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[1999] HCA 43
appellant. Time to apply for special leave was extended, special leave was granted, and the appeal was allowed in part. The Court of Criminal Appeal’s dismissal order was set aside; the indefinite sentence...
The High Court set aside Thompson’s indefinite sentence because the sentencing judge had relied on reports that the Court of Criminal Appeal found were prepared in haste and included an incomplete psychological assessment. The Court of Criminal Appeal’s decision to commission new assessments during the appeal did not cure the problem by allowing it to combine sentence review and resentencing without a proper, distinct hearing. The High Court required the matter to return to the Court of Criminal Appeal, but did not decide whether that court should resentence Thompson or send the matter to a single judge.
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2,258 words · generated 05/10/2026
Jason Anthony Thompson was convicted by a jury in the District Court of Western Australia of entering a house with intent to commit an offence and attempted child stealing. The sentencing judge imposed ten years imprisonment for the first count and five years for the second, to be served concurrently. She also ordered that Thompson be imprisoned indefinitely after completing those terms, relying on s 98 of the Sentencing Act 1995 (WA) ([8]).
2 cited instruments linked from this judgment.
Thompson appealed against his convictions and sought leave to appeal against sentence in the Court of Criminal Appeal of Western Australia. The conviction appeal was dismissed. On sentence, the Court granted leave but dismissed the appeal ([9]). The High Court proceeding concerned the sentence, not the conviction.
One challenge in the Court of Criminal Appeal was that the pre-sentence and psychological reports were inadequate. The grounds argued that they had been prepared in insufficient time, that the high-risk conclusion relied almost exclusively on old reports and short interviews, and that no psychological evaluation had been undertaken ([11]). The Court of Criminal Appeal accepted that the reports were prepared “in some haste” and that the psychological assessment was “not comprehensive”. It then commissioned further psychological and psychiatric assessments during the appeal ([12]).
The High Court was concerned about how those new assessments had been used. It paused the special-leave hearing to obtain the transcript and other material about the Court of Criminal Appeal’s process. That material showed that the reports had been provided to both parties and further written submissions exchanged, but there had been no further oral hearing. The applicant’s counsel in the High Court accepted that Thompson had known about the material; the issue was not that the reports had been concealed from him ([13]-[14]).
The High Court ultimately extended time, granted special leave, allowed the appeal in part, set aside the order dismissing the appeal to the Court of Criminal Appeal, and set aside the indefinite sentence. It remitted the matter to the Court of Criminal Appeal, without deciding whether that court should resentence Thompson itself or remit the matter to a single judge ([3]-[4], [17]).
The first reason was the inadequacy of the original sentencing materials. Gaudron and Hayne JJ considered that the Court of Criminal Appeal’s finding about the rushed reports and incomplete psychological assessment “leads inevitably” to the conclusion that the sentencing decision miscarried ([2]). That was enough to require the appeal to be allowed so far as it concerned indefinite imprisonment. The respondent’s concession supported that disposition ([1]-[3]).
Kirby J placed the issue within the exceptional character of indefinite imprisonment. Referring to Chester v The Queen, he recalled that the power should be confined to “very exceptional cases” where its exercise is demonstrably necessary ([5]). He also referred to R v Moffatt, which explained that indefinite imprisonment goes beyond punishment proportionate to the offence of conviction, making the power and the cases warranting it exceptional ([6]). These authorities inform why procedural care matters: the sentence has consequences beyond the determinate punishment for the offences.
The second reason concerned the distinction between appellate review and resentencing. The Court of Criminal Appeal had identified defects in the first-instance process and obtained further reports. Kirby J said those reports would have been relevant to procedures appropriate to resentencing, once the deficiencies at first instance had been exposed. They did not remove the need first to consider whether the original sentencing process was flawed and then to determine what should happen next ([15]-[16]).
The Court did not finally decide whether s 697 of the Criminal Code (WA) authorised the Court of Criminal Appeal to commission such reports. Kirby J acknowledged that the provision used broad language and that, in some circumstances, new reports might be received as “argumentative material” to test a submission that existing sentencing evidence was inadequate or ambiguous. But he distinguished that possibility from the circumstances here. The Court of Criminal Appeal had itself recognised that the original assessment was not comprehensive, and the further assessments related to resentencing ([16]).
For any resentencing involving possible indefinite imprisonment, the prisoner had to be fully heard. Kirby J considered that an oral hearing directed specifically to resentencing would ordinarily be desirable before such an order was made. He concluded that “it was not permissible to compress the appellate procedures” in the way the Court of Criminal Appeal had done ([16]). This conclusion did not rest on a finding that Thompson was unaware of the reports. Rather, it concerned the nature and adequacy of the process used to decide the appeal and possible resentencing.
Finally, Kirby J emphasised that time pressure did not justify abbreviated procedures. The sentencing judge may have faced constraints, but other procedural options were open, including imposing the determinate sentence and adjourning the question of indefinite imprisonment ([18]). Where an indefinite order might be made, the procedures had to be regular and “scrupulously thorough”, and the material had to be adequate and complete as fairness required ([18]-[19]).
The judgment situates its reasoning in existing authority rather than announcing that indefinite sentences are categorically unavailable. Chester v The Queen had already stated that the power should be confined to very exceptional cases where its exercise is demonstrably necessary ([5]). Moffatt supplied an explanation for that restrictive approach: an indefinite sentence goes beyond punishment proportionate to the convicted offence, so both the power and the cases justifying it are exceptional ([6]).
Kirby J also referred to Lowndes v The Queen, which had reiterated Chester and Moffatt and emphasised that appellate courts must comply with the rules governing review of a sentence and substitution of indefinite imprisonment ([7]). Lowndes was decided after the orders challenged in Thompson’s case, a timing point expressly noted by Kirby J. The present judgment therefore uses that authority as part of its explanation of the required appellate approach, not as a basis for inventing a separate rule beyond the reasons given.
The judgment’s contribution is its application of those principles to procedure where the initial sentencing reports are deficient. It makes clear that obtaining additional reports during an appeal does not, by itself, erase the distinction between determining whether the original sentence was reached through a proper process and conducting a new sentencing exercise. If new material is relevant to resentencing, the prisoner must have a proper opportunity to address that exercise, with an oral hearing ordinarily desirable where an indefinite order is under consideration ([16]).
The decision does not settle the full scope of a Court of Criminal Appeal’s power to commission reports under s 697 of the Criminal Code (WA). Kirby J expressly left that question open, while recognising a possible role for new reports as argumentative material in some circumstances ([16]). Nor does the decision determine whether the Court of Criminal Appeal, on remittal, should itself resentence Thompson or send the matter to a single judge ([4], [17]). On the materials provided, no broader account of the law after this judgment, or later judicial treatment of it, can be established.
At [2], Gaudron and Hayne JJ wrote that the Court of Criminal Appeal’s finding about hurried preparation and an incomplete assessment “leads inevitably to the conclusion” that the sentencing decision miscarried. In plain English, once the appellate court had found the material supporting indefinite imprisonment inadequate in those ways, the indefinite sentence could not be left in place.
At [16], Kirby J said that further assessments were relevant to resentencing after the original deficiencies had been identified. He also said that a prisoner facing possible indefinite imprisonment had to be fully heard, and that an oral hearing specifically directed to resentencing would ordinarily be desirable. The practical distinction is between using an appeal to assess whether the original decision was flawed and conducting a fresh sentencing process on a sound evidentiary basis.
Kirby J’s observation at [16] about s 697 is deliberately limited. He did not rule that the Court of Criminal Appeal lacked power to obtain new reports. He said it was “conceivable” that reports could be used in some cases as argumentative material to test submissions about existing evidence. But that possibility did not justify the procedure used here, where the new assessments related to the resentencing process.
At [18], Kirby J said that where there is any possibility of indefinite imprisonment, procedures must be “regular and scrupulously thorough” and materials must be adequate and complete as fairness requires. In ordinary terms, a possible indefinite order calls for careful preparation, sufficient information, and a process that gives the prisoner a proper opportunity to be heard.
At [19], Kirby J said the power should be exercised sparingly and only in clear cases. He added: “It is not something to be hurried.” This passage reinforces that urgency or administrative pressure does not turn incomplete material into an adequate basis for an indefinite sentence.
The central fact pattern is one in which a sentencing judge imposes indefinite imprisonment after relying on pre-sentence or psychological reports later found to have been prepared hastily or to be incomplete. In Thompson, the Court of Criminal Appeal itself made those findings, including that the psychological assessment was not comprehensive ([12]). The High Court treated that finding as requiring the sentence appeal to succeed to the extent of the indefinite sentence ([2]).
The procedural aspect is most relevant where an appellate court, after identifying defects in the first-instance sentencing process, commissions new reports during the appeal and then uses them in a way that merges appellate review with resentencing. Thompson indicates that the reports’ accessibility to both parties and the exchange of written submissions do not, alone, answer whether the process was adequate. The question is whether the prisoner has been fully heard in the distinct resentencing process, especially before an indefinite order is made ([14], [16]).
The judgment also speaks to cases where time constraints affect preparation for sentencing. Kirby J acknowledged the judge’s time constraints but emphasised that possible indefinite imprisonment required careful, thorough procedures. The judgment identifies adjournment as one possible course, not as a required outcome in every case ([18]).
The decision should not be read, from this text alone, as deciding that an appellate court can never obtain fresh assessments, or that an oral hearing is invariably mandatory in every case. Kirby J expressly left the power question unresolved and said an oral hearing would “ordinarily” be desirable ([16]). Its strongest application is where the original reports are known to be inadequate and new reports are used to address the substance of a fresh indefinite-sentence decision without a distinct, sufficiently careful resentencing process.
The judgment text provides no account of later cases applying, distinguishing, approving, or disapproving Thompson. It would therefore be unsupported to describe its subsequent treatment or to state how later courts have interpreted its procedural observations.
The text does identify Lowndes v The Queen as a relevant earlier decision in the High Court’s reasoning, noting that it was decided after the orders challenged in Thompson’s case ([7]). Lowndes concerned s 98 of the Sentencing Act and reiterated the approach in Chester and Moffatt, including the need for appellate courts to follow the rules governing review of sentences and substitution of indefinite imprisonment ([7]). That is context for Thompson’s reasoning, not evidence of later treatment of Thompson itself.
The High Court’s order remitted the matter to the Court of Criminal Appeal but records no subsequent disposition on remittal ([4], [17]). Accordingly, the judgment supplied here supports analysis of its reasoning and immediate order only. A separate, sufficiently sourced case-history search would be needed to describe later judicial treatment.
The most explicit open question is the scope of the Court of Criminal Appeal’s authority under s 697 of the Criminal Code (WA) to commission further psychological and psychiatric reports during an appeal. Kirby J deliberately declined to answer it finally. He left open whether reports might be received in some circumstances as argumentative material to test a submission concerning existing sentencing evidence ([16]).
A second open question is the proper forum for resentencing. The High Court remitted the matter to the Court of Criminal Appeal but stated that its order did not express a view on whether that court could or should deal with the matter itself or remit it to a single judge ([4]). Kirby J similarly described the proposed orders as leaving that choice for the Court of Criminal Appeal ([17]).
The judgment also does not define every circumstance in which an oral hearing is necessary on resentencing. It says an oral hearing specifically directed to resentencing would “ordinarily” be desirable before an indefinite order, leaving room for fact-sensitive questions about procedure ([16]). Nor does it prescribe a particular form or scope for a comprehensive psychological assessment. The text establishes that the assessment in this case was not comprehensive, but it does not provide a checklist of required tests or report content ([12], [16]).
Finally, the decision does not determine whether Thompson should receive an indefinite sentence after a proper resentencing process. It sets aside the existing indefinite sentence because of the defects identified and remits the matter for further consideration. The outcome of any later process is not stated in the supplied judgment.
This is general legal information, not legal advice. Zoe can make mistakes. Before acting on or relying on this analysis, have a qualified Australian lawyer check it.
Source: the High Court of Australia (www.hcourt.gov.au). Converted to plain text by ZoeLaw. Not the official version.
HIGH COURT OF AUSTRALIA
GAUDRON, KIRBY AND HAYNE JJ
JASON ANTHONY THOMPSON APPLICANT
AND
THE QUEEN RESPONDENT
Thompson v The Queen [1999] HCA 43
2 September 1999
P60/1998
ORDER
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.
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 was concerned with the imposition of an indefinite sentence.
Given the respondent's concession, the appropriate course is to extend time, grant special leave to appeal, allow the appeal, set aside the order of the Court of Criminal Appeal dismissing the appeal to it and, in lieu, order that the appeal be allowed in part, the indefinite sentence imposed on the applicant on 20 March 1998 be set aside and the matter be remitted to the Court of Criminal Appeal to be dealt with conformably with these reasons.
In remitting the matter to the Court of Criminal Appeal, this Court is not to be taken as expressing any view as to whether that Court can or should deal with the matter or can or should remit it to a single judge.
KIRBY J. In Chester v The Queen1, commenting on the precursor2 to s 98 of the Sentencing Act 1995 (WA) ("the Sentencing Act") which provides for a convicted offender to be imprisoned indefinitely, this Court observed that the exercise of such a power "should be confined to very exceptional cases where the exercise of the power is demonstrably necessary"3.
In R v Moffatt4, where the history of such legislation in Australia and elsewhere was examined, the reasons for such an approach were elaborated. It was explained that the approach was required because an indefinite sentence goes beyond punishing the offender to an extent proportionate to the crime of which the offender has been convicted. The power conferred upon the Court is therefore exceptional, as are the cases warranting the exercise of such power.
A sentence of indefinite imprisonment and appeal
The present proceedings originally came before the Court as an application by Mr Jason Thompson (the applicant) for special leave to appeal from that part of the judgment and orders of the Court of Criminal Appeal of Western Australia which concerned his sentence. After a trial by jury in the District Court of Western Australia upon one count of entering a house with intent to commit an offence and another of attempted child stealing, the applicant was found guilty of both counts and convicted. He was sentenced by the primary judge (Yeats DCJ) to a term of ten years imprisonment in respect of the first count and five years imprisonment in respect of the second. Her Honour ordered that the two sentences be served concurrently. Pursuant to s 98 of the Sentencing Act, she also ordered that the applicant be imprisoned indefinitely after completing the foregoing terms of imprisonment.
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 dismissed7. 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 dismissed8. 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 s 189(2) of the Young Offenders Act 1994 (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 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 unaware10.
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 judge11. 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 procedures12. 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 Code15 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". 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.
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 required17.
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 Moffatt18*,*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.
(1988) 165 CLR 611. ↩
Criminal Code (WA), s 662. ↩
(1988) 165 CLR 611 at 618. ↩
[1998] 2 VR 229. ↩
Moffatt [1998] 2 VR 229 at 255 per Hayne JA. ↩
(1999) 73 ALJR 1007; 163 ALR 483. ↩
Thompson v The Queen unreported, Court of Criminal Appeal of Western Australia, 19 October 1998 at 16 ("Appeal judgment"). ↩
Appeal judgment at 30. ↩
Appeal judgment at 25. ↩
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. ↩
Appeal judgment at 25. ↩
cf Lowndes v The Queen (1999) 73 ALJR 1007 at 1014-1015; 163 ALR 483 at 493. ↩
Criminal Code (WA), s 689(3).
Thompson
R [1999] HCA 43; 73 ALJR 1319; 165 ALR 219
(1988) 165 CLR 611
(1999) 73 ALJR 1007
(1974) 12 SASR 136
Time to apply for special leave was extended, special leave was granted, and the appeal was allowed in part. The Court of Criminal Appeal’s dismissal order was set aside; the indefinite sentence imposed on 20 March 1998 was set aside; and the matter was remitted to the Court of Criminal Appeal to be dealt with conformably with the reasons. The High Court expressed no view on whether the Court of Criminal Appeal could or should resentence Thompson itself or remit the matter to a single judge ([3]-[4]).
More recently in Lowndes v The Queen6, in an appeal concerning s 98 of the Sentencing Act, this Court, reiterating what was said in Chester and Moffatt, emphasised the need for appellate courts to proceed in compliance with the rules governing them when asked to review a sentence passed on a prisoner at trial and to substitute for that sentence an order of indefinite imprisonment. Lowndes was a case heard and decided after the orders challenged in these proceedings were made.
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.
Appeal judgment at 25. ↩
Criminal Code (WA), s 697. ↩
Appeal judgment at 25. ↩
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. ↩
[1998] 2 VR 229 at 255; cf Fox and Freiberg, Sentencing: State and Federal Law in Victoria, 2nd ed (1999) at 658-662. ↩