Chester v The Queen [1988] HCA 62

High Court of Australia Mason C.J. Brennan, Deane, Toohey and Gaudron JJ. Chester v The Queen [1988] HCA 62

ORDER Application for an extension of time in which to apply for special leave to appeal granted. Application for special leave to appeal granted. Appeal allowed. Set aside the order of the Court of Criminal Appeal dismissing the appeal against the direction by Smith J. under s. 662(a) of the Criminal Code W.A. and in lieu thereof:

(1) allow the appeal to the Court of Criminal Appeal; and

(2) set aside the direction under s. 662(a).

Remit the matter to the Court of Criminal Appeal to determine whether the finite term of imprisonment and the minimum term should be increased and, if so, to what extent.

Cur. adv. vult.

The Court delivered the following written judgment:—

Dec. 6 Mason C.J., Brennan, Deane, Toohey and Gaudron JJ.

This application for special leave to appeal relates to a direction given by the sentencing judge (Smith J.) under s. 662(a) of the Criminal Code W.A. that the applicant, on the expiration of the finite term of imprisonment to which he was sentenced, be detained during the Governor's pleasure. The circumstances giving rise to the application may be stated shortly.

On 4 September 1988 the applicant pleaded guilty to two counts in an indictment. The two counts were: 1. That on 9 May 1987 at Osborne Park the applicant unlawfully drove a Suzuki motor vehicle without the consent of the owner or person in charge thereof; and 2. That on 11 May 1987 at Innaloo the applicant stole from Jacinta Michelle O'Connor with threats of actual violence the sum of $19,000 in money, the property of the National Australia Bank Limited, and that at the time the applicant was armed with a dangerous weapon, namely a knife. Smith J., after hearing a plea in mitigation by counsel for the applicant, called for a pre-sentence report before passing sentence.