Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Valentine v R (No 2) [2023] NSWCCA 189 Hearing dates: On the papers Date of orders: 31 July 2023 Decision date: 31 July 2023 Before: Basten AJA at [1]; Button J at [25]; Wilson J at [26] Decision: (1) Quash the sentence imposed in the District Court and resentence the applicant to an aggregate term comprising a non-parole period of 12 years and an additional term of 8 years. (2) The sentence will date from 24 May 2019. Accordingly, the offender will be eligible for release on parole on 23 May 2031. Catchwords: CRIME – sentencing – aggregate sentence based on multiple convictions – one conviction set aside on appeal – resentencing – minor effect of acquittal on seriousness of course of offending – unforeseen onerous conditions of imprisonment during COVID-19 pandemic – reduction of sentence warranted Legislation Cited: Criminal Appeal Act 1912 (NSW), s 7 Cases Cited: 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 PH v R [2023] NSWCCA 176 Scott v R [2020] NSWCCA 81 Valentine v R [2023] NSWCCA 43 Category: Sentence Parties: Frank Valentine (Appellant) Director of Public Prosecutions (Respondent) Representation: Counsel: Ms A Francis (Appellant) Mr E Balodis (Respondent) Solicitors: Randall Legal (Appellant) C Hyland, Solicitor for Public Prosecutions (Respondent) File Number(s): 2016/00168451 2017/00157047 Decision under appeal Court or tribunal: District Court Jurisdiction: Criminal Citation: [2019] NSWDC 201 (On sentence) Date of Decision: 24 May 2019 Before: Noman SC DCJ File Number(s): 2016/00168451 JUDGMENT 1. BASTEN AJA: On 9 April 2019, Judge Noman SC convicted the applicant on 21 counts of sexual or indecent assault committed by him on a number of inmates at Parramatta Girls' Training School and, in respect of one inmate, at Daruk Boys' Training School. 2. On 24 May 2019, Noman DCJ sentenced Mr Valentine to an aggregate term of imprisonment for 22 years with a non-parole period of 13 years, to date from the date of the sentencing. 3. A notice of appeal was filed (well out of time) on 5 May 2022. The 21 grounds of appeal were directed to the convictions. There was no appeal against sentence. 4. By a judgment delivered on 10 March 2023, the Court granted leave to appeal, upheld the appeal (by majority) with respect to the conviction on count 24, which was quashed, and a verdict of acquittal entered on that count. Otherwise, the appeal was dismissed. In delivering judgment, the Court noted that "the aggregate sentence was imposed on a legally incorrect basis in that the indicative sentences included a putative sentence of one year, nine months imprisonment with respect to count 24". [1] The power to reconsider the sentence arises under s 7(1) of the Criminal Appeal Act 1912 (NSW). 5. Noting the possibility that the applicant would wish to challenge his sentence on the basis that one conviction had been set aside, the Court granted leave to the parties to file written submissions with respect to a possible reduction of the aggregate sentence. There was some delay in compliance with those directions and, on 4 May 2023, counsel for the applicant noted that COVID-19 had had a significant effect on the applicant's custodial circumstances and sought an extension of time, which was granted. On 19 June 2023 the applicant's solicitor, Tracey Randall, filed an affidavit attaching a volume of material documenting the applicant's medical and custodial history. The affidavit, filed on 21 June 2023, helpfully extracted key facts and was accompanied by a brief written submission. Counsel for the Director of Public Prosecutions filed a submission in reply on 3 July 2023, which did not take issue with any of the medical or custodial history. Basis of resentencing 1. The Director accepted that the Court, having quashed one of the counts, was obliged to consider resentencing the applicant. While accepting that the arithmetical total of the indicative sentences for the individual offences will be reduced by one year and nine months for the count which has been quashed, the respondent submitted, correctly, that there would be no necessary variation of the aggregate sentence. In circumstances where there was otherwise no challenge to the findings of the sentencing judge, nor to the exercise of discretion in imposing the sentence, the Court should accept those findings and the sentence in fact imposed as being within the appropriate range, based on the remaining convictions. 2. The principles to be applied by the Court where error has been identified were restated by the High Court in DL v The Queen [2] in the following terms: "9 In a case in which the Court of Criminal Appeal finds that the sentencing judge's discretion has miscarried, its power to re-sentence is enlivened unless, in the exercise of its discretion, the Court of Criminal Appeal is satisfied that no other (generally lesser) sentence is warranted in law. As explained in Kentwell v The Queen, the Court of Criminal Appeal exercises an independent sentencing discretion in that it is required to form its own view of the appropriate sentence, rather than confining itself to the determination of whether the identified error infected the sentence imposed below. Exceptional cases apart, the Court of Criminal Appeal's determination of the appropriate sentence is determined on the material that was before the sentencing judge, the sentencing judge's unchallenged factual findings, and any relevant evidence of the offender's post‑sentence conduct." [Footnotes omitted.] 1. Those principles should be applied in reconsidering a sentence under s 7(1), the language of which substantially mirrors that of s 6(3). For reasons which will be identified shortly, the changed basis on which the applicant stands for resentencing (namely the removal of one conviction) will have little effect on his aggregate sentence. If it is taken as a proportion of the total of the indicative sentences, the arithmetical effect, as noted in the first judgment of this Court at [247], would be to reduce the aggregate sentence by five months and the non-parole period by three months. 2. Rather, as the solicitor for the applicant noted in her affidavit and her written submissions, the most significant issue on resentencing relates to the conditions of incarceration on the applicant, taking into account his age and poor health. Age and poor health alone were fully understood and accounted for in the sentencing judge's reasons and in the sentence imposed. The applicant was 78 years of age at the time of sentencing and suffered from significant cardiomyopathy, tachycardia, kidney disease and other medical issues. He also suffered from a diagnosed psychiatric condition, identified as an adjustment disorder with depressed mood and anxiety. The medical records annexed to Ms Randall's affidavit confirm that his significant medical issues have not abated, but rather that his condition has deteriorated with age (he is now 82 years) and through the conditions of his incarceration. 3. However, the conditions of incarceration have turned out to be significantly more stressful than had been anticipated at the time of sentencing, on 24 May 2019, well before the COVID-19 pandemic. There are three elements to be addressed regarding the impact of the pandemic on the conditions of his incarceration. First, there is a heightened degree of stress and anxiety which arose from the risk of infection in an elderly man with serious health issues. There is no doubt that had he been infected with COVID-19 the result may well have been fatal. 4. Secondly, there were the lengthy periods of lockdown during which he was not allowed to leave his cell. He kept a diary, which Ms Randall has helpfully summarised. It indicates that he was locked in his cell for 155 days during the period from February 2020 through to December 2022. In late May and early June 2022, he had no access to showers for a period of 15 days. As these facts are not challenged, they should be accepted for the purposes of resentencing. Whatever the possible justification for not providing showers for more than two weeks, it was an inhumane condition of incarceration. 5. Thirdly, whilst, prior to the pandemic he would have visits on a weekly basis from a family member and fortnightly visits from his wife, for approximately 9-12 months from the commencement of the pandemic no visits were permitted. Further, because his wife lived in Queensland and there were strict regulations regarding movement between New South Wales and Queensland, there was a lengthy period during which she was unable to visit him, although AVL facilities were available. 6. From the early days of the pandemic, the Courts have accepted that such matters should be taken into account. For example, in McKinnon v R [3] , the Court was required to resentence an offender who had initially been sentenced, on 15 April 2019, before the onset of the pandemic, for offences against the Drug Misuse and Trafficking Act 1985 (NSW). As in this case, error being accepted, it was necessary for the Court to exercise its own separate and independent discretion in determining the appropriate sentence, in accordance with Kentwell v The Queen. [4] With respect to COVID-19, Payne JA stated: "32 The applicant, in common with other prisoners in New South Wales during the COVID pandemic, has been in physical isolation from the outside world, although more recently, he has been able to have video contact with his family. The evidence on resentence demonstrates that the effect of the applicant's imprisonment on his wife and children has been significant. Whilst none of this evidence is evidence of extraordinary hardship, the more onerous conditions of incarceration due to the pandemic nonetheless should be taken into account in sentencing: Scott v R [2020] NSWCCA 81." 1. In Scott, the offender was charged with three acts of indecency and one count of sexual intercourse in relation to his granddaughter who was then aged 8 years. He was sentenced to an aggregate term of six years with a non-parole period of three years and six months. In the somewhat unusual circumstances of the case, the Court accepted that the sentence was manifestly excessive. In resentencing, the Court took into account the offender's advanced age (being 71 at the time of resentencing) and the fact that he suffered from asthma and other medical conditions "that make him more vulnerable to potentially grave complications should he contract the virus". Whilst noting that at that time COVID-19 had not spread within the prison population, Hamill J observed that the steps taken by the Department to minimise the risk of the virus entering the prisons, including suspending all social and family visits, was "a matter that makes the conditions of incarceration of most inmates more onerous". [5] 2. Recently, in PH v R, [6] again on resentencing, Cavanagh J stated: "70 … The applicant is currently 34 years of age. He has been in custody since 21 February 2020. During nearly the whole of that period, he has been subject to significant lockdowns as a result of COVID-19. He has spent periods locked in his cell, sometimes without the availability of a shower. He has spent periods locked down in maximum security. For most of the period, visitors have not been permitted. I accept that the applicant's time in custody – from almost the time when he entered custody until 2023 – has been made more onerous as a result of COVID-19." Resentencing 1. Each of the matters identified by the solicitor for the applicant should be accepted as rendering the period of incarceration over the last three years more onerous than would have been the case in more normal times. The Director did not dispute the relevance of this material, but rather emphasised that there is a limit to which such circumstances can be relied upon to reduce what would otherwise be the minimum appropriate period of custody. 2. Whilst that may well be so, each case must be addressed by reference to its particular circumstances. The custodial penalty is the deprivation of liberty; it should not be the conditions of imprisonment. In the present case, the effects of the unusually harsh conditions of imprisonment were exacerbated by the age and ill health of the applicant. The material before this Court referred to admissions to the Prince of Wales Hospital for various treatments and procedures, including colorectal surgery in March 2023. A medical history dated 11 November 2022, when the applicant was admitted having suffered for some four weeks from bruising and swelling to the left lower leg, recorded that he had "lost normal cell accommodation, had to sleep on floor for 11 days as both bunks occupied, no mattress". According to the diary notes, that was not a period during which the prison was locked down. Again, such conditions were inhumane. 3. At the time of sentencing, the judge had available a report from Dr Stafford who had been the applicant's cardiologist since 1997. In 2019, Dr Stafford estimated a life expectancy of one-three years, although he "allows for a longer period". [7] Clearly the applicant has exceeded that expectation, but the expectation indicates a view as to the severity of his medical conditions. His conditions of incarceration must be viewed in that context. 4. Returning to the nature of the offending, the details have been extensively recounted in the earlier judgment of this Court and need not be repeated. All the relevant factors were addressed by the sentencing judge in terms which, as noted above, have not been challenged in this Court. As the judge noted, three of the offences of rape carried a maximum penalty of life imprisonment; two other offences of buggery carried a maximum penalty of 14 years imprisonment. Other offences carried maximum penalties varying from two-five years' imprisonment. [8] The judge noted that there had been no expression of remorse. [9] That remains the case. 5. The offending was opportunistic and exploitative. It was directed against girls (and one boy) in institutions in which he was employed as a custodial officer. Several of the offences involved significant levels of physical violence. The judge described him as operating in a "cruel and dismissive way to the detainees under his supervision". [10] While the judge accepted that the offending occurred more than 45 years prior to the sentencing hearing, and that he was now a "changed man", she also noted that the offending was not by way of "a momentary lapse" but extended over approximately three years. [11] 6. There were three assaults which carried indicative sentences lower than the one year and nine months imprisonment indicated in relation to count 24, but count 24 was one of the least serious of the offences. Any reduction in sentence as a direct result of the quashing of that conviction must be limited to a matter of months. Again by reference to the indicative sentences, approximately 60% of the total of 75 years was attributable to three rapes and two offences of buggery. No sentence is appropriate other than one which gives full recognition to the severity of that offending. The putative individual sentences indicated by the sentencing judge, other than with respect to count 24, should be confirmed. 7. However, some greater reduction is now appropriate in circumstances where it is known that the offender has spent three years in custody in conditions which were not only far more onerous than would be expected absent the pandemic, but were conditions which must have impacted more heavily on a man of his years and ill health than they would on less vulnerable members of the prison community. 8. I would impose an aggregate sentence of 20 years imprisonment, with a non-parole period of 12 years. That proportion reflects the finding of special circumstances made by the sentencing judge, which should be confirmed, and reflects the proportion between the head sentence and the non-parole period which she adopted and which is appropriate in the circumstances. 9. Accordingly, I propose the following orders: 1. Quash the sentence imposed in the District Court and resentence the applicant to an aggregate term comprising a non-parole period of 12 years and an additional term of 8 years. 2. The sentence will date from 24 May 2019. Accordingly, the offender will be eligible for release on parole on 23 May 2031. 1. BUTTON J: I agree with Basten AJA. 2. WILSON J: The Court having quashed the verdict of guilty entered on one count, the question of re-sentence must be considered, with some reduction on the sentence passed at first instance appropriate. I agree with the orders proposed by the Presiding Judge. ********* Endnotes 1. Valentine v R [2023] NSWCCA 43 at [247]. 2. (2018) 265 CLR 215; [2018] HCA 32 (Bell, Keane, Nettle, Gordon and Edelman JJ). 3. [2020] NSWCCA 106 (27 May 2020) (Payne JA, Beech-Jones and N Adams JJ agreeing). 4. (2014) 252 CLR 601; [2014] HCA 37 at [35]. 5. Scott at [166]. 6. [2023] NSWCCA 176 (14 July 2023) (Cavanagh J, Simpson AJA and Rothman J agreeing). 7. Sentencing judgment at [108]. 8. Sentencing judgment at [96]-[102]. 9. Sentencing judgment at [103]. 10. Sentencing judgment at [119]. 11. Sentencing judgment at [118]-[120]. 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