aside the sentencing orders of the primary judge, to remit the matter for resentencing or to proceed to resentence the applicant itself [13]. Only if the last decision had been made would it have been permissible to receive fresh evidence of such a kind.

It is not necessary in these proceedings finally to answer the question whether, in the foregoing circumstances, the Court of Criminal Appeal had the power to commission "further psychological and psychiatric assessments ... on the hearing of the appeal"[14]. The Criminal Code[15] affords that Court powers which are expressed in broad terms. It is conceivable that in some circumstances, it might be permissible and appropriate for a Court of Criminal Appeal to receive new reports, not as fresh evidence but as argumentative material, in order to test a proposition, advanced by a party in its submissions, that particular evidence earlier adduced for the purposes of sentencing was inadequate, ambiguous or otherwise in need of clarification. However, this was a case in which the Court of Criminal Appeal obviously, and rightly, considered that the procedures of sentencing, as conducted by the primary judge, had been unsatisfactory. Clearly, Steytler J concluded that the judge had proceeded to her sentence "in some haste" and with the consequence that "the psychological assessment which was carried out was not comprehensive"[16]. These were the circumstances in which the initiative was taken to commission the further psychological and psychiatric assessments. But they would only have been relevant, the inadequacies at first instance being exposed, to procedures appropriate to the resentencing of the applicant. Upon such proceedings, where the applicant was facing the possibility of an order of indefinite imprisonment, it was essential that he be fully heard. It would ordinarily have been desirable that submissions on resentencing should involve an oral hearing specifically directed at that purpose, before any such order was made by the Court of Criminal Appeal in his case. It was not permissible to compress the appellate procedures as was done by that Court.

When this Court made clear to the parties its concerns about what had occurred, we were invited by the Crown to grant special leave and to treat the hearing as the hearing of the appeal but confined to the procedural questions raised by the added grounds of appeal. This, it was argued, would ensure the prompt and full reconsideration of the sentence proper to the case. Counsel for the applicant elected to accept that course rather than to persist with the grounds of the application as originally framed. It was in these circumstances that the Court indicated the orders which it proposed to make, as announced 6 August 1999. Those orders proposed that the orders made by the Court of Criminal Appeal should be set aside, the appeal to that Court allowed to the extent of the order of indefinite imprisonment, and the matter remitted to the Court of Criminal Appeal. Such orders would leave it to that Court to determine whether it could or should proceed itself to resentence the applicant or remit the proceedings to the District Court of Western Australia for resentencing of the applicant.

Requirement of scrupulous procedures in such a case

I am conscious that in commissioning the further psychological and psychiatric assessments of the applicant at the hearing of the proceedings before it, the Court of Criminal Appeal was endeavouring to repair the inadequacies in the original sentencing proceedings which had occurred, including in the order of indefinite imprisonment. I am also aware that counsel then appearing for the applicant raised no objection to what was done. It may well be that the learned sentencing judge was subject to time constraints. However, there were other options open to her. These would have included sentencing the applicant to the determinate sentence which she provided and adjourning to a later time or another court the consideration of the imposition of an indefinite sentence. Where there was any possibility that an order of indefinite imprisonment might be made, it was essential that the procedures observed should be regular and scrupulously thorough and that the materials, including the pre-sentence reports, should be as adequate and complete as fairness to the prisoner required[17].

The same must be said in relation to the procedures adopted by the Court of Criminal Appeal in such a case. As Hayne JA pointed out in Moffatt[18]_,_it is fundamental that the power to order indefinite imprisonment should be sparingly exercised and then only in clear cases. I would add that it is fundamental that it should only be exercised following a most careful hearing in which all relevant material is before the judge or judges responsible for making such an order. It is not something to be hurried. It is not a course to be dealt with on materials known to be incomplete or otherwise insufficient.

The foregoing are my reasons for joining in the proposed orders foreshadowed by Gaudron J at the conclusion of the hearing on 6 August 1999 and now to be made.

[1] [1988] HCA 62; (1988) 165 CLR 611.

[3] [1988] HCA 62; (1988) 165 CLR 611 at 618.

[5] Moffatt [1998] 2 VR 229 at 255 per Hayne JA.

[6] [1999] HCA 29; (1999) 73 ALJR 1007; 163 ALR 483.

[7] Thompson v The Queen unreported, Court of Criminal Appeal of Western Australia, 19 October 1998 at 16 ("Appeal judgment").

[10] cf R v Lucky (1974) 12 SASR 136 at 139; R v Carlstrom [1977] VicRp 44; [1977] VR 366 at 367; Fox and Freiberg, Sentencing: State and Federal Law in Victoria, 2nd ed (1999) at 161.

[12] cf Lowndes v The Queen [1999] HCA 29; (1999) 73 ALJR 1007 at 1014-1015; [1999] HCA 29; 163 ALR 483 at 493.

[17] cf R v Rose noted (1978) 52 Australian Law Journal 98 cited Fox and Freiberg, Sentencing: State and Federal Law in Victoria, 2nd ed (1999) at 160.

[18] [1998] 2 VR 229 at 255; cf Fox and Freiberg, Sentencing: State and Federal Law in Victoria, 2nd ed (1999) at 658-662.

Thompson v R [1999] HCA 43; 73 ALJR 1319; 165 ALR 219 (2 September 1999)

Thompson v R [1999] HCA 43; 73 ALJR 1319; 165 ALR 219

At a glance

Court

Decision date

Before

Source

Judgment (26 paragraphs)

Parties

Legislation Cited (2)

Cases Cited (4)

Thompson v R [1999] HCA 43; 73 ALJR 1319; 165 ALR 219 (2 September 1999)