Slattery v The Queen (No 2) - [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Crimes Act 1958 (Vic), s 569(1) (now repealed)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

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…

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 Slattery v The Queen (No 2)

Details

AGLC: Slattery v The Queen (No 2) [2023] NSWCCA 171
Case: [2023] NSWCCA 171
Decision Date: 07 July 2023

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