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Slater v The King

Slater v The King

Case [2024] NSWCCA 210 15 November 2024

Criminal Liability

Recklessness

Sentencing

Knowledge of Lack of Consent

Non-Custodial Sentence

Criminal Law

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Slater v R [2024] NSWCCA 210
Hearing dates: 18 September 2024
Date of orders: 15 November 2024
Decision date: 15 November 2024
Before: Harrison CJ at CL at [1];
Davies J at [2];
Rigg J at [3]
Decision:
(1) Grant leave to appeal;
(2) Dismiss the appeal.

Catchwords:
CRIMINIAL LAW – sentence appeal – sexual assault – Crimes Act s 61I – knowledge that victim does not consent to sexual activity – recklessness – whether error by sentencing judge in finding that the recklessness was to at least a moderate degree and objective seriousness of the offence fell below the mid-range but not at the bottom of the range – whether error by sentencing judge in not finding that a non-custodial sentence was available due to the offender’s idiosyncratic circumstances

Legislation Cited:
Crimes (Sentencing Procedure) Act1999 (NSW), ss 5, 8, 21A, 54A, 54B
Crimes Act 1900 (NSW), ss 61HA, 61HE, 61I
Criminal Appeal Act 1912 (NSW), s 5

Cases Cited:
Banditt v R (2005) 224 CLR 262; [2005] HCA 80
Cornish v R [2024] NSWCCA 177
Fisher v R; R v Fisher [2021] NSWCCA 91
House v King (1936) 55 CLR 499; [1936] HCA 40
Kelly v R [2022] NSWCCA 189
Lee v R [2023] NSWCCA 203
Mulato v R [2006] NSWCCA 282
Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39
R v Alcazar [2017] NSWCCA 51
R v Ibrahim [2021] NSWCCA 296
Saffin v R [2020] NSWCCA 246
Tuuholoaki v R [2024] NSWCCA 135

Category: Principal judgment
Parties: Sean Joseph Slater (Applicant)
Rex (Respondent)
Representation:
Counsel:
D Dalton SC (Applicant)
E Wilkins SC (Respondent)
Solicitors:
Hanna Legal (Applicant)
Solicitor for Public Prosecutions (Respondent)

File Number(s): 2022/00139429
Publication restriction: Nil
Decision under appeal

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Criminal

Date of Decision:

17 May 2024

Before:

O’Brien DCJ

File Number(s):

2022/00139429

JUDGMENT

HARRISON CJ AT CL: I agree with Rigg J.
DAVIES J: I agree with Rigg J.
RIGG J: The applicant, Mr Sean Slater, seeks leave pursuant to s 5(1)(c) of the Criminal Appeal Act 1912 (NSW) to appeal against the sentence of imprisonment imposed on him by his Honour O’Brien DCJ in the District Court of New South Wales at Nowra on 17 May 2024, following a guilty plea entered 10 days earlier.
The applicant pleaded guilty to one count of sexual intercourse without consent, contrary to s 61I Crimes Act1900 (NSW). This offence has a maximum penalty of 14 years imprisonment and a standard non-parole period of 7 years. His Honour imposed a sentence of 23 months imprisonment commencing on 7 May 2024 and expiring on 6 April 2026 with a non-parole period of 13 months expiring on 6 June 2025.
There are two grounds of appeal; namely:

Ground 1: His Honour erred in finding that the offence involved recklessness to a moderate degree and the objective criminality of the offence fell…

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 Slater v The King

Details

AGLC: Slater v The King [2024] NSWCCA 210
Case: [2024] NSWCCA 210
Decision Date: 15 November 2024

CaseChat Overview and Summary

Slater, the appellant, sought leave to appeal the sentence imposed by the Court of Criminal Appeal of Queensland, challenging the conviction for sexual assault under the Crimes Act. The appellant's argument was focused on the sentencing process, particularly the determination of recklessness and the degree of objective seriousness of the offence, as well as the availability of a non-custodial sentence. The court was tasked with examining whether the sentencing judge erred in concluding that the appellant's recklessness was at least moderate and whether the objective seriousness of the offence was appropriately assessed as falling below the mid-range. Additionally, the court needed to determine if there was a mistake in the sentencing judge's failure to consider a non-custodial sentence in light of the appellant's personal circumstances.

The central issue before the court was whether the sentencing judge had made an error in assessing the degree of recklessness exhibited by the appellant, and whether this assessment led to an incorrect conclusion regarding the appropriate range for the sentence. Furthermore, the court had to consider whether the sentencing judge was mistaken in not recognising that a non-custodial sentence could be appropriate given the appellant's unique circumstances. The court was required to examine the sentencing principles under the Crimes Act and apply them to the facts of the case to determine if the sentence imposed was lawful and just.

The court held that there was no error in the sentencing judge's determination that the appellant's recklessness was at least moderate. The evidence supported the conclusion that the appellant was reckless, and this finding was consistent with the statutory requirements. The court also determined that the sentencing judge correctly assessed the objective seriousness of the offence, which was appropriately placed below the mid-range. Regarding the availability of a non-custodial sentence, the court found that the sentencing judge had considered the appellant's personal circumstances but was satisfied that a custodial sentence was necessary to achieve the purposes of sentencing. The appeal was dismissed as the court found no basis to interfere with the sentence imposed by the lower court.

In conclusion, the court upheld the sentence imposed by the sentencing judge, finding no error in the assessment of recklessness or the determination of the appropriate range for the sentence. The court also found that the sentencing judge had appropriately considered the appellant's personal circumstances and correctly concluded that a non-custodial sentence was not suitable in this instance. The appeal was therefore dismissed, and the original sentence stood.

Orders