Brereton JA at [1]; Adamson J at [80]; Bellew J at [221]
Decision:
Conviction appeal
(1) Refuse leave to appeal against the conviction.
Sentence appeal
(1) Leave to appeal against sentence is granted.
(2) The appeal is allowed.
(3) The sentence imposed in the District Court is quashed.
(4) In lieu thereof, the applicant is sentenced to imprisonment for 1 year and 10 months commencing on 24 June 2020 and expiring on 23 April 2022.
(5) Specify a non-parole period of 14 months imprisonment commencing on 24 June 2020 and expiring on 23 August 2021.
Catchwords:
CRIMINAL LAW — Appeals — Appeal against conviction — Applicant pleaded guilty to recklessly dealing with the proceeds of crime — circumstance where the Crown put back to the applicant an offer she had made pre-committal — whether the applicant’s plea was entered and continued in circumstances that gave rise to a miscarriage of justice — the applicant’s trial counsel and solicitors were experienced, competent and diligent — agreed facts were as favourable to the applicant as they could have been — the applicant understood the nature of the charge and strength of the crown case — no evidence to support the submission that the prosecuting authorities induced the applicant to plead guilty by maintaining the charge against her children — highly significant that when the applicant made the offer pre-committal it was not dependent on the withdrawal of charges against her children — leave to appeal against conviction refused
CRIMINAL LAW – Offences – Sentence – Dealing recklessly with the proceeds of crime – Whether failures on the part of counsel gave rise to a miscarriage of justice – Whether sentencing judge erred in assessing the objective criminality of the offending and gave disproportionate weight to agreed facts – Whether failure on the part of the sentencing judge to attribute appropriate weight to the applicant’s subjective circumstances – No such errors on the part of counsel – No such errors on the part of the sentencing judge
CRIMINAL LAW – Sentence – Complaint of unjustified disparity – Where differences in sentences imposed upon the applicant and her co-offender explained by the differences in the objective circumstances of the offending the respective roles played – No unjustified disparity
CRIMINAL LAW – Sentence – Complaint of manifest excess arising from the application of a 10% discount to reflect the applicant’s plea of guilty – Where the applicant had offered to plead guilty before being committed for trial – Where the Crown had rejected that plea – Where that plea was ultimately accepted – Applicant’s offer not recorded in case conference certificate – Requirement to do so overlooked – Consideration of legislative provisions creating the Early Appropriate Guilty Plea Scheme – Necessity to adopt a construction which did not result in manifest injustice…
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.
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Details
AGLC
Ke v R [2021] NSWCCA 177
Case
[2021] NSWCCA 177
Decision Date
CaseChat Overview and Summary
The case of Ke v R concerns an appeal against conviction and sentence. The applicant pleaded guilty to the charge of recklessly dealing with the proceeds of crime. The appeal raised issues regarding the voluntariness of the plea and the fairness of the sentencing process. The High Court of Australia was called upon to determine whether the plea was made in a context that resulted in a miscarriage of justice, and whether the sentence was just and proportionate.
The court examined whether the applicant's plea was entered voluntarily, considering the experience and competence of the applicant's legal representatives, the strength of the Crown's case, and the agreed facts. It was found that the applicant's counsel were experienced, competent, and diligent, and that the agreed facts were as favourable to the applicant as possible. The court concluded that there was no evidence to suggest that the prosecuting authorities coerced the applicant into pleading guilty by threatening to proceed with charges against her children. Furthermore, the court found no errors in the sentencing judge's assessment of the objective criminality of the offending or in the consideration of the applicant's subjective circumstances.
The court also addressed the issue of whether the sentence imposed was disproportionate or manifestly excessive. It was determined that the differences in sentences between the applicant and her co-offender were justified by the differences in their respective roles and the objective circumstances of the offending. The court further considered the applicant's complaint about the application of a 10% discount for her plea of guilty. The court found an error in the proceedings as the applicant had previously offered to plead guilty before being committed for trial, and this was not recorded in the case conference certificate. As a result, the court ordered that the applicant be resentenced with a 25% discount applied, in accordance with the Early Appropriate Guilty Plea Scheme.
In summary, the High Court found no miscarriage of justice in the plea or the sentence. However, it did identify an error in the application of the Early Appropriate Guilty Plea Scheme and ordered the applicant be resentenced with a 25% discount applied. This decision underscores the importance of accurately recording negotiations and offers in criminal proceedings to avoid manifest injustice.