Slattery v R (No 2)

1. [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 in Morisset, New South Wales (the School). In Slattery (No 1), this Court made orders quashing one qualified finding of guilt for a single offence of indecent assault (Count 13), but dismissing the appeal against the other 11 qualified findings of guilt. This judgment assumes familiarity with those reasons.

2. [2]

   The Appellant, who was diagnosed with Parkinson’s disease in 2010, had been found unfit to be tried. After a special hearing in the District Court conducted pursuant to s 55 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) (Mental Health Act), he was found to have committed 12 offences in 1980 involving the sexual abuse of three young boys. On 26 November 2021, the judge who had conducted the special hearing imposed a number of limiting terms pursuant to s 63(2) of the Mental Health Act, with the total effective limiting term amounting to 11 years. A limiting term sets the maximum amount of time a person may be detained in a correctional centre, mental health facility or other place.

3. [3]

   For simplicity, notwithstanding that the Appellant was not sentenced in the conventional sense, these reasons will refer to the “sentencing judge”, “resentencing”, the “remarks on sentence” and the like.

4. [4]

   It was common ground at the sentencing hearing that there was no scope for the sentencing judge to impose an aggregate limiting term. Rather, her Honour imposed individual limiting terms for each offence, which were as follows:

5. [5]

   As can be seen in the above table, the limiting term for Count 13, which was the only offence alleged to have been committed against GB, was made entirely concurrent with the limiting terms imposed for a number of other counts (namely, Counts 5, 6 and 10). As a consequence, when this Court in Slattery (No 1) quashed the qualified finding of guilt for Count 13 (and the associated limiting term), this did not, of itself, alter the total effective limiting term to be served by the Appellant. Accordingly, the Court granted leave to the parties to file supplementary submissions with respect to any possible variation of the limiting terms.

6. [6]

   Supplementary submissions were filed by the Appellant on 31 May 2023 and by the Crown on 15 June 2023. In essence, the Appellant submitted that “there should be some abatement of the overall limiting term of 11 years”. The Crown conceded that it would be open to the Court to make such a variation.

The power to vary a sentence where a conviction appeal is partially successful

1. [7]

   Where an offender is convicted of multiple offences and successfully appeals against some (but not all) of those convictions, the power to vary the sentences attaching to the undisturbed convictions is found in s 7(1) of the Criminal Appeal Act 1912 (NSW). That subsection provides:

2. [8]

   While strictly speaking the Appellant’s appeal against his qualified findings of guilt was not an appeal under s 5(1) of the Criminal Appeal Act, s 62(b) of the Mental Health Act provides that qualified findings of guilt are “subject to appeal in the same manner as a verdict in an ordinary trial of criminal proceedings”. Similarly, s 63(4) of the Act provides that a limiting term “is to be subject to appeal in the same manner as a penalty or order in an ordinary trial of criminal proceedings.” In this context, s 7(1) of the Criminal Appeal Act is engaged.

3. [9]

   A preliminary issue is whether, in circumstances where an offender has been sentenced to multiple individual sentences, the power conferred by s 7(1) is to be performed by re-exercising the sentencing discretion afresh (in the sense discussed in Kentwell v R (2014) 252 CLR 601; [2014] HCA 37 at [43]), or by adjusting the remaining sentences to the extent (if any) that the Court considers appropriate. This issue was not directly addressed in written submissions, although both parties appeared to proceed on the basis that the latter approach was appropriate. The Crown, for example, suggested that one way to reduce the total effective limiting term might be to vary the 8-year limiting term imposed for Count 6.

4. [10]

   The proper approach to s 7(1) where an offender has been sentenced to multiple individual sentences does not appear to have been considered in great detail in this Court or the High Court. However, some guidance as to its application may be found in the treatment of the now-repealed s 569(1) of the Crimes Act 1958 (Vic), which was in near identical terms. The operation of that section was considered by the High Court in Ryan v R (1982) 149 CLR 1; [1982] HCA 30 (Ryan) and McL v R (2000) 203 CLR 452; [2000] HCA 46 (McL).

5. [11]

   The effect of the reasoning in Ryan and McL was summarised by Basten JA in Hantzis v R [2006] NSWCCA 387 at [29]–[30]:

6. [12]

   The above extracts confirm that the Court has a discretion to decline to exercise the power to resentence under s 7(1). So much is clear from the terms of s 7(1), which provides that the Court “may … affirm the sentence passed at the trial”. In determining whether to affirm the sentence or proceed to resentence the offender, relevant matters will include whether the remaining sentences are “anomalous” or “[do] not reflect the appropriate punishment for the offences for which they were imposed” (McL at [44]), and the manner in which the sentencing judge gave effect to the totality principle by rendering sentences concurrent or cumulative. In this context, Gleeson CJ, Gaudron and Callinan JJ said the following in McL at [34]:

7. [13]

   However, McL also makes clear that if the Court does decide to exercise the power conferred by s 7(1), that is to be done by way of re-exercising the independent sentencing discretion afresh, rather than by adjusting or “tinkering” with the sentences imposed at first instance. As was said by McHugh, Gummow and Hayne JJ in McL at [51]:

8. [14]

   This approach was followed in the context of s 7(1) in Sheehan (No 2) v R [2006] NSWCCA 332 at [9]. Again, this interpretation accords with the plain language of s 7(1), which provides that if the Court proceeds to resentence an offender, it must impose “such sentence whether more or less severe… as it thinks proper” (emphasis added).

9. [15]

   It may be observed that the quashing of one or more convictions out of a series of related offences will not always result in the reduction of the remaining sentences. Indeed, in McL the High Court held that it was open to the Victorian Court of Appeal to increase the remaining individual sentences imposed on the offender, such that the total effective sentence remained the same.

10. [16]

    A review of these authorities indicates that, in circumstances such as the present, there are two stages to the enquiry required by s 7(1). First, the Court is to determine whether to affirm the sentence imposed by the sentencing judge, or whether to proceed to re-sentence the applicant. This discretionary decision will involve consideration of the degree of connection between the quashed count and those which remain; the way in which the sentencing judge gave effect to the principle of totality; and the adequacy of the remaining sentences. However, if the Court determines to resentence the offender, it is to do so by re-exercising the sentencing discretion afresh. In doing so, the Court is to pass the sentence which it independently considers to be appropriate in all the circumstances, and not defer to the sentence imposed at first instance.

11. [17]

    In this respect, s 7(1) differs from the approach taken under s 6(3) of the Criminal Appeal Act on an appeal against sentence. Under s 6(3), if error in the sentencing process is established, the Court does not first consider the adequacy of the sentence passed at first instance, but simply proceeds to re-exercise the sentencing discretion to determine whether a more or less severe sentence is warranted. This difference in approach is borne out by differences in the terms and structure of the two sections: notably, unlike s 7(1), s 6(3) confers no separate power to “affirm” a sentence.

The limiting terms imposed at first instance

1. [18]

   In determining whether to exercise the power conferred by s 7(1), this Court had before it the sentencing judge’s remarks on sentence, together with the parties’ sentencing submissions and the exhibits tendered by each party at the sentencing hearing.

2. [19]

   Section 63 of the Mental Health Act sets out how a sentencing judge is to impose penalties on an offender after qualified findings of guilt are made at a special hearing. Relevantly, s 63(2) provides that if the judge would have imposed a sentence of imprisonment for an offence, had it been proven at an ordinary trial of criminal proceedings, the court must nominate a limiting term that is the best estimate of the sentence that the court would have imposed on the defendant in those circumstances.

3. [20]

   For the purposes of imposing limiting terms, her Honour summarised the facts of the offending, and made findings about the objective seriousness of each offence, in the following passage:

4. [21]

   Putting to one side the remarks relating to Count 13, no challenge has been made to any other findings made by the sentencing judge, including her Honour’s assessments of objective seriousness. The remaining critical findings of the sentencing judge are set out below.

5. [22]

   The Appellant was 66 years of age at the time of sentence, and is now 68. He entered the order of St John of God as a Brother in 1973, at 18 years of age, and served as a teacher and supervisor at the School from January to December of 1980. All of the present offences were committed during that period. In 1983, he left the order and soon after he married his wife. He took on the role of father to his wife’s then three children. In 2010, he was diagnosed with Parkinson’s disease.

6. [23]

   There were a number of aggravating features of the offending. In particular, the sentencing judge noted the following:

   1. (1)

      Many of the offences occurred in the presence of other students, who were under the age of 18.

   2. (2)

      In some instances, Mr Slattery provided or attempted to provide alcohol or drugs to the victims before the offending (Counts 1, 4 and 6).

   3. (3)

      The Appellant abused a position of trust as a supervisor at the school and as a person trusted by the parents and school authorities to educate the children.

   4. (4)

      The victims were vulnerable due to their young age, their geographical isolation from their families, their apparent educational and/or behavioural difficulties, and the fact that they were required to stay at the school.

   5. (5)

      Count 5 was committed in company.

7. [24]

   To this I would add that the Appellant abused a position of trust as the holder of a position of religious authority (namely, as a Brother of an order of the Catholic Church), and that the offences occurred in what was then the victims’ home, in which they were entitled to feel safe.

8. [25]

   The sentencing judge also made the following observation, with which I agree:

9. [26]

   More specifically, as the sentencing judge noted in her Honour’s reasons for judgment after the special hearing, PT had given evidence that that the Appellant himself had told PT that “he would burn in hell or be visited by the angel of death if he was not well behaved”. The use of religious indoctrination and threats of this kind no doubt had the effect of increasing PT’s vulnerability, and making him fearful of reporting the Appellant’s abusive conduct.

10. [27]

    The sentencing judge considered that the Appellant’s moral culpability might be reduced somewhat because he was inducted into the culture of the Brothers of St John of God at the young age of 18. However, her Honour noted that the offending occurred in 1980, when he was aged 25 years and “no longer at the stage of life where his immaturity can be considered a great factor in ameliorating his moral responsibility.”

11. [28]

    As for the Appellant’s subjective case and mitigating factors, the material before the sentencing judge (which was also before this Court) included a report prepared by Corrective Services, a number of reports by the Appellant’s treating physicians and psychiatrists, Dr Makahalla and Dr Bertram, a number of character references written by the Appellant’s wife, stepchildren and other members of the community, and a list of medications which the Appellant was required to take. It supports the following findings made by the sentencing judge:

    1. (1)

       The Appellant’s Parkinson’s disease is a serious, debilitating and degenerative condition, which affects him physically and cognitively. At the time of sentencing, he had cognitive issues and needed assistance performing daily tasks. His condition is expected to worsen over time, and makes his time in custody more onerous.

    2. (2)

       As the Appellant was not fit to be tried and incapable of giving instructions, the fact that he did not admit the offences cannot bear upon considerations of remorse. Notwithstanding this, the co-operation of counsel enabled the evidence to be presented as efficiently as possible, which may be considered of some benefit to the Appellant.

    3. (3)

       The Appellant has demonstrated rehabilitation since the offences, including by his lack of subsequent offending. Information from his wife, stepchildren and other community members indicates that since the offending he has made a positive contribution to the community.

    4. (4)

       Having regard to the Appellant’s age and medical condition, he is unlikely to reoffend.

12. [29]

    Her Honour took into account the Appellant’s lack of prior convictions at the time of the offending, and to a lesser extent, his prior good character, although arguably his good character (as apparently reflected in his status in the Brotherhood) may have assisted in the commission of the offences. Her Honour appeared to reach this conclusion. As such, it was a factor which should not have been taken into account as a mitigating factor by reason of s 21A(5A) of the Crimes (Sentencing Procedure) Act 1999 (NSW) (Sentencing Act).

13. [30]

    The sentencing judge took into account the delay in bringing proceedings. As her Honour observed, police investigations commenced in approximately 2011, but the Appellant was not charged until July 2018. This delay was largely due to the fact that the investigation was initially focussed on another Brother at the School, Bernard McGrath, together with difficulties locating and eliciting evidence from relevant witnesses. After the Appellant was charged, there were further delays due to preliminary proceedings concerning the Appellant’s fitness to be tried, and an application for a permanent stay of proceedings (which was refused).

14. [31]

    The sentencing judge observed that this delay caused distress to the Appellant and his family, and that if proceedings had been commenced in 2011, the Appellant may have been able to participate in interviews and the like. Her Honour noted, however, that the Appellant had continued to live untroubled by the allegations against him until 2018. He was not remanded in custody until the sentencing hearing on 26 November 2021.

15. [32]

    Finally, turning to the purposes of sentencing set out in s 3A of the Sentencing Act, the sentencing judge considered that due to the Appellant’s medical condition, certain sentencing principles may be given less weight than otherwise might be the case. Her Honour found that specific deterrence and the protection of the community were not central considerations, and that while general deterrence remained relevant, its importance was somewhat diminished.

16. [33]

    For the purposes of assessing whether the remaining limiting terms reflect the criminality of the offending it must be observed that, for offences of this kind, there is great importance in denouncing the conduct of the offender (s 3A(f)) and recognising the harm done to the victim of crime and the community (s 3A(g)). While s 30L(4) of the Sentencing Act prevents consideration being given to victim impact statements when determining limiting terms, judicial notice can be taken of the fact that sexual offending of this kind, particularly in religious and educational institutions, has caused the community to suffer enormous harm. Although the victim impact statements of PT and RE cannot bear upon the appropriate limiting terms, this Court acknowledges the profound and life-long effects of trauma that they disclose.

17. [34]

    Finally, and importantly for present purposes, the sentencing judge stated that she took into account the principle of totality in determining the periods of accumulation between the limiting terms:

18. [35]

    In structuring the limiting terms, her Honour took into account, as required by s 64(2) of the Mental Health Act, that a limiting term is not subject to a non-parole period, and that in an ordinary trial of criminal proceedings, consecutive sentences of imprisonment are imposed with regard to non-parole periods. Her Honour did not apply a sentencing discount pursuant to s 63(5)(b) of the Act.

Consideration

1. [36]

   Having regard to the way in which the sentencing judge approached the sentencing exercise, the length of the remaining limiting terms, and the number and nature of the offences, I am not of the view that this it is appropriate to exercise the power conferred by s 7(1) to resentence the Appellant. For the reasons which follow, I would affirm the sentence imposed by the primary judge.

2. [37]

   First, on reviewing the remarks on sentence and the material before the sentencing judge, there is little reason to conclude that her Honour did not take into account the principle of totality in structuring the limiting terms. In Cahyadi v The Queen (2007) 168 A Crim R 41; [2007] NSWCCA 1 at [27], Howie J (Adams and Price JJ agreeing) said:

3. [38]

   On its face, the way in which the sentencing judge structured the limiting terms suggests that her Honour considered that the limiting terms for Counts 1 to 11 (and more particularly, Counts 5, 6 and 10) could “comprehend and reflect the criminality” inherent in Count 13. Nothing in her Honour’s reasons contradicts this inference. For example, her Honour did not place emphasis on the fact that the Appellant had offended against three separate victims, nor did she note any particular aggravating features that were unique to Count 13. I am not persuaded that the sentencing judge relied upon the commission of Count 13 to increase the total effective sentence to be imposed, without stating that she had done so or reflecting it in the structure of the individual terms, such that resentencing is now appropriate as a consequence of the quashing of the qualified finding of guilt for Count 13.

4. [39]

   Second, the nature of the offences was not such that it was not open to the sentencing judge to make the limiting term for Count 13 wholly concurrent with the terms for other offences. Indeed, there are clear reasons why her Honour may have considered it appropriate to do so. While Count 13 (if proven) would undoubtedly have been a serious sexual offence, the offending against PT was of considerably greater objective seriousness. In particular, counts 5 and 6, with which Count 13 was made wholly concurrent, had a far higher maximum penalty and involved a significant degree of cruelty and violence. Count 13 also was not an entirely unrelated offence: although it was a separate incident of offending, it occurred in the same location and involved approximately the same modus operandi as other offences against PT.

5. [40]

   Third, having regard to the considerable number and grave objective seriousness of the undisturbed counts, it could not be said that the remaining limiting terms, amounting to a total of 11 years, are “anomalous” or “do not reflect the appropriate punishment for the offences for which they were imposed”. In this sense, I am not persuaded that any practical injustice is occasioned by declining to reduce the limiting terms which were imposed on the Appellant.

6. [41]

   For these reasons, the quashing of the Appellant’s qualified finding of guilt on Count 13 did not have the effect of altering what was the overall appropriate sentence, given that the limiting term in respect of Count 13 was to be served wholly concurrently with other limiting terms. This was a case of the kind contemplated by Gleeson CJ, Gaudron and Callinan JJ in McL where no occasion to invoke s 7(1) arose: see [12] above.

7. [42]

   Accordingly, I would affirm the limiting terms imposed by Syme DCJ on 26 November 2021.

8. [43]

   WARD P: I agree with Bell CJ.

9. [44]

   WILSON J: I also agree with Bell CJ.