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21
Court of Criminal Appeal 4 June 2020

Valentine v R

[2020] NSWCCA 116

Sexual offences
CRIMINAL LAW SENTENCING APPEAL AGAINST SENTENCE ERROR CONCEDED APPEAL AGAINST SENTENCE ALLOWED

Citation: Valentine v R [2020] NSWCCA 116
Court: Court of Criminal Appeal, New South Wales
Date: 4 June 2020
Judge(s): Harrison J, R A Hulme J, Wright J (all agreeing with Wright J)

Background

The applicant pleaded guilty in the Local Court in October 2017 to two offences under s 91H(2) of the Crimes Act 1900 (NSW): possessing child abuse material and disseminating child abuse material, each carrying a maximum penalty of 10 years' imprisonment. He was committed to the District Court for sentencing.

The applicant failed to appear for his sentencing hearing in March 2019, was arrested on a warrant, and remained in custody from 18 March 2019. Harris DCJ sentenced him in the District Court on 16 July 2019, imposing an effective total sentence of 2 years and 10 months with a non-parole period of 18 months.

The applicant sought leave to appeal, raising a single ground: that the sentencing judge failed to apply any discount for the utilitarian value of his early guilty pleas, despite this being expressly sought in written submissions at sentence.

  • Whether the sentencing judge erred by failing to have regard to the utilitarian value of the applicant's early guilty pleas when imposing sentence.
  • Whether, if error was established, a lesser sentence was warranted on the material before the Court of Criminal Appeal, such that resentencing was appropriate.

Decision

The Crown conceded the sentencing error. A review of Harris DCJ's remarks on sentence confirmed that, although a 25% discount for the early guilty pleas had been expressly sought in written submissions, the remarks contained no reference to that submission and no discount was applied. The Court of Criminal Appeal accepted that this omission constituted error.

Having found error, the Court then considered whether resentencing was warranted. Wright J assessed the objective seriousness of each offence: possession was characterised as slightly below the mid-range, and dissemination as towards the low range. The Court accepted the subjective matters considered by the sentencing judge, including the applicant's good character, lack of relevant criminal history, history of family dysfunction, and the contribution of anxiety and depressive symptoms to his social withdrawal.

Wright J applied a 25% discount for the early guilty pleas to a starting point of 3 years for possession and 12 months for dissemination, producing an effective total sentence of 2 years and 5 months with a non-parole period of 16 months. This was less than the sentences imposed in the District Court, and so resentencing was ordered.

Orders Made

  • Leave to appeal against sentence granted.
  • Appeal against sentence allowed.
  • Sentences imposed in the District Court on 16 July 2019 quashed.
  • In respect of the dissemination offence (sequence 2): imprisonment for 9 months commencing 16 March 2019 and expiring 15 December 2019.
  • In respect of the possession offence (sequence 1): imprisonment with a non-parole period of 1 year and 2 months commencing 16 May 2019 and expiring 15 July 2020, and a balance of term of 1 year and 1 month expiring 15 August 2021. The earliest date for release on parole is 16 July 2020.

Key Takeaways

  • A sentencing court's failure to address the utilitarian value of early guilty pleas, where a discount is expressly sought in submissions, constitutes error on appeal.
  • The utilitarian value of a guilty plea and the plea as evidence of acceptance of responsibility are distinct considerations, each capable of operating separately in the sentencing process.
  • Where error is established, the Court of Criminal Appeal will resentence only if a lesser sentence is warranted on the material before it; the existence of error alone does not automatically produce a different outcome.
  • Applying a 25% discount for guilty pleas entered at the Local Court and committal stage is consistent with the approach to early pleas recognised in decisions such as R v Thomson; R v Houlton (2000) 49 NSWLR 383.
  • Rejection of a subjective account offered in mitigation (here, claimed childhood sexual abuse and the reason for initially accessing the material) does not preclude the sentencing court from accepting other subjective factors, such as a history of family dysfunction and mental health difficulties.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 91H(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Criminal Appeal Act 1912 (NSW), s 5(1)(c)

Cases
- R v Thomson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309
- Minehan v R [2010] NSWCCA 140; (2010) 201 A Crim R 243
- R v Booth [2009] NSWCCA 89
- Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
- DL v The Queen (2018) 265 CLR 215; [2018] HCA 32
- Zhang v R [2018] NSWCCA 82
- Baxter v R [2007] NSWCCA 237
- Hallak v R [2014] NSWCCA 48
- Lee v R [2016] NSWCCA 146
- Raad v R [2015] NSWCCA 276