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Court of Criminal Appeal 7 July 2023

Slattery v R (No 2)

[2023] NSWCCA 171

Sexual offencesPublic order & justice offences
MENTAL HEALTH CRIMINAL PROCEEDINGS PERSON UNFIT TO BE TRIED SPECIAL HEARING APPEALS A PPEAL AGAINST CONVICTION

Citation: Slattery v R (No 2) [2023] NSWCCA 171
Court: NSW Court of Criminal Appeal
Date: 7 July 2023
Judge(s): Bell CJ at [1]; Ward P at [43]; Wilson J at [44]

Background

This judgment follows the Court's earlier decision in Slattery v R (No 1) [2023] NSWCCA 117, in which the Court of Criminal Appeal quashed one of 12 qualified findings of guilt entered against the appellant after a special hearing in the District Court. The appellant, who had been found unfit to be tried due to Parkinson's disease, had undergone a special hearing under the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) in relation to historical child sexual offences committed in 1980 at a school in Morisset, New South Wales.

Following that special hearing, the sentencing judge imposed individual limiting terms for each of the 12 offences, totalling an effective 11 years. A limiting term sets the maximum period a person may be detained in a correctional centre, mental health facility, or other place, in lieu of a conventional sentence.

When the Court quashed the qualified finding on Count 13 (an indecent assault against one complainant), it noted that the limiting term for that count had been made wholly concurrent with the limiting terms for several other counts. Quashing Count 13 therefore did not, by itself, reduce the total effective limiting term. The Court invited supplementary submissions on whether the remaining limiting terms should be varied as a consequence.

  • Whether, following a partially successful appeal against qualified findings of guilt, the Court of Criminal Appeal has power to vary the limiting terms attached to undisturbed counts, even where no appeal against sentence was brought.
  • Whether s 7(1) of the Criminal Appeal Act 1912 (NSW) is engaged in an appeal from qualified findings of guilt and associated limiting terms.
  • Whether s 7(1) requires a full de novo resentencing exercise or merely authorises adjustment of the remaining sentences as appropriate.
  • Whether, on the facts, it was appropriate to exercise any power to vary the remaining limiting terms given that Count 13 had been made wholly concurrent with other counts.

Decision

The Court confirmed that s 7(1) of the Criminal Appeal Act 1912 (NSW) applies to appeals from qualified findings of guilt and limiting terms, because ss 62(b) and 63(4) of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) provide that such findings and terms are subject to appeal in the same manner as convictions and sentences in ordinary criminal proceedings.

On the proper approach to s 7(1), Bell CJ drew on the High Court's treatment of the near-identical former s 569(1) of the Crimes Act 1958 (Vic) in Ryan v R (1982) 149 CLR 1 and McL v R (2000) 203 CLR 452. The section is directed at correcting anomalies that arise when sentences fall away because convictions are quashed, particularly where the sentencing judge has compressed sentences through the totality principle. The word "may" in s 7(1) makes plain the power is discretionary: the Court may affirm the remaining sentences rather than resentence. The judgment left open, without finally resolving, the precise question of whether any resentencing exercise under s 7(1) in a multi-count case requires a full fresh exercise of the sentencing discretion or merely an adjustment of existing terms.

On the facts, the Court declined to vary the remaining limiting terms. Three reasons supported this conclusion. First, the sentencing judge had not placed particular reliance on Count 13 in fixing the overall sentence, and had not identified any unique aggravating feature tied to that count. Second, the decision to make Count 13 wholly concurrent was explicable by the considerably greater objective seriousness of the offending against the primary complainant, particularly Counts 5 and 6 which carried higher maximum penalties and involved cruelty and violence. Third, the remaining limiting terms of 11 years, reflecting numerous serious offences against multiple victims, were not anomalous and did not fail to reflect appropriate punishment for the undisturbed counts. The Court accordingly affirmed the limiting terms imposed by Syme DCJ on 26 November 2021.

Orders Made

  • The limiting terms imposed by Syme DCJ on 26 November 2021 were affirmed.

Key Takeaways

  • Section 7(1) of the Criminal Appeal Act 1912 (NSW) applies to appeals from qualified findings of guilt and associated limiting terms, by operation of ss 62(b) and 63(4) of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW), which assimilate such appeals to ordinary conviction and sentence appeals.
  • The power under s 7(1) is discretionary. Where remaining sentences are not anomalous and do not fail to reflect appropriate punishment for the offences to which they attach, the court may simply affirm those sentences without resentencing.
  • Where a quashed count carried a limiting term that was wholly concurrent with the terms for other, more serious counts, quashing that count does not automatically warrant any reduction in the total effective limiting term.
  • High Court authority on the now-repealed s 569(1) of the Crimes Act 1958 (Vic), particularly Ryan v R and McL v R, informs the approach to s 7(1), given the near-identical terms of those provisions.
  • The question of whether s 7(1) requires a full de novo resentencing exercise or merely authorises targeted adjustment of remaining sentences in a multi-count case was noted but left unresolved by the Court of Criminal Appeal in this decision.

Legislation and Cases Referenced

Legislation:
- 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
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A(5A), 30L(4)
- Crimes Act 1958 (Vic), s 569(1) (now repealed)

Cases:
- Slattery v R (No 1) [2023] NSWCCA 117
- Ryan v R (1982) 149 CLR 1; [1982] HCA 30
- McL v R (2000) 203 CLR 452; [2000] HCA 46
- Kentwell v R (2014) 252 CLR 601; [2014] HCA 37
- Hantzis v R [2006] NSWCCA 387
- Cahyadi v The Queen (2007) 168 A Crim R 41; [2007] NSWCCA 1
- Sheehan (No 2) v R [2006] NSWCCA 332