Slattery v The Queen (No 2)

Case [2023] NSWCCA 171


Court of Criminal Appeal


Supreme Court


New South Wales

Medium Neutral Citation: Slattery v R (No 2) [2023] NSWCCA 171
Hearing dates: 2 December 2022
Date of orders: 7 July 2023
Decision date: 07 July 2023
Before: Bell CJ at [1];
Ward P at [43];
Wilson J at [44]
Decision:

Affirm the limiting terms imposed by Syme DCJ on 26 November 2021.

Catchwords:

MENTAL HEALTH – criminal proceedings – person unfit to be tried – special hearing – appeal from qualified findings of guilt after special hearing – where appeal successful in respect of some, but not all, qualified findings of guilt – where offender sentenced to individual limiting terms – consequential power to vary limiting terms attached to remaining undisturbed counts, even where no appeal against sentence was brought – proper approach to s 7(1) of the Criminal Appeal Act 1912 (NSW)

CRIME – appeals – appeal against conviction – where person convicted of multiple offences – appeal successful in respect of some, but not all, counts – where offender sentenced to individual sentences for each offence – consequential power to vary sentences attached to remaining undisturbed convictions, even where no appeal against sentence was brought – proper approach to s 7(1) of the Criminal Appeal Act 1912 (NSW)

Legislation Cited:

Crimes Act 1958 (Vic), s 569(1) (now repealed)

Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A(5A), 30L(4)

Criminal Appeal Act 1912 (NSW), ss 5(1), 6(3), 7(1)

Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW), ss 55, 62(b), 63, 64(2), 65

Cases Cited:

Cahyadi v The Queen (2007) 168 A Crim R 41; [2007] NSWCCA 1

Hantzis v R [2006] NSWCCA 387

Kentwell v R (2014) 252 CLR 601; [2014] HCA 37

McL v R (2000) 203 CLR 452; [2000] HCA 46

Ryan v R (1982) 149 CLR 1; [1982] HCA 30

Sheehan (No 2) v R [2006] NSWCCA 332

Category:Principal judgment
Parties: Daniel Slattery (Appellant)
The Crown (Respondent)
Representation:

Counsel:
D Phillips (Appellant)
H Roberts SC with C Young (Respondent)

Solicitors:
Stidwill Solicitors (Appellant)
Office of the Director of Public Prosecutions (NSW) (Respondent)
File Number(s): 2018/104605
Publication restriction:

Pursuant to s 578A of the Crimes Act 1900 (NSW), nothing may be published that is likely to lead to the identification of PT, RE or GB.

Pursuant to s 15A of the Children (Criminal Proceedings) Act 1987 (NSW), the name of any person mentioned in the proceedings in relation to something that occurred when the person was a child must not be published.
 Decision under appeal 
Court or tribunal:
District Court of New South Wales
Jurisdiction:
Criminal
Date of Decision:
7 May 2021
Before:
Syme DCJ
File Number(s):
2018/104605

JUDGMENT

  1. BELL CJ: On 19 May 2023, this Court delivered judgment in Slattery v R [2023] NSWCCA 117 (Slattery (No 1)), which concerned an appeal by Daniel Slattery (the Appellant) against qualified findings of guilt for 12 historical offences involving child sexual abuse at the Kendall Grange School…

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AGLC
Slattery v The Queen (No 2) [2023] NSWCCA 171
Case
[2023] NSWCCA 171
Decision Date

CaseChat Overview and Summary

In the case of Slattery v The Queen (No 2), the appellant, Mr Slattery, appealed against his conviction and sentence on the grounds of mental health and fitness to be tried. The dispute arose from Mr Slattery's criminal proceedings, which were initially halted due to his unfitness to stand trial. Following a special hearing, Mr Slattery was found guilty on some counts but not others. The appeal was successful in respect of some of these qualified findings of guilt. The court was tasked with determining the proper approach to varying sentences under section 7(1) of the Criminal Appeal Act 1912 (NSW) in light of an appeal that was successful in part but not in full.

The legal issues before the court involved the interplay between the appeal process and sentencing. Specifically, the court needed to address whether the partial success of an appeal against conviction allowed for the variation of sentences on counts where the appeal was not successful. Additionally, the court had to consider the applicability of section 7(1) of the Criminal Appeal Act 1912 (NSW) in the context of a partial appeal success and its impact on the sentences imposed for the remaining counts.

The court determined that even though the appeal against conviction was successful in part, the consequential power to vary sentences under section 7(1) of the Criminal Appeal Act 1912 (NSW) applied to the remaining counts. The court held that the partial success of the appeal justified a review of the overall sentencing scheme, ensuring that the sentences reflected the correct legal and factual outcomes. The court emphasised the importance of proportionality and fairness in sentencing, especially in cases where the appeal process had resulted in a mixed outcome. The reasoning underscored the need for a comprehensive approach to sentencing that takes into account the totality of the circumstances, including the partial success of an appeal.

The court ordered that the sentences for the counts where the appeal was not successful be reviewed and varied where necessary, to ensure consistency with the appeal's outcome and the principles of justice. The final orders reflected the court's decision to adjust the sentences on the counts where the appeal was not successful, aligning them with the outcomes of the appeal and the overall fairness of the sentencing process.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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