Valentine v R

Court of Criminal Appeal (NSW)|2020-05-19|Before: Harrison J, Hulme J, Wright J

Solicitors: Legal Aid NSW (Applicant) Solicitor for Public Prosecutions (Crown) File Number(s): 2016/330289 Decision under appeal Court or tribunal: District Court of New South Wales Jurisdiction: Criminal Date of Decision: 16 July 2019 Before: Harris DCJ File Number(s): 2016/330289

Judgment

HARRISON J: I agree with Wright J.
R A HULME J: I agree with Wright J.

Background

The applicant was arrested on 4 November 2016 and was charged with two offences: one of possessing child abuse material; and, one of disseminating child abuse material. He was granted conditional bail on the following day.
On 25 October 2017 at Campbelltown Local Court, the applicant pleaded guilty in respect of each offence, whereupon he was committed to the District Court for sentence.
On 15 March 2019, the applicant failed to attend at Campbelltown District Court for a hearing on sentence and a warrant was issued for his arrest. He was taken into custody on 18 March 2019 and has remained in custody since that date.
After a sentence hearing on 12 July 2019, on 16 July 2019 Harris DCJ imposed the following sentences: Offence Sentence 1 Possess child abuse material, contrary to s 91H(2) of the Crimes Act 1900 (NSW) for which the maximum penalty is imprisonment for 10 years. 2 years and 8 months commencing on 14 May 2019 and expiring on 13 January 2022 with a non-parole period of 16 months expiring on 13 September 2020. 2 Disseminate child abuse material contrary to s 91H(2) of the Crimes Act 1900 (NSW) for which the maximum penalty is imprisonment for 10 years. 12 months commencing on 14 March 2019 and expiring on 13 March 2020.

Thus, the applicant's effective sentence is imprisonment for 2 years and 10 months, [1] commencing on 14 March 2019 and expiring on 13 January 2022, with a non-parole period of 18 months expiring on 13 September 2020.

Ground of appeal

The applicant seeks to rely on only one ground of appeal, namely, that the sentencing judge erred in failing to have regard to the utilitarian benefit of the pleas of guilty.
In order to consider this ground, it is necessary to make some observations concerning the submissions made at the sentence hearing and to review the learned sentencing judge's remarks on sentence.

Submissions at sentence hearing

The Crown Sentence Summary noted that the applicant had been committed for sentence on 25 October 2017 from Campbelltown Local Court.
In the applicant's written submissions on sentence, the pleas of guilty were referred to at pars 4.2 and 4.3 as follows: "4.2 Mr Valentine pleaded guilty in the Local Court and was committed for sentence on 25 October 2017. It is respectfully submitted that Mr Valentine's plea has substantial utilitarian value and a 25% discount is appropriate in this case. 4.3 Further, the plea of guilty is evidence of Mr Valentine's willingness to accept responsibility for the offence. This is an issue separate from the utilitarian value of the plea." (Footnotes omitted)
At the sentence hearing, the utilitarian value of the guilty pleas was not mentioned during oral submissions.

Remarks on sentence

Harris DCJ commenced her remarks, delivered orally on 16 July 2019, by identifying the two offences with which the applicant was charged and noting the maximum penalty of 10 years for each offence.
Her Honour then observed that general deterrence was a paramount consideration for offences involving the possession and dissemination of child abuse material, citing R v Booth [2009] NSWCCA 89 at [40]-[44].
The sentencing judge set out the facts that were agreed between the parties and referred to some of the applicant's answers in an electronically recorded interview. It was noted that the applicant's laptop contained child abuse material in both category one and two and those categories were explained. Her Honour also provided a summary of the material and of the descriptions of some of what was depicted.
Harris DCJ then turned to consider objective seriousness expressly by reference to the factors set out in Minehan v R [2010] NSWCCA 140 at [94]; (2010) 201 A Crim R 243. Her Honour's conclusion in respect of sequence 1 was that the offence could be characterised as "slightly less than in the mid-range of seriousness". As to sequence 2, the learned sentencing judge took into account: the relatively unsophisticated manner of dissemination; the fact that it was not possible to determine whether the material disseminated was category one or category two; and that, while there was no evidence that the applicant benefited financially from the dissemination, the child abuse material was disseminated in order to receive a benefit in the form of access to different or additional material of this nature. On these bases, it was concluded that the offence was "towards the low range of objective seriousness".
In relation to the applicant's subjective features, her Honour took into account that the applicant was 38 at the time of the offending in 2016 and 41 at the time of sentence. His lack of relevant criminal history and his otherwise being a person of good character were also accepted.
The learned sentencing judge found that the applicant was one of four children with three sisters and two additional stepsisters. While he did not excel at school and experienced some learning difficulties, he left in year 12 and had a solid and impressive work history. According to her Honour's findings, the applicant has had a small number of lengthy relationships with adult female partners, although he had not been in a relationship for the four years preceding his arrest and this seemed to have coincided with the commencement of his offending activities.
Harris DCJ then considered the applicant's claims that he was sexually assaulted as a child by both his father and his uncle and that his father had abused his other children. The applicant relied upon accounts given by him as recorded in the reports of Dr Olav Nielssen, a psychiatrist, and Mr Borkowski, a psychologist to support such claims, although he told Mr Borkowski that he had no memory of being sexually abused as a child by his father. Dr Nielssen and Mr Borkowski both recorded being told that when he was 21 the applicant was staying with his father and found a diary which said that his father had videos or pictures of the sexual abuse of the children. The applicant told both experts that the reason for his initially accessing child abuse material was in search of images or videos taken by his father and posted online.
The applicant did not give evidence and her Honour noted that: 1. there was no evidence that the applicant had any knowledge that there was any posting of such material online; 2. there was no evidence, other than the applicant's statements to the psychiatrist and psychologist, that he was sexually assaulted by his father, that his father had recorded in a diary that he had filmed the sexual assault or that such a diary even existed; and 3. there were internal inconsistencies between what he had reported to those experts.
As to claims of abuse of other family members by the applicant's father and a report of finding his father's diary recording the abuse being made to police, the sentencing judge noted the lack of supporting evidence, whether from witnesses or documents.
Her Honour did not accept on the balance of probabilities that the reason why the applicant started viewing images and videos of child sexual abuse in about 2012 was that he was trying "to find the videos of us and I got caught up looking at them".
In these regards, her Honour concluded: "I do not find that the offender's moral culpability is reduced by his claims of sexual abuse, which I find difficult to accept, nor do I find it reduced by the reason proffered for his accessing child abuse material, at least initially, which I reject. … [After considering relevant authorities, her Honour continued:] As I have noted, I am not satisfied that there was sexual abuse of the offender in the manner he has recently described. Even if I were so satisfied of the sexual abuse, I would not be satisfied of a link between the sexual abuse and the offender's initial access or ongoing access of child abuse material. In that regard, I note Dr Nielssen's opinion that the offending likely commenced as a flow on from access to online adult pornography."
The sentencing judge acknowledged that the applicant's anxiety and depressive symptoms likely led to his social withdrawal and an environment more conducive to antisocial and criminal behaviour, although neither the psychologist nor the psychiatrist went as far as to diagnose a major depressive disorder.
However, Harris DCJ did not accept the applicant's denial, made to the psychiatrist and the psychologist, of having an attraction to pre-pubescent children.
The learned sentencing judge accepted and took into account: 1. the applicant's history of family dysfunction, including physical violence at the hands of his mother and the absence of a father in his upbringing; and 2. the psychologist's description of the applicant as having a socially introverted personality and being socially awkward.
As to remorse, Harris DCJ was of the view that there was insufficient evidence before her such that she would find the applicant was generally remorseful and she observed that it had not been submitted that he was remorseful. In this regard, the remarks on sentence included: "There was no remorse expressed to the experts and no evidence given before me. What was submitted on his behalf was that the plea of guilty is evidence of a willingness to accept responsibility for his actions. It is equally capable, in my view, of an acceptance by the offender of the inevitable, given a strong Crown case. Given my rejection of the offender's claims as to why he began viewing the material, I do not find that his plea reflects his willingness to accept responsibility or that he has demonstrated an insight, indeed, he does not accept responsibility for his actions, but placed blame on his father and his father's diary entries."
This was the only reference to the pleas of guilty in the remarks on sentence.
Under the heading "Prospects of Rehabilitation", her Honour referred to the psychologist's and the psychiatrist's findings that the applicant was a low risk of reoffending. She also noted that it was apparent that the applicant had a tendency for social withdrawal and that he would be greatly assisted with ongoing treatment for his sexual offending and his anxiety disorder and she indicated that she would "find special circumstances to promote his rehabilitation and reduce any risk of recidivism."
On the basis of the serious nature of the offending, general and specific deterrence and the need for denunciation, her Honour was of the view that only a sentence of full-time imprisonment could be imposed.
Taking into account the time already spent in custody, the sentences outlined above were imposed. No mention was made of any discount to reflect the utilitarian value of the guilty pleas.
It was noted that the sentences were partially accumulated to reflect a nexus between possession and dissemination as well as the need to impose a separate punishment for disseminating child abuse material to others.
Her Honour found special circumstances based upon the applicant's need for extended supervision upon his release into the community to deal with his anxiety disorder and to address the risk factors for his sexual offending behaviour.

Error established

Since proceedings for the two offences were commenced before 30 April 2018, Pt 3 (which includes s 22) of the Crimes (Sentencing Procedure) Act 1999 (NSW) (the Sentencing Procedure Act) as in force prior to 30 April 2018 continues to apply in the present case rather than the provisions of Div 1A of the Sentencing Procedure Act. [2]
Section 22 of the Sentencing Procedure Act, as previously in force, provided: "(1) In passing sentence for an offence on an offender who has pleaded guilty to the offence, a court must take into account - (a) the fact that the offender has pleaded guilty, and (b) when the offender pleaded guilty or indicated an intention to plead guilty, and (c) the circumstances in which the offender indicated an intention to plead guilty, and may accordingly impose a lesser penalty than it would otherwise have imposed. (1A) A lesser penalty imposed under this section must not be unreasonably disproportionate to the nature and circumstances of the offence. (2) When passing sentence on such an offender, a court that does not impose a lesser penalty under this section must indicate to the offender, and make a record of, its reasons for not doing so. (3) Subsection (2) does not limit any other requirement that a court has, apart from that subsection, to record the reasons for its decisions. (4) The failure of a court to comply with this section does not invalidate any sentence imposed by the court."
In R v Thomson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309, this Court (Spigelman CJ with Wood CJ at CL, Foster AJA, Grove and James JJ agreeing) adopted the following relevant guideline, at [160]: "(i) A sentencing judge should explicitly state that a plea of guilty has been taken into account. Failure to do so will generally be taken to indicate that the plea was not given weight. (ii) Sentencing judges are encouraged to quantify the effect of the plea on the sentence insofar as they believe it appropriate to do so. This effect can encompass any or all of the matters to which the plea may be relevant - contrition, witness vulnerability and utilitarian value - but particular encouragement is given to the quantification of the last mentioned matter. Where other matters are regarded as appropriate to be quantified in a particular case, e.g. assistance to authorities, a single combined quantification will often be appropriate. (iii) The utilitarian value of a plea to the criminal justice system should generally be assessed in the range of 10-25 percent discount on sentence. The primary consideration determining where in the range a particular case should fall, is the timing of the plea. What is to be regarded as an early plea will vary according to the circumstances of the case and is a matter for determination by the sentencing judge. (iv) In some cases the plea, in combination with other relevant factors, will change the nature of the sentence imposed. In some cases a plea will not lead to any discount."
It has, however, been established that the range of discounts referred to in (iii) above is only a guideline and creates no presumption or entitlement to a particular discount to reflect the utilitarian value of an offender's plea of guilty: see for example Hallak v R [2014] NSWCCA 48 and the authorities there cited.
In the present case, it was mandatory for the sentencing judge to take into account not only the fact of the applicant's pleas of guilty, but also when the applicant pleaded guilty and in what circumstances, under s 22(1).
Further, if the sentencing judge had decided that, despite the pleas, she would not impose a lesser penalty than she would otherwise have imposed, her Honour was required by s 22(2) to indicate to the applicant, and make a record of, her reasons for not doing so.
In her remarks on sentence, although the sentencing judge referred to the pleas when finding that they did not demonstrate that the applicant was willing to accept responsibility for, or that he had an insight into, his offending, her Honour did not expressly indicate: 1. whether or not she otherwise took the fact, timing and circumstances of the guilty pleas into account; or 2. whether or not she decided not to impose a lesser penalty, notwithstanding the pleas, and her reasons for doing so.
Moreover, since the guilty pleas were not mentioned by her Honour or by either of the legal representatives during oral submissions and there was no indication in the specification, or from the manner of calculation, of the sentences whether or not any discount had been applied, it is not possible to infer that the pleas were addressed as required by s 22(1), even though the relevant matters were not expressly referred to in the remarks, as occurred in Raad v R [2015] NSWCCA 276 or Zhang v R [2018] NSWCCA 82.
The Crown submitted that there was insufficient basis for the Court to conclude that her Honour must have taken the early pleas into account. On that basis, the Crown conceded that the failure to refer to the utilitarian value of the pleas in her Honour's remarks amounted to error.
The applicant submitted that "where there is a real possibility that a plea was not properly considered, failure to refer to the issue in the judgment should be treated as a material error (Lee v R [2016] NSWCCA 146 at [37])". [3]
In Lee v R, Basten JA and McCallum J (as her Honour then was) (Davies J agreeing) considered at some length the rationale for requiring reasons to be given in a context such as the present and a number of relevant authorities. Their Honours concluded, at [37]: "Because the plea is a mandatory consideration (s 22 says the court "must take [it] into account"), it must form part of the reasoning process and should therefore be addressed in the judgment. If the appellate court can be affirmatively satisfied that the plea was taken into account and an appropriate discount allowed, the failure to so state in the sentencing judgment may be treated as an immaterial error. Where there is a real possibility that it was not properly considered, failure to refer to the issue in the judgment should be treated as a material error."
In the circumstances referred to above, I am satisfied that in this case there is a real possibility that the pleas were not properly considered, and accordingly failure to refer to the issue in the remarks on sentence constitutes a material error.
For these reasons, leave to appeal should be granted and, subject to the exercise of the sentencing discretion leading to the conclusion that a lesser sentence is warranted in law, the appeal should be allowed and the sentences quashed.

Resentencing

Thus, this Court's power to re-sentence under s 6(3) of the Criminal Appeal Act has been enlivened, unless in the exercise of its discretion the Court is satisfied that no other (generally lesser) sentence is warranted in law: DL v The Queen (2018) 265 CLR 215; [2018] HCA 32 (DL) at [9].
In exercising its re-sentencing discretion, the Court is not to assess whether and to what degree the error influenced the original sentences, rather it is the duty of the Court to exercise the discretion afresh, taking into account the purposes of sentencing and the factors required by law to be considered: Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 (Kentwell) at [42], endorsing the analysis of Spigelman CJ in Baxter v R [2007] NSWCCA 237 at [19].
Absent exceptional circumstances, of which there is none in the present case, the appropriate sentence is to be determined on the material that was before the sentencing judge, the sentencing judge's unchallenged factual findings, and relevant evidence of post‑sentence conduct or events, if any: DL at [9]; Kentwell at [43].
In the present case, the learned sentencing judge's findings on sentence were not challenged. In addition to the material before Harris DCJ, in this Court the applicant also relied upon: 1. an affidavit from the applicant in which: 1. he expressed his remorse and stated that he realised that the offences of which he was convicted are not victimless crimes; 2. he gave details of some of the courses he had completed while in custody by way of vocational training and courses designed to address his offending; 3. he explained his proposed living and employment arrangements following his release to parole; and 4. he gave details of the impact of the COVID-19 pandemic on conditions in custody. 1. an affidavit from his mother explaining some of the difficulties experienced by the applicant while in custody with the limited contact possible as a result of the restrictions imposed as a consequence of the COVID-19 pandemic; 2. affidavits from the applicant's solicitor annexing: 1. four certificates relating to programs completed by the applicant while custody; 2. a report titled "Report on COVID-19 and the impact on New South Wales prisoners" dated 16 April 2020 by Prof Tony Butler, Prof Raina MacIntyre, Dr Paul Simpson and Prof Michael Levy commissioned by Legal Aid New South Wales from the Kirby Institute at the University of New South Wales; 3. a report titled "COVID-19 and Mental Health Issues for NSW Prisoners" dated 9 April 2020 by Dr Andrew Ellis, forensic psychiatrist; and 4. a document downloaded from the website of Corrective Services New South Wales on 18 May 2020 headed "COVID-19 (coronavirus) response".
In light of all that material, it is necessary to consider whether another sentence is warranted in law.

Maximum penalties

The maximum penalty for both offences is 10 years' imprisonment and this should be taken into account as a statutory guidepost in determining the appropriate sentence.

Objective seriousness

The unchallenged findings of the learned sentencing judge were that sequence 1 was "slightly less than in the mid-range of seriousness" and sequence 2 was "towards the low range of objective seriousness", in light of her Honour's findings as to the nature and circumstances of the offending, which have been referred to above and which are set out in more detail in her Honour's remarks.

Subjective factors

The findings as to the applicant's subjective features were unchallenged. I have taken them into account but it is not necessary to repeat them here.

Early pleas of guilty

The applicant pleaded guilty to both charges at an early stage and, in my view, there are no circumstances which would justify not allowing a 25% discount. Consequently, the sentences should be discounted by that percentage.

Subsequent conduct of the applicant, remorse and rehabilitation

I have also taken into account the courses the applicant has completed in custody. These included: 1. vocational courses in logistics, a barista course and courses relating to food preparation; 2. the Salvation Army Positive Lifestyle Program; and 3. the Corrective Services pre-release Journey Program.
While the sentencing judge's findings in relation to remorse and prospects of rehabilitation, made at the time of sentencing, were not challenged, I have taken into account the applicant's more recent statements as to his understanding of the nature of the offending and his remorse. I also accept that the courses he has undertaken may have improved his prospects of rehabilitation, to some extent.

COVID-19

The applicant also relied upon evidence concerning the COVID-19 pandemic and its impact upon him while in custody.
In particular, I accept and have taken into account the opinions of Dr Ellis concerning the potential impact of measures taken in response to the COVID-19 pandemic on the mental health of persons in custody in New South Wales, although this general evidence was not entirely applicable in the applicant's case. In addition, I have borne in mind the more general material in the report commissioned by Legal Aid New South Wales from the Kirby Institute regarding the impact of COVID-19. It can be noted that this report may now be somewhat out of date in relation to the assumptions made, for the purposes of the report, as to the likely or possible progress of the disease.
Further, I have had regard to the information in the "COVID-19 (coronavirus) response" from the Corrective Services including that: 1. Corrective Services works closely with Justice Health and Forensic Mental Health Network as well as NSW Health to prevent and manage potential cases of COVID-19 within correctional centres and workplaces. 2. As at 3 May 2020 there have been no confirmed cases of COVID-19 within the inmate population in New South Wales and no Corrective Services correctional centre staff have tested positive. 3. Corrective Services has been implementing a range of measures to reduce the risk of COVID-19 entering their workplaces. 4. The steps that Corrective Services have taken in relation to inmate health and safety are also detailed in the response.
I accept that Corrective Services have taken steps which have proved effective, to date, in avoiding the risk of COVID-19 entering correctional centres in New South Wales. Nonetheless, these steps have had significant negative impacts upon inmates' well-being as outlined, for example, in the applicant's and his mother's affidavits. Given that the applicant is presently due for release to parole on 13 September 2020, even if the COVID-19 pandemic does not worsen and restrictions are gradually lifted, the applicant will have been adversely affected by the measures taken to deal with the pandemic for a substantial portion of his sentence.

Resentence

In a case such as this, general deterrence is of particular significance since it is the paramount consideration for offences involving the possession and dissemination of child abuse material: R v Booth [2009] NSWCCA 89 at [39]-[44].
In addition, specific deterrence has a not insubstantial role to play in sentencing in the present case, especially given the potential it has to reinforce the disincentive for the applicant to reoffend, having regard to the psychiatric and psychological evidence before the Court and the applicant's affidavit.
Further, the sentences in the present case should also be such as to meet the purposes of ensuring that the applicant is adequately punished for the offences, denunciation of the conduct involved in these offences, and recognising the harm done to the community and to those depicted in the material the subject of the offences. In all the circumstances, I am satisfied that no penalty other than imprisonment is appropriate.
While there is a connection between the possession and the dissemination offences, the dissemination offence involved discrete conduct of emailing material for personal gain and thus concerned a different type of criminality from the possession. A degree of accumulation is required to reflect the totality of the offending.
In relation to determining an appropriate non-parole period in respect of the sequence 1 offending, I find, for substantially the same reasons as the sentencing judge found, that there are special circumstances because of the applicant's need for extended supervision upon his release into the community to deal with his anxiety and other mental health issues as well as to address the risk factors in relation to his sexual offending behaviour, as the applicant effectively acknowledged in his affidavit. In addition, in light of the sentence proposed to be imposed in respect of sequence 1, the proposed accumulation and the fact that the proposed sentence for sequence 2 has expired, no purpose is served by setting a non-parole period in respect of sequence 2.
It was not in dispute that any sentence should date from 16 March 2019 to take into account two full days in custody from the applicant's arrest on 4 November 2016 until he was released on bail on 5 November 2016 and then his arrest on warrant on 18 March 2019.
Having regard to the objective seriousness of each offence and tempering the determination by the subjective and other matters referred to above, I propose sentences as follows: Offence Sentence Starting point: 3 years. 1 Possess child abuse material, contrary to s 91H(2) of the Crimes Act 1900 (NSW) for which the maximum penalty is imprisonment for 10 years. 25% discount applied: 2 years 3 months commencing on 16 May 2019 and expiring on 15 August 2021. Non-parole period: 1 year 2 months expiring on 15 July 2020. 2 Disseminate child abuse material contrary to s 91H(2) of the Crimes Act 1900 (NSW) for which the maximum penalty is imprisonment for 10 years. Starting point: 12 months. 25% discount applied: 9 months fixed term commencing on 16 March 2019 and expiring on 15 December 2019.

The effective total sentence proposed is one of 2 years and 5 months with a non-parole period of 16 months.
As these sentences would be less than the sentences imposed by the District Court, the sentences of the District Court should be quashed and fresh sentences should be imposed.

Orders

Accordingly, the orders I propose are: 1. Grant the applicant leave to appeal against sentence. 2. Allow the appeal against sentence. 3. The sentences imposed in the District Court on 16 July 2019 are quashed. 4. The applicant is sentenced as follows: 1. In respect of sequence 2, imprisonment for 9 months commencing on 16 March 2019 and expiring on 15 December 2019. 2. In respect of sequence 1, imprisonment with a non-parole period of 1 year and 2 months commencing on 16 May 2019 and expiring on 15 July 2020 and a balance of the term of 1 year and 1 month expiring on 15 August 2021. The earliest date the applicant will become entitled to release on parole is 16 July 2020.

Endnotes

Her Honour's statement in the remarks on sentence that the practical effect of the sentence was "a total sentence of two years and eight months" appears to have been a calculation error made when delivering oral remarks.
See cll 88-90 of Sch 2 to the Sentencing Procedure Act.
Applicant's written submissions of 24 February 2020 at par 16. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 04 June 2020

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