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Court of Criminal Appeal 31 July 2023

Valentine v R (No 2)

[2023] NSWCCA 189

Sexual offencesPublic order & justice offences
CRIME SENTENCING ONE CONVICTION SET ASIDE ON APPEAL RESENTENCING 19 PANDEMIC REDUCTION OF SENTENCE WARRANTED

Citation: Valentine v R (No 2) [2023] NSWCCA 189
Court: NSW Court of Criminal Appeal
Date: 31 July 2023
Judges: Basten AJA (with Button J and Wilson J agreeing)

Background

The applicant was convicted in 2019 on 21 counts of sexual or indecent assault committed against inmates at two training schools. The sentencing judge imposed an aggregate term of 22 years imprisonment with a non-parole period of 13 years. The applicant was 78 years old at the time of sentencing and suffered from serious cardiac, renal, and psychiatric conditions.

In an earlier appeal (Valentine v R [2023] NSWCCA 43), the Court of Criminal Appeal quashed the conviction on one count and entered a verdict of acquittal on that count. The Court noted at that time that the aggregate sentence had been imposed on a legally incorrect basis because it incorporated an indicative sentence of one year and nine months for the quashed count. The Court then invited submissions on whether resentencing was warranted.

On resentencing, the applicant's solicitor filed an affidavit documenting his medical history and custodial conditions during the COVID-19 pandemic. The Director of Public Prosecutions did not dispute the factual material.

  • Whether the quashing of one conviction required a reduction in the aggregate sentence
  • What arithmetic effect, if any, the removal of the quashed count's indicative sentence had on the appropriate aggregate term
  • Whether the onerous conditions of incarceration during the COVID-19 pandemic warranted a further reduction in sentence beyond any adjustment for the quashed conviction
  • How the principles in DL v The Queen and Kentwell v The Queen apply when a court resentences under s 7(1) of the Criminal Appeal Act 1912 (NSW)

Decision

The Court accepted that quashing one conviction obliged it to consider resentencing, exercising its own independent sentencing discretion in accordance with DL v The Queen. The Director conceded this obligation while submitting that no necessary reduction in the aggregate sentence followed. The Court agreed that the removal of the quashed count's indicative sentence had only a minor arithmetical effect, amounting to approximately five months off the head sentence and three months off the non-parole period when expressed as a proportion of the total indicative sentences.

The Court found, however, that the conditions of the applicant's incarceration during the pandemic constituted a more significant basis for resentencing. The applicant spent 155 days locked in his cell between February 2020 and December 2022, was denied shower access for 15 days in mid-2022 (a condition the Court described as inhumane), and was cut off from family visits for approximately 9 to 12 months. The Court accepted that these hardships fell more heavily on the applicant given his advanced age and serious health conditions.

Applying the approach taken in McKinnon v R and Scott v R, the Court held that the COVID-19 pandemic conditions warranted a reduction beyond any adjustment attributable to the quashed conviction alone. The remaining convictions, including three rapes and two offences of buggery, were acknowledged as serious, and the Court confirmed the unchallenged indicative sentences and factual findings from the original sentencing. The finding of special circumstances made by the sentencing judge was also confirmed.

The Court reduced the aggregate sentence to 20 years imprisonment with a non-parole period of 12 years, maintaining the same ratio between the head sentence and non-parole period as the original sentencing judge had adopted.

Orders Made

  • Aggregate sentence imposed in the District Court quashed
  • Applicant resentenced to an aggregate term comprising a non-parole period of 12 years and an additional term of 8 years
  • Sentence to date from 24 May 2019, with eligibility for release on parole on 23 May 2031

Key Takeaways

  • Quashing one conviction within an aggregate sentence does not automatically produce a proportional reduction in that aggregate term; the Court exercises an independent discretion and may find the arithmetic effect on the overall sentence is minor.
  • Under s 7(1) of the Criminal Appeal Act 1912 (NSW), the principles in DL v The Queen apply: the Court forms its own view of the appropriate sentence, generally based on the sentencing judge's unchallenged findings plus any relevant post-sentence evidence.
  • Pandemic-related custodial conditions, including lengthy cell lockdowns, denial of basic hygiene facilities, and prolonged family separation, are recognised sentencing factors that can reduce an otherwise appropriate term.
  • Where an offender is elderly and seriously ill, courts have accepted that such conditions bear more heavily on that person than on healthier prisoners, and this amplified impact is a relevant consideration on resentencing.
  • The absence of any shower access for 15 days was characterised by the Court as an inhumane condition of incarceration, illustrating the threshold at which custodial conditions may attract express judicial comment on resentencing.

Legislation and Cases Referenced

Legislation
- Criminal Appeal Act 1912 (NSW), s 7

Cases
- Valentine v R [2023] NSWCCA 43
- DL v The Queen (2018) 265 CLR 215; [2018] HCA 32
- Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
- McKinnon v R [2020] NSWCCA 106
- Scott v R [2020] NSWCCA 81
- PH v R [2023] NSWCCA 176