Legal Research
Cases
R v Slattery

R v Slattery

Case [2017] NSWDC 373 18 December 2017

Special Circumstances

General Deterrence

Criminal Law

No judgment structure available for this case.

Type to search within this case.

District Court

New South Wales

Amendment notes

Medium Neutral Citation: R v Slattery [2017] NSWDC 373
Hearing dates: 22 September 2017, 27 October 2017, 30 October 2017 and 15 December 2017; Written submissions (Crown): 22 September 2017, and 17 December 2017; Written submissions (Defence): 18 December 2017
Date of orders: 18 December 2017
Decision date: 18 December 2017
Jurisdiction: Criminal
Before: Hatzistergos DCJ
Decision:
The offender is sentenced to an aggregate term of imprisonment pursuant to s 53A of the 1999 Act of 3 years and 10 months, comprising a non-parole period of 2 years and 4 months to date from 18 December 2017 to 17 April 2020 and an additional term of 1 year and 6 months to date from 18 April 2020 to 17 October 2020, during which the offender is eligible to be released on parole.

Catchwords: CRIMINAL LAW – SENTENCE – offender pleaded guilty to four counts of indecent assault against persons under the age of 16 years – whether the fact that one offence could have been dealt with in the Local Court has a significant bearing on the exercise of sentencing discretion – no prior recorded convictions – remorse established – low likelihood of reoffending – excellent prospects of rehabilitation – special circumstances established – impact of delay in sentencing on the question of general deterrence
Legislation Cited: Crimes Act 1900 (NSW) ss 61E, 61M, 578A
Crimes (Sentencing Procedure) Act 1999 (NSW) ss 3A, 5, 21A, 22, 33, 44, 53A
Cases Cited: AK v R [2016] NSWCCA 238
Attorney General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 (NSW) (No 1) of 2002 (2002) 56 NSWLR 146; [2002] NSWCCA 518
Bains v R [2016] NSWCCA 132
Denham v R [2016] NSWCCA 309
Featherstone v R [2008] NSWCCA 71
MC v R [2017] NSWCCA 316
MLP v R [2006] NSWCCA 271; (2006) 164 A Crim R 93
MPB v R [2013] NSWCCA 213
Peiris v R [2014] NSWCCA 58
PWB V R [2011] NSWCCA 84
PWB v R [2011] NSWCCA 84
R v AJP [2004] NSWCCA 434; (2004) 150 A Crim R 575
R v Baxter (Court of Criminal Appeal, 26 May 1994, unreported)
R v Borkowski [2009] NSWCCA 182
R v Brian Joseph Spillane [2016] NSWDC 337
R v DCM (Court of Criminal Appeal, 26 October 1993, unreported)
R v Hall [2017] NSWCCA 313
R v Moon [2000] NSWCCA 534
R v PGM [2008] NSWCCA 172; (2008) 187 A Crim R 152
R v Staupe [2015] NSWCCA 175
R v Thomson and Houlton [2000] NSWLR 383
R v Todd [1982] NSWLR 517
Zreik v R (2012) 223 A Crim R 460
Category: Sentence
Parties: Philip David Slattery
Regina
Representation: Counsel:
Ms Moody (Crown)
Mr Makin (Defence)

File Number(s): 2016/375884, 2016/376028
Publication restriction: Pursuant to section 578A Crimes Act 1900 (NSW) any matter which identifies the complainants or any matter which is likely to identify the complainants are not to be published. They are referred to in these…

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.

Continue reading R v Slattery

Details

AGLC: R v Slattery [2017] NSWDC 373
Case: [2017] NSWDC 373
Decision Date: 18 December 2017

CaseChat Overview and Summary

The case of R v Slattery involved the defendant pleading guilty to four counts of indecent assault against individuals under the age of 16 years. The court was tasked with determining an appropriate sentence. The defendant had no prior criminal record, demonstrated remorse, and had an excellent prognosis for rehabilitation, with a low likelihood of reoffending. Special circumstances were also presented, and the court had to consider the impact of the delay in sentencing on the principle of general deterrence.

The legal issues before the court included the appropriate exercise of sentencing discretion, particularly given the nature of the offences and the fact that one offence could have been dealt with in the Local Court. The court needed to weigh the severity and nature of the offences, the defendant's remorse and prospects for rehabilitation, and the implications of delay in sentencing. The court also considered whether the delay affected the principle of general deterrence.

The court determined that the appropriate sentence should reflect the seriousness of the offences, the defendant's remorse, and the low risk of reoffending. It found that the special circumstances and the delay in sentencing did not significantly alter the exercise of its discretion. The court concluded that an aggregate term of imprisonment was warranted, taking into account all relevant factors. The sentence was set at three years and ten months, with a non-parole period of two years and four months, followed by an additional term of one year and six months during which the offender would be eligible for parole.

The court's final orders were that the offender is to serve an aggregate term of imprisonment of three years and ten months, with a non-parole period of two years and four months, commencing from 18 December 2017 and ending on 17 April 2020. The additional term of one year and six months would commence from 18 April 2020 and end on 17 October 2020, during which the offender is eligible for release on parole.

Orders

Orders of the court

The offender is sentenced to an aggregate term of imprisonment pursuant to s 53A of the 1999 Act of 3 years and 10 months, comprising a non-parole period of 2 years and 4 months to date from 18 December 2017 to 17 April 2020 and an additional term of 1 year and 6 months to date from 18 April 2020 to 17 October 2020, during which the offender is eligible to be released on parole.

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

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citations

AGLC Citation

R v Slattery [2017] NSWDC 373

Most Recent Citation

Environment Protection Authority v Nalco Australia Pty Ltd [2007] NSWLEC 831

Cases citing this decision · 5 of 5 shown

WW v The King
[2023] NSWCCA 311

…n dangerously and it is the duty of the courts to seek to deter the behaviour proscribed by the statute: Regina v MacIntyre (1988) 38 A Crim R 135; Regina v Slattery (1996) 90 A Crim R 519.”…
NSW Police v Nash
[2016] NSWLC 3 Para 22

…In R v Slattery (1996) 90 A Crim R 519 at 524, Hunt CJ at CL said in relation to increased penalties for dangerous driving causing death matters:…
Environment Protection Authority v Caltex Refineries (NSW) Pty Ltd
[2008] NSWLEC 194

…Where a penalty has been increased it is not appropriate to automatically increase any fine by the same proportionate amount. In R v Slattery (1996) 90 A Crim R 519, the Chief Judge of the Criminal Division, Hunt J, said in the Court of Criminal Appeal, at 524: The action of the legislature in almost tripling the maxi…
Environment Protection Authority v Nalco Australia Pty Ltd
[2007] NSWLEC 831

…ince been increased. Where a penalty has been increased it is not appropriate to automatically increase any fine by the same proportionate amount. In R v Slattery (1996) 90 A Crim R 519, the Chief Judge of the Criminal Division, Hunt J, said in the Court of Criminal Appeal, at 524:…
Regina v Bishop
[2002] NSWCCA 263

…21. In R v Slattery (1996) 90 A Crim R 519 at 522 Hunt CJ at CL said:…

View all 5 citing cases →

Cases cited in this decision · 27 of 27 shown

R v Hall
[2017] NSWCCA 313 Para 102

…ms that the Court can take into account the offender’s subsequent progress by way of rehabilitation. 23. R v Todd [1982] NSWLR 517, 519 24. [2017] NSWCCA 313 at [119]…
MC v R
[2017] NSWCCA 316 Para 139

…overlapped in various sequences. It is necessary to take this into account whilst not overlooking the separate character of each of the offences. 38. [2017] NSWCCA 316 at [44] 39. [2016] NSWCCA 309 at [111]…
Denham v R
[2016] NSWCCA 309 Para 47

…4; (2004) 150 A Crim R 575 at [25] 4. [2006] NSWCCA 271; (2006) 164 A Crim R 93 at [22] 5. [2008] NSWCCA 172; (2008) 187 A Crim R 152 at [32]-[37] 6. [2016] NSWCCA 309 at [96]…
Ak v R
[2016] NSWCCA 238 Para 59

…The approach to be taken in circumstances of such offending was summarised by Johnson J in AK v R :-[11] 11. [2016] NSWCCA 238 at [66]-[77] (with whom Beazley P and Harrison J agreed).…
R v Brian Joseph Spillane
[2016] NSWDC 337 Para 127

…. The parties accepted that the relevant practice at the time was an additional term of around a third and a half. [36] 36. R v Brian Joseph Spillane [2016] NSWDC 337 at [72]…
Baines v R
[2016] NSWCCA 132

…on under s 37 of the Crimes (Sentencing Procedure) Act 1999 (NSW) (No 1) of 2002 (2002) 56 NSWLR 146; [2002] NSWCCA 518 Bains v R [2016] NSWCCA 132 Denham v R [2016] NSWCCA 309 Featherstone v R [2008] NSWCCA 71 MC v R [2017] NSWCCA 316 MLP v R [2006] NSWCCA 271; (2006) 164 A Crim R 93 MPB v R [2013] NSWCCA 213 Peiri…
Henderson v R
[2016] NSWCCA 8

…few subsequent cases. There are references in the judgments of Adams J in Versi v R [2013] NSWCCA 206 at [185] and of RS Hulme AJ in Henderson v R [2016] NSWCCA 8; 256 A Crim R 519 at [86] but they were each in dissent. The others were AJB v R [2007] NSWCCA 51; 169 A Crim R 32, GRD v R [2009] NSWCCA 149, PWB v R…
R v Stoupe
[2015] NSWCCA 175 Para 91

…st SN. In light of the provision of s 21A(5A) of the 1999 Act no submission to the contrary was made on behalf of the offender. [18] 18. R v Staupe [2015] NSWCCA 175 at [83]-[87]…
RL v R
[2015] NSWCCA 106

…issent. The others were AJB v R [2007] NSWCCA 51; 169 A Crim R 32, GRD v R [2009] NSWCCA 149, PWB v R [2011] NSWCCA 84; 216 A Crim R 305 and RL v R [2015] NSWCCA 106. [72] Each of these cases had some unusual features over and above a lack of further offending in the period between the offences and the sentencing an…
Peiris v R
[2014] NSWCCA 58 Para 121

…The offences were 4 years apart, with the first occurring in 2010 when the victim was aged 10 years. The charges were not representative counts. 35. [2014] NSWCCA 58…
Versi v R
[2013] NSWCCA 206 Para 185

…this Court is aware. The comment has been referred to in only a few subsequent cases. There are references in the judgments of Adams J in Versi v R [2013] NSWCCA 206 at [185] and of RS Hulme AJ in Henderson v R [2016] NSWCCA 8; 256 A Crim R 519 at [86] but they were each in dissent. The others were AJB v R [2007] NS…
MPB v R
[2013] NSWCCA 213 Para 121

…luding Featherstone v R , [29] PWB v R [30] and MPB v R . [31] 29. [2008] NSWCCA 71 at [36] 30. [2011] NSWCCA 84 at [68] and [78]-[84] (RS Hulme) 31. [2013] NSWCCA 213 at [103] (Garling J)…
PWB v R
[2011] NSWCCA 84 Para 61

…ity for the purposes s 21A(2)(l) of the 1999 Act was engaged . Nevertheless these matters are of relevance to objective gravity. [12] 12. PWB V R [2011] NSWCCA 84 at [12]…
Giles v Director of Public Prosecutions (NSW)
[2009] NSWCCA 308

…n those in the indictment, or as a matter of aggravation of those charges: R v JCW at 478 [68]. [69] In Giles v Director of Public Prosecutions (NSW) [2009] NSWCCA 308; 198 A Crim R 395, Basten JA considered (at 408 [67]) that the undisputed fact that the offender committed numerous additional offences (similar to t…
R v Assaad
[2009] NSWCCA 182 Para 105

…it is acknowledged that that he is entitled to a 25% discount. [25] 25. s 22 of the 1999 Act; R v Thomson and Houlton [2000] NSWLR 383; R v Borkowski [2009] NSWCCA 182 at [32]…
GRD v R
[2009] NSWCCA 149

…son v R [2016] NSWCCA 8; 256 A Crim R 519 at [86] but they were each in dissent. The others were AJB v R [2007] NSWCCA 51; 169 A Crim R 32, GRD v R [2009] NSWCCA 149, PWB v R [2011] NSWCCA 84; 216 A Crim R 305 and RL v R [2015] NSWCCA 106. [72] Each of these cases had some unusual features over and above a lack of f…
R v PGM
[2008] NSWCCA 172 Para 47

…erence was also made to Denham v R. [6] 3. [2004] NSWCCA 434; (2004) 150 A Crim R 575 at [25] 4. [2006] NSWCCA 271; (2006) 164 A Crim R 93 at [22] 5. [2008] NSWCCA 172; (2008) 187 A Crim R 152 at [32]-[37] 6. [2016] NSWCCA 309 at [96]…
Featherstone v R
[2008] NSWCCA 71 Para 121

…The Crown for its part referred me to a number of cases in this regard including Featherstone v R , [29] PWB v R [30] and MPB v R . [31] 29. [2008] NSWCCA 71 at [36] 30. [2011] NSWCCA 84 at [68] and [78]-[84] (RS Hulme) 31. [2013] NSWCCA 213 at [103] (Garling J)…
AJB v R
[2007] NSWCCA 51

…A 206 at [185] and of RS Hulme AJ in Henderson v R [2016] NSWCCA 8; 256 A Crim R 519 at [86] but they were each in dissent. The others were AJB v R [2007] NSWCCA 51; 169 A Crim R 32, GRD v R [2009] NSWCCA 149, PWB v R [2011] NSWCCA 84; 216 A Crim R 305 and RL v R [2015] NSWCCA 106. [72] Each of these cases had some…
MLP v R
[2006] NSWCCA 271 Para 47

…MLP v R [4] and R v PGM . [5] In oral submissions reference was also made to Denham v R. [6] 3. [2004] NSWCCA 434; (2004) 150 A Crim R 575 at [25] 4. [2006] NSWCCA 271; (2006) 164 A Crim R 93 at [22] 5. [2008] NSWCCA 172; (2008) 187 A Crim R 152 at [32]-[37] 6. [2016] NSWCCA 309 at [96]…
R v AJP
[2004] NSWCCA 434 Para 47

…s. Reference in this regard was made to R v AJP , [3] MLP v R [4] and R v PGM . [5] In oral submissions reference was also made to Denham v R. [6] 3. [2004] NSWCCA 434; (2004) 150 A Crim R 575 at [25] 4. [2006] NSWCCA 271; (2006) 164 A Crim R 93 at [22] 5. [2008] NSWCCA 172; (2008) 187 A Crim R 152 at [32]-[37] 6. […
Re Attorney-General's Application (No 1 of 2002) (NSW)
[2002] NSWCCA 518 Para 138

…n CJ in Attorney General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 (NSW) (No 1) of 2002. [37] 37. (2002) 56 NSWLR 146; [2002] NSWCCA 518…
R v MJR
[2002] NSWCCA 129

…with the general question of sentencing for historical offences. This passage was approved in R v MJR (2002) 54 NSWLR 368 at 384 [107]; [2002] NSWCCA 129 (Sully J, Spigelman CJ, Grove J and Newman AJ agreeing). This case involved a five-judge bench of this Court convened to consider the question of sentencing for hi…
R v MJK
[2001] NSWCCA 325

…in the context of Howie J dealing with the general question of sentencing for historical offences. This passage was approved in R v MJR (2002) 54 NSWLR 368 at 384 [107]; [2002] NSWCCA 129 (Sully J, Spigelman CJ, Grove J and Newman AJ agreeing). This case involved a five-judge bench of this Court convened to consider t…
R v Moon
[2000] NSWCCA 534

…eph Spillane [2016] NSWDC 337 R v DCM (Court of Criminal Appeal, 26 October 1993, unreported) R v Hall [2017] NSWCCA 313 R v Moon [2000] NSWCCA 534 R v PGM [2008] NSWCCA 172; (2008) 187 A Crim R 152 R v Staupe [2015] NSWCCA 175 R v Thomson and Houlton [2000] NSWLR 383 R v Todd [1982] NSWLR 517 Zreik v R (2012) 223 A…
R v JCW
[2000] NSWCCA 209

…this case in approaching sentencing for representative counts. 69 The law to be applied, in those circumstances, remains that stated in R v JCW [2000] NSWCCA 209; 112 A Crim R 466. Applying that principle, the Court should bear in mind that the present offences were not isolated offences against JH: R v JCW at 478 […
Veen v The Queen
[1979] HCA 7

…f the offence: Dodd (1991) 57 A Crim R 549, and be proportional to the criminality involved in the offence committed: Veen v The Queen(1979) 143 CLR 458. Whether the sentence to be imposed meets these criteria will be determined principally by a consideration of the nature of the criminal conduct as viewed against th…

Legislation cited in this decision · 3

Crimes (Sentencing Procedure) Act 1999 (NSW)
21A, 22, 33, 3A, 44, 5, 53A 8 mentions (from Para 8)
Crimes Act 1900 (ACT)
578A, 61E, 61M 4 mentions (from Para 2)
Sentencing Act 1989 (NSW)
1 mention (from Para 128)

Medium Neutral Citation:	R v Slattery [2017] NSWDC 373
Hearing dates:	22 September 2017, 27 October 2017, 30 October 2017 and 15 December 2017; Written submissions (Crown): 22 September 2017, and 17 December 2017; Written submissions (Defence): 18 December 2017
Date of orders:	18 December 2017
Decision date:	18 December 2017
Jurisdiction:	Criminal
Before:	Hatzistergos DCJ
Decision:	The offender is sentenced to an aggregate term of imprisonment pursuant to s 53A of the 1999 Act of 3 years and 10 months, comprising a non-parole period of 2 years and 4 months to date from 18 December 2017 to 17 April 2020 and an additional term of 1 year and 6 months to date from 18 April 2020 to 17 October 2020, during which the offender is eligible to be released on parole.
Catchwords:	CRIMINAL LAW – SENTENCE – offender pleaded guilty to four counts of indecent assault against persons under the age of 16 years – whether the fact that one offence could have been dealt with in the Local Court has a significant bearing on the exercise of sentencing discretion – no prior recorded convictions – remorse established – low likelihood of reoffending – excellent prospects of rehabilitation – special circumstances established – impact of delay in sentencing on the question of general deterrence
Legislation Cited:	Crimes Act 1900 (NSW) ss 61E, 61M, 578A Crimes (Sentencing Procedure) Act 1999 (NSW) ss 3A, 5, 21A, 22, 33, 44, 53A
Cases Cited:	AK v R [2016] NSWCCA 238 Attorney General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 (NSW) (No 1) of 2002 (2002) 56 NSWLR 146; [2002] NSWCCA 518 Bains v R [2016] NSWCCA 132 Denham v R [2016] NSWCCA 309 Featherstone v R [2008] NSWCCA 71 MC v R [2017] NSWCCA 316 MLP v R [2006] NSWCCA 271; (2006) 164 A Crim R 93 MPB v R [2013] NSWCCA 213 Peiris v R [2014] NSWCCA 58 PWB V R [2011] NSWCCA 84 PWB v R [2011] NSWCCA 84 R v AJP [2004] NSWCCA 434; (2004) 150 A Crim R 575 R v Baxter (Court of Criminal Appeal, 26 May 1994, unreported) R v Borkowski [2009] NSWCCA 182 R v Brian Joseph Spillane [2016] NSWDC 337 R v DCM (Court of Criminal Appeal, 26 October 1993, unreported) R v Hall [2017] NSWCCA 313 R v Moon [2000] NSWCCA 534 R v PGM [2008] NSWCCA 172; (2008) 187 A Crim R 152 R v Staupe [2015] NSWCCA 175 R v Thomson and Houlton [2000] NSWLR 383 R v Todd [1982] NSWLR 517 Zreik v R (2012) 223 A Crim R 460
Category:	Sentence
Parties:	Philip David Slattery Regina
Representation:	Counsel: Ms Moody (Crown) Mr Makin (Defence)
File Number(s):	2016/375884, 2016/376028
Publication restriction:	Pursuant to section 578A Crimes Act 1900 (NSW) any matter which identifies the complainants or any matter which is likely to identify the complainants are not to be published. They are referred to in these…