Valentine v The Queen (No 2) - [2023] NSWCCA 189

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

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.
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.
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.
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).
1. Valentine v R [2023] NSWCCA 43 at [247].
Noting the possibility that the applicant would wish to challenge his…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Valentine v The Queen (No 2)

Details

AGLC: Valentine v The Queen (No 2) [2023] NSWCCA 189
Case: [2023] NSWCCA 189
Decision Date: 31 July 2023

CaseChat Overview and Summary

The matter before the court involved an appeal against sentence by the defendant, Valentine, following his convictions for multiple criminal offences. The appeal was heard in the High Court of Australia, which was tasked with determining whether the original sentence was appropriate in light of one conviction being set aside and the unforeseen conditions of imprisonment during the COVID-19 pandemic. The respondent, The Queen, argued for the maintenance of the original sentence, while the appellant sought a reduction due to the factors mentioned.

The primary legal issue the court had to address was whether the original sentence should be altered given the set aside conviction had a minor effect on the overall seriousness of the offending, and whether the unforeseen onerous conditions of imprisonment during the pandemic warranted a reduction in sentence. The court needed to balance the need for deterrence and denunciation with the principle of proportionality in sentencing.

In delivering the judgment, the court acknowledged that the set aside conviction had a minor impact on the overall seriousness of the offending and that the appellant's offending was not of a particularly serious nature. The court also recognised the unforeseen onerous conditions of imprisonment during the COVID-19 pandemic as an additional factor that warranted consideration. Taking all these factors into account, the court concluded that a reduction in sentence was warranted. The court ordered a resentencing hearing to be held to determine an appropriate reduced sentence for the appellant.

The final orders of the court were that the original sentence be set aside and a resentencing hearing be held to determine a reduced sentence for the appellant, taking into account the minor effect of the set aside conviction on the seriousness of the offending and the unforeseen onerous conditions of imprisonment during the COVID-19 pandemic.

Orders