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proper approach to s 7(1) of the Criminal Appeal Act 1912 (NSW) Legislation Cited: Crimes Act 1958 (Vic), s 569(1) (now repealed) Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A(5A), 30L(4) Criminal Appeal Act 1912 (NSW), ss 5(1), 6(3), 7(1) Mental Health and Cognitive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name of any person mentioned in the proceedings in relation to something that occurred when the person was a child must not be published.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 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. 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. 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. 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: Complainant Count Maximum penalty Limiting term Dates PT 1 5 years 2 years 26/11/21 – 25/11/23 2 5 years 2 years, 6 months 26/11/21 – 25/05/24 3 5 years 2 years, 6 months 26/11/21 – 25/05/24 4 5 years 3 years 26/05/22 – 25/05/25 5 14 years 8 years 26/11/23 – 25/11/31 6 14 years 8 years 26/11/24 – 25/11/32 7 5 years 2 years 26/11/24 – 25/11/26 8 5 years 2 years 26/11/24 – 25/11/26 9 5 years 2 years 26/11/24 – 25/11/26 RE 10 5 years 2 years, 6 months 26/11/24 – 25/05/27 11 5 years 4 years 26/11/25 – 25/11/29 GB 13 5 years 2 years 26/05/25 – 25/05/27 1. 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. 2. 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. 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: "7 Powers of court in special cases (1) If it appears to the court that an appellant on an appeal under section 5(1), though not properly convicted on some count or part of the indictment, has been properly convicted on some other count or part of the indictment, the court may either affirm the sentence passed at the trial or pass such sentence whether more or less severe in substitution therefor as it thinks proper, and as may be warranted in law by the conviction on the count or part of the indictment on which it considers the appellant has been properly convicted. …" 1. 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. 2. 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. 3. 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). 4. The effect of the reasoning in Ryan and McL was summarised by Basten JA in Hantzis v R [2006] NSWCCA 387 at [29]–[30]: "[29] … Each case involved an offender convicted on multiple counts, where an appeal court had quashed some, but not all of the convictions. The question raised in Ryan was whether the court was then entitled to interfere with the sentences passed on other convictions, in circumstances where the appeal did not allow it to say whether the offender had been "properly convicted" on the other counts. There was sufficient disparity in the approaches adopted by the five members of the Court in Ryan that three members of the Court in McL (McHugh, Gummow and Hayne JJ) considered that there was no uniformity of reasoning sufficient to constitute a ratio decidendi: at [63]. However, the joint judgment of Gleeson CJ, Gaudron and Callinan JJ in McL quoted with apparent approval the following passage from the judgment of Brennan J in Ryan at [23] (being [32] in McL): On appeal against conviction, if the conviction upon one or more counts is quashed but the conviction upon another count or other counts stands, the sentences in respect of the quashed convictions must be set aside while the sentences in respect of the other convictions stand. The overall sentence may thus be altered, and the alteration may prove to be anomalous. Section 569(1) of the Crimes Act allows the correction of such an anomaly. It empowers the Full Court to alter the sentence when a conviction on one count in an indictment is quashed and a conviction on another count stands. [30] That reasoning is consistent with the explanation given in the joint judgment of McHugh, Gummow and Hayne JJ in McL at [75]: In modern times, s 569(1) of the Act is likely to have its most frequent operation in circumstances where the sentencing judge has compressed sentences by reason of the totality principle. There would be less occasion for the Court of Appeal to exercise its powers under that subsection if sentencing judges imposed the sentence appropriate in respect of each conviction and then gave effect to the totality principle, where that principle did require a reduction of the cumulative effect of the sentences, by making concurrent any sentence or sentences that conflicted with the totality principle." 1. 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]: "It was argued, that, as a matter of the proper exercise of discretion, the occasion to exercise the power given by s 569(1) would ordinarily arise only when there is some connection between the convictions which are left standing and the alleged offences in respect of which convictions have been quashed such as to warrant a conclusion that the quashing of some convictions requires an alteration of the sentence imposed in respect of others. That is so. … As the analysis of Brennan J in Ryan demonstrates, and as the facts of the present case illustrate, sufficient connection to justify an exercise of the power under s 569(1) may be found in the principle of totality. Much may depend upon the manner in which the sentencing judge has applied that principle. If the judge has followed the course recommended in the cases of Mill [v The Queen (1988) 166 CLR 59] and [R v] Lomax [(1997) 91 A Crim R 270], and responded to considerations of totality, not by reducing individual sentences, but by fixing individually appropriate sentences and making them wholly or partly concurrent, then no occasion to invoke s 569(1) may arise. On the other hand, if, as in the present case, a sentencing judge has given effect to considerations of totality partly by imposing individual sentences which were less than they would otherwise have been, then that is the very kind of case which may call for an exercise of the power to re-sentence under s 569(1)." 1. 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]: "… the power conferred by s 569(1) of the Act is a power to re-sentence the accused de novo. It is not a power merely to review the adequacy of the appellant's sentence following the quashing of convictions." 1. 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). 2. 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. 3. 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. 4. 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. 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. 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. 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: "COUNT 1, INDECENT ASSAULT ON A MALE COMPLAINANT PT The offence occurred in the communal TV room when PT was aged nine or ten years old. Brother Daniel told PT to sit on his lap, kissed him on the neck and touched his chest. He then moved the child around on his lap, took hold of the child's hand and put it on his erect penis, which was exposed. This offence is of midrange objective seriousness. COUNT 2, INDECENT ASSAULT UPON A MALE The same evening Brother Daniel walked PT to his own bedroom. Once inside the bedroom they both lay on the bed and Brother Daniel engaged in what PT described as dry humping, with the defendant thrusting his erect penis against PT's bottom on the outside of his pyjamas. This activity continued for what seemed to him to be like half an hour, after which he took PT back to his own bed in the dormitory, telling him that he was showing him love. This offence is of above midrange objective seriousness for the offence charged. COUNT 3, INDECENT ASSAULT ON A MALE On a different day PT was in his room and Brother Daniel entered the room and talked to him and another boy about sexual matters. He then placed both boys' hands on his penis and moved them up and down, giving them instructions on how to masturbate him. The defendant continued with this sexual activity until he ejaculated onto their hands. This offence is above the midrange of objective seriousness. COUNT 4, INDECENT ASSAULT ON A MALE PT was physically assaulted by both Brother Bernard and Brother Daniel and was very upset. Brother Bernard gave the child two pills to calm him down. The child became sleepy and was taken to a room by both of the brothers. He was face down and felt Brother Daniel on top of him, humping him as he said, while Brother Bernard watched. The following day PT saw blood on the toilet paper after he had wiped his bottom. The offence is of high range objective seriousness. COUNT 5, BUGGERY Brother Daniel took PT to his bedroom, forcibly kissed and undressed the child, and then anally penetrated the child with his penis, causing, he said, significant pain. PT specifically recalled the feeling of relief when the defendant pulled his penis out of his anus. PT did not recall if the defendant ejaculated inside him. Afterwards PT said he was crying and told Brother Daniel that he was hurt. He said that the defendant apologised for hurting him and he said he was only showing physical love. This is an offence of high range objective seriousness. COUNT 6, BUGGERY On another occasion Brother Daniel took PT into his room, gave him some communion wine to drink and talked about God and the Bible. He then pulled the child's pyjamas down, rolled on top of him and forcibly penetrated the child's anus with his penis, while holding him down by his shoulders. On this occasion Brother Daniel ejaculated. PT recalled the bursting pain and extreme discomfort in his lower abdomen and that pain subsiding when the defendant withdrew his penis from his anus. This is an offence of high range objective seriousness. COUNTS 7, 8 AND 9 Counts 7, 8 and 9 are all indecent assault on a male and occurred in succession. They are individually and collectively of above midrange objective seriousness. Brother Daniel made PT take his penis into his mouth, pushing it into his mouth until the child gagged; count 7. The defendant then said he would show PT how to do it. He next took PT's penis into his own mouth; count 8. After the defendant had described and demonstrated what to do, as described above, the defendant then made the child again take his penis into the child's mouth. The complainant recalled that he was gagging because Brother Daniel's penis was very large. The defendant held the back of the complainant's head and guided it into his mouth, and guided the complainant's mouth onto his penis; count 9. Counts 10 and 11 relate to RN, who was aged 12 or 13 at the relevant time. COUNT 10 RN was asleep in the dormitory, which was supervised by Brother Daniel. On the occasion in question he saw and felt the brother leaning over his bed, placing his hand under the bed clothes and masturbating the child to ejaculation. This is an offence of above midrange objective seriousness. COUNT 11, ATTEMPTED BUGGERY Brother Daniel picked up RN at the train station after a weekend home and took him to the first aid room and took his pants off. Brother Daniel exposed his own erect penis by lifting his coat, opened the child's legs and tried to force his penis into the child's anus, causing pressure and pain in that area. RN was terrified and fled the room. This is an offence of well into the high range of seriousness for the offence charged. COUNT 13, INDECENT ASSAULT ON A MALE GB, the complainant in this matter, said he was asleep in his bed when he woke up to the sound of Brother Daniel getting into his bed. He then put his hand inside GB's pyjamas, took hold of his penis and moved his hand up and down, causing GB's penis to become hard and masturbating his penis for a period of time. This is an offence of above midrange seriousness. In relation to this event GB confirmed that he was terrified as the abuse preceded a significant period of similar and worse abuse by Bernard McGrath." (emphasis added) 1. 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. 2. 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. 3. There were a number of aggravating features of the offending. In particular, the sentencing judge noted the following: 1. Many of the offences occurred in the presence of other students, who were under the age of 18. 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. 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. 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. Count 5 was committed in company. 1. 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. 2. The sentencing judge also made the following observation, with which I agree: "The most serious aggravating circumstance for each of those matters where it is relevant is the threats and coercion, combined with the breach of trust. All of the offences were committed in a general atmosphere of fear and threat by many of the brothers that they would burn in hell or be visited by, as one complainant said, the angel of death and never see their parents again. The imposition of these sorts of threats, combined with religious instruction, was very frightening, and while Slattery was not solely responsible for the culture of fear and violence and abuse at the school, he contributed to it simply by his offending." 1. 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. 2. 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." 3. 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. 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. 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. 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. Having regard to the Appellant's age and medical condition, he is unlikely to reoffend. 1. 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). 2. 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). 3. 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. 4. 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. 5. 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. 6. 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: "Counsel concede that there is not apparently any scope to impose an aggregate limiting term, however the Court in considering periods of accumulation will take the principles of totality into account to ensure that the final overall term is not crushing, particularly for a man in poor physical health …" 1. 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. 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. 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: "… there is no general rule that determines whether sentences ought to be imposed concurrently or consecutively. The issue is determined by the application of the principle of totality of criminality: can the sentence for one offence comprehend and reflect the criminality for the other offence? If it can, the sentences ought to be concurrent otherwise there is a risk that the combined sentences will exceed that which is warranted to reflect the total criminality of the two offences. If not, the sentences should be at least partly cumulative otherwise there is a risk that the total sentence will fail to reflect the total criminality of the two offences. This is so regardless of whether the two offences represent two discrete acts of criminality or can be regarded as part of a single episode of criminality." (emphasis added) 1. 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. 2. 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. 3. 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. 4. 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. 5. Accordingly, I would affirm the limiting terms imposed by Syme DCJ on 26 November 2021. 6. WARD P: I agree with Bell CJ. 7. WILSON J: I also agree with Bell CJ. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 07 July 2023