Citation: R v Valentine [2019] NSWDC 201
Court: District Court of New South Wales
Date: 24 May 2019
Judge: Noman SC DCJ
Background
The offender was employed by the Department of Welfare at two juvenile detention institutions in New South Wales during the early 1970s. He held senior positions at both facilities and had authority over the children detained there. The offending occurred between approximately 1971 and 1974.
The offender faced trial on 39 counts of sexual and physical violence offences involving eight complainants. The trial proceeded as a judge-alone trial. During proceedings, 10 counts were withdrawn by the DPP, and the offender was acquitted of a further eight counts, leaving 21 counts on which guilty verdicts were entered across six complainants.
The offences included rape, buggery, indecent assault (including acts of fellatio and digital penetration, which at the time of offending were charged as indecent assault), assault occasioning actual bodily harm, and assault. The victims were children aged between 14 and 17 at the time of the offending.
Legal Issues
- What is the appropriate objective seriousness of each offence, having regard to the circumstances of the offending including the offender's position of authority, the ages of the victims, and the non-consensual nature of the acts?
- How should the court treat victim impact and harm in sentencing for historical child sexual offences?
- What aggregate sentence appropriately reflects totality while addressing offending across multiple victims on multiple occasions?
- Whether special circumstances exist justifying a variation to the standard non-parole period ratio, having regard to the offender's age and health?
Decision
The court assessed the objective seriousness of each offence by reference to a number of common aggravating features. The offender held one of the most senior positions at each institution, giving him authority over all victims, each of whom was an inmate unable to remove themselves from his reach. The victims were children, and the court accepted that the younger the victim, the more serious the offence. The offending occurred over approximately three years and formed part of a pattern across multiple victims rather than being isolated incidents.
On the question of consent, the court noted that while all acts were non-consensual, the offences of indecent assault upon a male and buggery did not require proof of absence of consent as an element. For indecent assault offences, the court placed acts of fellatio and digital penetration in the upper range of the conduct encompassed by that charge. The court characterised most of the offending as opportunistic rather than premeditated, though the repetition of offending against certain victims reflected some degree of foresight.
The court accepted that each victim was adversely affected by the offending. In the cases of three victims (EK, LT, and DW), the court found substantial harm had been suffered, which it treated as an aggravating factor. Victims had been silent about the offending for many years, and the court acknowledged that this inability to disclose or seek support had exacerbated their trauma. Four victim impact statements were received and taken into account within the applicable legislative constraints, with the court noting that sentences cannot fully reflect the degree of pain and suffering expressed.
Applying the principle of totality across 21 offences involving six victims and spanning three years, the court imposed an aggregate sentence. The court found special circumstances warranting a variation to the standard non-parole period ratio, citing the offender's age and health, and noting that the sentence may result in the offender dying in custody. The aggregate sentence of 22 years was structured with a non-parole period of 13 years, representing approximately 59% of the total sentence.
Orders Made
- The offender was convicted on all 21 counts.
- An aggregate sentence of 22 years imprisonment was imposed, with a non-parole period of 13 years, commencing 24 May 2019.
- The sentence expires on 23 May 2041.
- The offender is eligible for parole on 23 May 2032.
- Indicative sentences were set for each individual count, ranging from 8 months imprisonment (Count 11, assault of LT) to 12 years imprisonment (Count 4, rape of EK).
Key Takeaways
- The District Court confirmed that an offender's position of authority over children in a custodial institution constitutes a significant aggravating circumstance, with the seniority of that position relevant to the weight given to that factor.
- Where offending forms part of a pattern across multiple victims over a sustained period, rather than a single isolated incident, that pattern appropriately informs the overall assessment of objective seriousness across individual counts.
- Substantial victim harm, including suicide attempts, long-term psychological damage, and the compounding effect of years of silence and non-disclosure, can elevate harm to the level of an aggravating feature on the particular facts, though the court noted it remains guided by sentencing principle as to the degree to which such harm can be reflected in sentence.
- A finding of special circumstances, and the consequent variation to the non-parole period ratio, was available where the number of offences requiring accumulation of sentences combined with the offender's age and health created a need for adjustment, even where the gravity of the offending was substantial.
- In imposing an aggregate sentence for a large number of historical offences across multiple victims, the principle of totality requires that individual sentences be moderated so that the overall sentence remains proportionate, though some degree of accumulation is necessary to reflect the separate victimisation of distinct individuals.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), ss 59, 61, 63, 76, 79, 81
Cases:
- PH v R [2009] NSWCCA 161