Ke v R

[2021] NSWCCA 177

Court of Criminal Appeal

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Ke v R [2021] NSWCCA 177

Hearing dates:

7 – 8 July 2021

Decision date:

02 August 2021

Before:

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 being visited on the applicant – Where on a proper construction of the legislation a discount of 25% was warranted – Where the relevant negotiations had taken place prior to counsel who appeared on sentence being retained in the matter – Where Crown did not draw the attention of the sentencing judge to those negotiations – Error established in circumstances where the relevant issues were not raised by the Crown for the consideration of the sentencing judge – Applicant resentenced

STATUTORY INTERPRETATION - Necessity to interpret legislation in a way which avoided manifest injustice and which produced less hardship to the applicant

WORDS AND PHRASES – “offer recorded in a negotiations document”

Legislation Cited:

Crimes (Sentencing Procedure) Act 1999 (NSW), ss 5, 25A, 25B, 25C, 25D, 25E, 25F

Crimes (Sentencing Procedure) Amendment (Sentencing Options) Act 2017 (NSW)

Crimes Act 1900 (NSW), ss 4A, 5, 33, 61R, 93T, 193B, 193C

Criminal Appeal Act 1912 (NSW), s 5

Criminal Code Act 1995 (Cth), s 5.4

Criminal Procedure Act 1986 (NSW), ss 53, 55, 70, 72, 74, 75, 77, 130

Evidence Act 1995 (NSW), s 191

Justice Legislation Amendment (Committals and Guilty Pleas) Act 2017 (NSW), s 2

Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015 (NSW), cl 11

Migration Act 1958 (Cth), ss 501, 501CA

Migration Amendment (Character and General Visa Cancellation) Act 2014 (Cth), s 2(1)

Cases Cited:

AC v R [2016] NSWCCA 107

Afful v R [2021] NSWCCA 111

Angre v Chief of Navy (No 3) [2017] ADFDAT 2

Banat v R [2020] NSWCCA 321

Banditt v The Queen (2005) 224 CLR 262; [2005] HCA 80

Blackwell v R (2011) 81 NSWLR 119; [2011] NSWCCA 93

Borsa v The Queen [2003] WASCA 254

Charlesworth v R (2009) 193 A Crim R 300; [2009] NSWCCA 27

De Simoni v The Queen (1981) 147 CLR 383; [1981] HCA 31

Federal Commissioner of Taxation v Smorgon (1977) 16 ALR 721

Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49

House v The King (1936) 55 CLR 499; [1936] HCA 40

Hura v R (2001) 121 A Crim R 472; [2001] NSWCCA 61

Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37

Kristensen v R [2018] NSWCCA 189

Kumar v The Queen [2014] VSCA 102

Lehn v R (2016) 93 NSWLR 205; [2016] NSWCCA 255

Liberti v The Queen (1991) 55 A Crim R 120

Lowe v The Queen (1984) 154 CLR 606; [1984] HCA 46

Magaming v The Queen (2013) 252 CLR 381; [2013] HCA 40

Maxwell v The Queen (1996) 184 CLR 501; [1996] HCA 46

McLean v R (2001) 121 A Crim R 484; [2001] NSWCCA 58

Meissner v The Queen (1995) 184 CLR 132; [1995] HCA 41

Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26

Public Transport Commission of New South Wales v J Murray-More (NSW) Pty Limited (1975) 132 CLR 336; [1975] HCA 28

R v Baker [2000] NSWCCA 85

R v Birks (1990) 19 NSWLR 677

R v Campbell [1997] 2 VR 585; (1995) 80 A Crim R 461

R v Carkeet [2009] 1 Qd R 190; [2008] QCA 143

R v Chiron [1980] 1 NSWLR 218

R v Coleman (1990) 19 NSWLR 467; 47 A Crim R 306

R v Collis (1989) 43 A Crim R 371

R v Cunningham [1957] 2 QB 396

R v Kennedy [2014] NSWSC 1921

R v Marchando (2000) 110 A Crim R 337; [2000] NSWCCA 8

R v Murphy [1965] VR 187

R v Parkes [2004] NSWCCA 377

R v Pham [2005] NSWCCA 94

R v Pugh (2005) 158 A Crim R 302; [2005] SASC 427

R v Sagiv (1986) 22 A Crim R 73

R v Schelvis (2016) 263 A Crim R 1; [2016] QCA 294

R v SL [2004] NSWCCA 397

R v Stones (1955) 56 SR (NSW) 25

R v Thalari (2009) 75 NSWLR 307; [2009] NSWCCA 170

R v Toro-Martinez (2000) 114 A Crim R 533; [2000] NSWCCA 216

R v Van Hong Pham [2005] NSWCCA 94

Refaieh v R (2018) 272 A Crim R 245 [2018] NSWCCA 72

Ryan v R [2009] NSWCCA 183

Saik v R [2004] EWCA Crim 2936

Sauer v R [2006] NSWCCA 81

State of Victoria v R [2014] VSCA 311

The Queen v Olbrich (1999) 199 CLR 270; [1999] HCA 54

Thompson v Chief of Navy [2015] ADFDAT 1

TKWJ v The Queen (2002) 212 CLR 124; [2002] HCA 46

Tsiakas v R [2015] NSWCCA 187

Wilkes v R (2001) 122 A Crim R 310; [2001] NSWCCA 97

Wong v Director of Public Prosecutions (NSW) (2005) 155 A Crim R 37; [2005] NSWSC 129

Texts Cited:

New South Wales Bar Association Rules, r 33

Category:

Principal judgment

Parties:

Lie Ke (Applicant)
Regina (Crown)

Representation:

Counsel:
R Bonnici (Applicant)
G Newton (Crown)

Solicitors:
Vision Legal Pty Ltd (Applicant)
Office of Director of Public Prosecutions (Crown)

File Number(s):

2018/259332

 Decision under appeal 

Court or tribunal:

District Court

Jurisdiction:

Criminal

Date of Decision:

24 June 2020

Before:

Herbert DCJ

File Number(s):

2018/259332

HEADNOTE

[This headnote is not to be read as part of the judgment]

The applicant pleaded guilty to an offence of recklessly dealing with the proceeds of crime contrary to s 193B(3) of the Crimes Act 1900 (NSW). The substance of the case against the applicant was that she sold baby formula which had been stolen, in circumstances where she was reckless as to that fact. Prior to being committed for trial, the applicant had offered to plead guilty to that offence, but that offer was rejected by the Crown who indicated at that time that it would only accept a plea of guilty to the more serious offence created by s 193B(2) of knowingly dealing with the proceeds of crime. The applicant’s offer had not been recorded in the relevant documentation which was required to be filed pursuant to the Early Appropriate Guilty Plea Scheme. The Crown ultimately accepted the applicant’s offer but the sentencing judge was not made aware of the fact that such offer had been made. The applicant was sentenced to a term of imprisonment of 2 years and 3 months, with a non-parole period of 18 months’ imprisonment. That sentence incorporated a discount of 10% to reflect the applicant’s plea of guilty. The applicant sought leave to appeal against her conviction and sentence. In respect of the appeal against conviction, the applicant asserted that the circumstances in which the plea had been entered gave rise to a miscarriage of justice because:

1. the terms in which the indictment was drafted rendered it bad in law;

2. the plea of guilty which was entered was not attributable to a true consciousness of guilt of the applicant;

3. the advice and conduct of her lawyer(s) was imprudent, inappropriate and/or incorrect, particularly as to the entry of the plea of guilty, and amounted to incompetence;

4. she did not fully understand and/or appreciate the nature and complexity of the charge and the essential elements to which the plea of guilty was entered;

5. the agreed facts were inconsistent with the elements of the offence and were signed without her being given full and proper advice at the relevant time;

6. the plea of guilty was induced by intimidation and/or by unfair and improper undue pressure by the Director of Public Prosecutions;

7. some of the actions and rulings of the judge who presided at the call-over of the matter were questionable and/or erroneous; and

8. some of the actions and comments of the sentencing judge were questionable and/or erroneous.

The applicant pleaded the following as a further ground in support of the application for leave to appeal against her conviction:

1. Any other reasons that may arise in the course of these proceedings and are deemed to be relevant to the Conviction Appeal.

In terms of her application for leave to appeal against sentence, the applicant relied on grounds pleaded in the following terms:

1. her former defence counsel on sentence failed to ask for an adjournment to obtain further instructions and additional expert evidence on the medical and psychological nexus between the psychology report tendered and the state of mind of the applicant at the important time of the offending;

2. her former defence counsel, in his written submissions, inappropriately and incorrectly elevated the applicant’s part in her overall offending;

3. neither the applicant nor the sentencing court were made aware by the legal representatives of the applicant of the extreme hardship and trauma that may arise, and in fact has arisen, because of the full-time custodial sentence imposed upon the applicant’s visa status as a permanent resident;

4. the sentencing judge failed to acknowledge, or even mention, the obvious traversing of the applicant’s plea of guilty on the crucial element of knowledge and/or recklessness based on the applicant’s statements;

5. the sentencing judge gave too much weight and disproportionate weight to the agreed facts vis-à-vis the real role of the applicant’s conduct in the commission of this charge and related stealing offences;

6. the sentencing judge failed to give appropriate consideration and weight to the subjective factors in favour of the applicant;

7. the sentencing judge did not fully and properly consider all the alternatives to a full time term of imprisonment; and

8. the sentencing judge imposed an excessive custodial sentence in the overall and prevailing special circumstances of this matter.

Held:

1. Refusing leave to appeal against conviction;

2. Granting leave to appeal against sentence, allowing the appeal, quashing the sentence imposed at first instance and imposing, in lieu thereof, imprisonment for 1 year and 10 months, with a non-parole period of 14 months.

In respect of the application for leave to appeal against conviction:

Per Adamson J (Brereton JA and Bellew J agreeing):

1. The ultimate question for the Court was whether the applicant had established a miscarriage of justice: at [185].

2. For the purposes of the charge against the applicant, the Crown was required to prove that the applicant was aware of the possibility that the goods were stolen, and decided to deal with them notwithstanding that possibility. Accordingly, the indictment was not bad: at [187].

3. The applicant had not demonstrated that she did not plead guilty through a consciousness of guilt: at [189].

R v Murphy [1965] VR 187 referred to.

1. None of the allegations of incompetence on the part of the applicant’s former legal representatives had been established. In particular, counsel for the applicant on sentence presented as an experienced and competent defence counsel: at [192]-[193].

2. The applicant had been advised, with the assistance of an interpreter, of the elements of the offence and of the strength of the Crown case: at [205].

3. The evidence did not support the submission that the applicant’s plea of guilty had been induced by intimidation and/or by unfair undue pressure on the part of the Director of Public Prosecutions: at [209].

4. There was no error arising from anything said, either by the judge who presided at the call-over of the proceedings or by the sentencing judge: at [213]; [216].

Per Brereton JA:

1. The complaint as to the indictment, and the criticism of the terms in which the concept of recklessness was explained to the applicant by her former counsel, were misconceived. It is not an element of an offence of recklessly dealing with proceeds of crime that an accused knew that the subject matter were proceeds of crime. Where the mental element of an offence is recklessness, the Crown must establish awareness of the possibility of the relevant result or circumstance, and that the accused proceeded with that awareness to perform the relevant act: at [4]-[14].

Blackwell v R; (2011) 81 NSWLR 119; [2011] NSWCCA 93; Banditt v The Queen (2005) 224 CLR 262; [2005] HCA 80; R v Coleman (1990) 19 NSWLR 467; R v Cunningham [1957] 2 QB 396; R v Stones (1955) 56 SR (NSW) 35, considered; R v Campbell [1997] 2 VR 585; (1995) 80 A Crim R 461, not followed.

1. In contending that there was a miscarriage of justice by reason of the circumstances in which the plea had been entered, it was for the applicant to establish that a miscarriage had occurred. Such a finding is not lightly made, and the inevitable pressure involved in plea-bargaining is not a sufficient basis: at [15]-[23].

Kumar v The Queen [2014] VSCA 201; Maxwell v The Queen (1996) 184 CLR 501; [1996] HCA 46; Meissner v The Queen (1995) 184 CLR 132; [1995] HCA 41; Liberti v The Queen (1991) 55 A Crim R 120, considered.

1. Statements attributed to the applicant in a medical report tendered on sentence confirmed the plea of guilty, and demonstrated that the applicant understood the offence to which the plea had been entered. There was no doubt that the plea reflected a settled intention and was voluntarily entered. There was no miscarriage of justice: at [24]-[45].

Per Bellew J:

1. Counsel who appeared for the applicant on sentence discharged his responsibilities in a careful, conscientious and diligent manner: at [223].

2. Advancing the submission of prosecutorial impropriety in the absence of evidence supporting it was, of itself, improper, and the submission should not have been made: at [224].

In respect of the application for leave to appeal against sentence:

Per Bellew J (Brereton JA and Adamson J agreeing):

1. To the extent that the applicant asserted incompetence on the part of counsel who appeared on sentence, it was necessary for her to demonstrate that a miscarriage of justice had arisen. Counsel had a wide discretion as to the manner in which proceedings are conducted: at [248]-[249].

R v Birks (1990) 19 NSWLR 677; TKWJ v The Queen (2002) 212 CLR 124; [2002] HCA 46 applied.

1. This was not a case in which counsel had ignored the issue of the applicant’s mental health. On the contrary, he had considered it carefully: at [256].

2. No part of any submission advanced by counsel on sentence had a tendency to elevate the applicant’s offending, or suggest that she had acted with knowledge rather than recklessness: at [264].

3. Nothing done (or not done) by counsel in respect of the applicant’s possible deportation at the conclusion of her sentence gave rise to a miscarriage of justice and in any event, the submissions advanced by counsel for the applicant in this respect were contrary to authority: at [274].

R v Van Hong Pham [2005] NSWCCA 94 applied.

1. No statement attributed to the applicant had the effect of traversing her plea of guilty: at [282].

2. The findings of the sentencing judge as to the objective seriousness of the offending and the role played by the applicant were entirely consistent with the agreed facts: at [288].

3. Inherent in the submission that the sentencing judge should have attributed “far more weight” to subjective factors was the proposition that some weight had been attached to such factors. Attribution of weight to subjective factors is a matter for the sentencing judge, such that the circumstances in which this Court will intervene are narrowly confined. Each and every one of the matters relied upon by the applicant were specifically considered by the sentencing judge: at [298]-[299].

R v Baker [2000] NSWCCA 85; Ryan v R [2009] NSWCCA 183 applied.

1. There was no unjustified disparity between the sentence imposed upon the applicant and her co-offender: at [306].

Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49 applied.

1. In circumstances where the applicant had offered, prior to being committed for trial, to plead guilty to an offence based upon recklessness, and given that the Crown, having initially rejected that offer, ultimately proceeded on an indictment alleging that offence, the applicant was entitled to a discount of 25% even though that offer was not recorded in the case conference certificate. In that regard the phrase “an offer recorded” in s 25E of the Crimes (Sentencing Procedure) Act 1999 (NSW) should be construed as meaning “an offer which was recorded or which ought to have been recorded”. Such an approach was consistent with principles of statutory construction and any other construction would, in the circumstances, have resulted in manifest injustice to the applicant: at [338]-[342].

Public Transport Commission of NSW v J Murray-More (NSW) Pty Limited (1975) 132 CLR 336; [1975] HCA 28; Federal Commissioner of Taxation v Smorgon (1977) 16 ALR 721; State of Victoria v R [2014] VSCA 311 applied.

Per Brereton JA:

1. In the current state of the law, the applicant’s deportation was not a permissible consideration on sentence, and this case was not an appropriate vehicle to reconsider that principle: at [48]-[51].

R v Pham [2005] NSWCCA 94, applied; Afful v R [2021] NSWCCA 111; AC v R [2016] NSWCCA 10, considered.

1. Insofar as Crimes (Sentencing Procedure) Act 1999 (NSW), s 25E(2)(a), refers to “an offer recorded in a negotiations document to plead guilty to an offence”, and s 25B defines “negotiations document” as “a case conference certificate (including any later plea offer)”, s 25E(2)(a) should be construed as capturing an offer which was recorded, or ought to have been recorded, in a negotiations document: at [63].

2. The applicant was entitled to a discount of 25%, as her offer to plead guilty to the offence to which she ultimately pleaded guilty ought to have been included in the case conference certificate.

3. In the circumstances, the Court was entitled to adjust the sentence by correcting the non-discretionary error of the sentencing judge, without re-exercising the sentencing discretion afresh, but it was also open to re-sentence: at [53]-[72].

Refaieh v R (2018) 272 A Crim R 245; [2018] NSWCCA 72; Lehn v R (2016) 93 NSWLR 205; [2016] NSWCCA 255; Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37, considered.

1. The allegation of incompetence of counsel was unfair. Far from incompetence, counsel was highly careful, capable and competent and used considerable care, skill and acumen to obtain the best realistic result for his client. It was regrettable that the allegation was ever made: at [77].

Judgment

1. BRERETON JA: On 31 October 2019, the applicant Lie Ke, her partner Yueqi Ke, their adult son Jianfeng Ke (Jay) and their adult daughter Xiaoyu Ke (Rosemary), were committed for trial in the District Court at Parramatta, charged with knowingly dealing with the proceeds of crime (primarily, baby formula which had been stolen), contrary to Crimes Act 1900 (NSW) (“Crimes Act”), s 193B(2), for which the maximum penalty is fifteen years’ imprisonment. When arraigned on those charges before Herbert DCJ on 19 December 2019, all four accused entered pleas of not guilty. Subsequently, before the matter was set down for trial, at a “super call-over” before Hanley SC DCJ on 6 March 2020, the applicant and her partner indicated that they would plead guilty to the lesser charge of recklessly dealing with the proceeds of crime, contrary to Crimes Act, s 193B(3), for which the maximum penalty is ten years’ imprisonment. Those pleas of guilty were formally entered before his Honour on 27 March 2020, whereupon the proceedings against Jay and Rosemary were discontinued. On 24 June 2020, the applicant was sentenced by Herbert DCJ to a term of imprisonment of two years and three months, with a non-parole period of eighteen months commencing on 24 June 2020 and expiring on 23 December 2021. She now seeks leave, pursuant to Criminal Appeal Act 1912 (NSW), s 5(1)(b), to appeal against her conviction, and also, pursuant to s 5(1)(c), to appeal against the sentence.

THE CONVICTION APPEAL

2. The substance of the charge to which the applicant pleaded guilty was that she purchased baby formula, from “rogue suppliers” who had stolen it, and then on-sold it, in circumstances where she was reckless as to whether it had been stolen. There was a single ground of appeal in the application for leave to appeal against conviction, albeit with nine “particulars”:

“Leave to appeal against the Plea of Guilty and Conviction of the Applicant/Appellant on the basis the Plea of Guilty was entered and continued in circumstances and occurrences that give rise to a MISCARRIAGE OF JUSTICE including a lack of INTEGRITY of the Plea, on the basis of one or more of the following Grounds:

(1)    The wording of the Indictment as to the charge is bad in law in that the element of knowledge as to the baby powder being stolen must be actual and cannot be reckless in the context and wording of the charge to which the plea of guilty was entered.

(2)    The plea of guilty entered was not attributable to a true consciousness of guilt of the Applicant.

(3)    The advice and conduct of the Applicant’s Lawyer(s) was imprudent, inappropriate and/or incorrect, particularly as to the entry of the plea of guilty, and amounting to incompetence of Counsel.

(4)    The Applicant did not fully understand/and or appreciate the nature and complexity of the charge and the essential elements to which the plea of guilty was entered.

(5)    The Agreed Facts are inconsistent with the elements of the offence and were signed by the Applicant without full and proper advice and instructions at the appropriate and relevant time.

(6)    The plea of guilty by the Applicant was induced by intimidation and/or by unfair and improper undue pressure by the Prosecuting Authorities.

(7)    Some of the actions and rulings of the Presiding Judge on 27 March   2020, were questionable and/or erroneous.

(8)    Some of the actions and comments of the Sentencing Judge on 24 June 2020, were questionable and/or erroneous.

(9)    Any other reasons that may arise in the course of these proceedings and are deemed to be relevant to the Conviction Appeal.”

3. The course of the proceedings culminating in the applicant’s plea of guilty and the sentencing proceedings, and the evidence, including the cross-examination which occupied most of the two days over which the appeal was heard in this Court, are set out in the judgment of Adamson J, which I have had the benefit of reading in draft. I agree with the disposition of the conviction appeal which her Honour proposes, and with her Honour’s conclusions on each of the “particulars” of the ground of appeal, but I wish to add my own reasons.

4. Particular (1) is somewhat distinct from others, in that it complains that the indictment to which the applicant pleaded was “bad in law in that the element of knowledge as to the baby powder being stolen must be actual and cannot be reckless”. This complaint is entirely misconceived. Crimes Act, s 193B, provides as follows:

193B Money laundering

(1) A person who deals with proceeds of crime—

(a) knowing that it is proceeds of crime, and

(b) intending to conceal that it is proceeds of crime,

is guilty of an offence.

Maximum penalty—imprisonment for 20 years.

(2) A person who deals with proceeds of crime knowing that it is proceeds of crime is guilty of an offence.

Maximum penalty—imprisonment for 15 years.

(3) A person who deals with proceeds of crime being reckless as to whether it is proceeds of crime is guilty of an offence.

Maximum penalty—imprisonment for 10 years.

(4) It is a defence to a prosecution for an offence under this section if the defendant satisfies the court that the defendant dealt with the proceeds of crime to assist the enforcement of a law of the Commonwealth, a State or a Territory.

5. It is not an element of an offence of recklessly dealing with proceeds of crime under s 193B(3) that the accused knows that the subject matter are proceeds of crime; that is the very distinction between s 193B(2) (knowingly dealing with proceeds of crime) and the lesser offence in s 193B(3). While it is an element of both offences that the subject matter is in fact proceeds of crime, the offence under s 193B(3) requires only that the accused be aware of the possibility that that is so. [1] In this case, the baby formula was proceeds of crime, because it was stolen (by “rogue suppliers”, from supermarkets). The fact that the basis for the allegation that the baby formula was proceeds of crime was that it had been stolen does not mean that the prosecution must prove that the accused knew that it was stolen. As explained in the judgment of Adamson J, while the Crown would have had to prove that the baby formula was stolen, it would not have had to prove that the applicant knew it had been stolen, but only that, being aware of the possibility that it was stolen, she proceeded to deal with it. It may be that malady which the offences in s 193B were intended to remedy was “money-laundering”, as the heading to the section suggests; but that does not mean that it cannot be used to capture other conduct that falls within its terms.

   1. As to the sufficiency of “possibility”, see [6]-[14] below.

6. It is convenient at this point to deal with the submission made on behalf of the applicant in connection with particular (4), that insofar as the charge was explained to her in terms of it involving “a possibility” that the baby formula was stolen, that explanation was inaccurate, and that a “possibility” was insufficient. According to Mr Shukoor of counsel, who appeared for the applicant on 6 March 2020 and at the sentencing hearing on 24 June 2020, he explained “recklessly” in terms of “being aware of the possibility that the formula was stolen, and proceeding nonetheless”. Mr Bonnici, who appeared for the applicant before us, criticised this, but the criticism is misconceived: Mr Shukoor’s description accords with the law. “Recklessness” as a mental element of a criminal offence is most often encountered in the context of the result of conduct (such as the infliction of harm of various degrees), but it also occurs, as in s 193B(3), in the context of the circumstances in which conduct takes place. Much of the law has been stated in the context of offences involving recklessness as to the result (such as wounding or inflicting bodily harm), in which context there have been statutory amendments, but those amendments do not affect the general notion of what is “reckless” for the purposes of the criminal law.

7. In R v Coleman, Hunt J (as he then was), in the context of the reference to “reckless” in the then definition of “malicious” in Crimes Act, s 5, said (emphasis added):[2]

“... in statutory offences other than murder, the degree of recklessness required in order to establish that an act was done maliciously was a realisation on the part of the accused that the particular kind of harm in fact done (that is, some physical harm – but not necessarily the degree of harm in fact so done) might be inflicted (that is, may possibly be inflicted) yet he went ahead and acted.”

2. (1990) 19 NSWLR 467 at 475 (Hunt J; Finlay J and Allen J agreeing); 47 A Crim R 306.

8. This is consistent with a long line of authority, in Australia and in England. In R v Stones, this Court said (emphasis added):[3]

“Generally speaking, malice aforethought means only intention, but the combined effect of s. 5 and of s. 18 of the Crimes Act1900, in New South Wales, is to set up exceptional cases of constructive murder where it includes states of mind other than an intention to kill. ... The important thing is not the desire of consequence, i.e. motive or intent, but merely foresight of consequence which is the common factor to intention and recklessness. … If [a person] applied his mind to the consequences, and without concluding that they would probably happen (which is criminal intent) his state of mind was that he did not care whether they happened or not, that is recklessness. The task of a jury is to infer to what extent the accused appreciated the consequences of his act.”

3. (1955) 56 SR (NSW) 25 at 33-34 (Street CJ, Roper CJ in Eq and Herron J).

9. In R v Cunningham, the English Court of Criminal Appeal approved the following as an accurate statement of the law (emphasis added):[4]

“In any statutory definition of a crime, malice ... [requires] either:

(1) An actual intention to do the particular kind of harm that in fact was done; or

(2) recklessness as to whether such harm should occur or not (ie, the accused has foreseen that the particular kind of harm might be done and yet has gone on to take the risk of it).”

4. [1957] 2 QB 396 at 399 (Byrne J for Byrne, Slade and Barry JJ).

10. In a context somewhat closer to the present, where the element of “recklessness” was not concerned with the result but with the circumstances, the High Court, in Banditt v The Queen,[5] was concerned with the meaning of “reckless” in Crimes Act, s 61R, which provided that a person who had sexual intercourse with another without the consent of the other person and who was reckless as to whether the other person consented was to be taken to have known that the other person did not consent. Gummow, Hayne and Heydon JJ said that there was a need to accommodate the term “reckless” as it appeared in this provision with the requisite mental element, that is, knowledge of absence of consent, [6] and considered that the following comments of Professor Sir John Smith were apposite (emphasis added): [7]

“If D is aware that there is any possibility that P is not consenting and proceeds to have intercourse, he does so recklessly.”

5. (2005) 224 CLR 262; [2005] HCA 80 (“Banditt”).

6. Banditt at 275 [33] (Gummow, Hayne and Heydon JJ).

7. Banditt at 275 [35] (Gummow, Hayne and Heydon JJ), citing JC Smith, Smith & Hogan: Criminal Law (10th ed, 2002, LexisNexis Butterworths) at 471.

11. Their Honours rejected a submission that proceeding with an awareness of a risk of non-consent could not suffice without the “discrete mental state” of, “even if I know, I would continue. It does not matter to me”. [8] In other words, proceeding with awareness of the possibility that the other person had not consented sufficed.

    8. Banditt at 276 [39] (Gummow, Hayne and Heydon JJ).

12. In Blackwell v R,[9] this Court refused to follow the decision of the Victorian Court of Appeal in R v Campbell,[10] which had held that the test required the accused to think that injury would probably, as distinct from possibly, result, and that conduct is relevantly reckless if there was foresight on the part of the accused of the probable consequences of his actions and indifference as to whether or not those consequences would occur. Declining to follow that approach, Beazley JA, with whom James J and Hall J agreed, said (emphasis added): [11]

“In my opinion, this Court should not follow the Victorian decision of Campbell. That decision is inconsistent with authority in the High Court, New South Wales and in England. The Attorney General expressly referred to the test for recklessness stated by Hunt J in Coleman when commenting upon the proposed legislative changes to s 35. Accordingly, in this case, the jury should have been directed in terms that if the appellant was to be found guilty on the alternative count, they had to be satisfied that he realised that by thrusting the glass into Mr Ward's face, it was possible that grievous bodily harm, that is really serious injury, would be inflicted and yet went ahead and acted.”

9. (2011) 81 NSWLR 119; [2011] NSWCCA 93 (“Blackwell”).

10. [1997] 2 VR 585 at 592 (Hayne JA and Crockett AJA), cf 586 (Phillips CJ), where the standard of “probability” is rejected.

11. Blackwell at 134 [78] (Beazley JA; James J and Hall J agreeing).

13. Although subsequent amendments have had the effect that, in the context of the offence there under consideration (being maliciously inflict grievous bodily harm with intent, under Crimes Act, s 33(1)(b)), what must be foreseen is the possibility of actual bodily harm as distinct from really serious harm, they do not affect that what must be foreseen is no more than a possibility, as distinct from the probability, of such harm.

14. The effect of this line of authority is that where the mental element of an offence is recklessness, the Crown must establish awareness of the possibility of the relevant result or circumstance, and that the accused proceeds with that awareness to perform the relevant act. By circumstance, I refer to, for example, the absence of consent in a sexual assault case, and, in the present case, that the subject matter was proceeds of crime. Thus, in the present case, if the applicant was aware that there was any possibility that the baby formula was stolen, and proceeded to deal with it, she did so recklessly. Mr Shukoor’s explanation, that recklessness involved “being aware of the possibility that the formula was stolen, and proceeding nonetheless”, accurately captured this.

15. I turn then to why I am unable to accept the applicant’s fundamental contention that there was a miscarriage of justice by reason of circumstances affecting the “integrity of the plea”. The principles which guide courts of criminal appeal when they are invited to quash convictions which have been recorded following pleas of guilty were authoritatively stated by the High Court in Meissner v The Queen, as follows (citations omitted):[12]

“A person charged with an offence is at liberty to plead guilty or not guilty to the charge, whether or not that person is in truth guilty or not guilty. An inducement to plead guilty does not necessarily have a tendency to pervert the course of justice, for the inducement may be offered simply to assist the person charged to make a free choice in that person’s own interests. A court will act on a plea of guilty when it is entered in open court by a person who is of full age and apparently of sound mind and understanding, provided the plea is entered in exercise of a free choice in the interests of the person entering the plea. There is no miscarriage of justice if a court does act on such a plea, even if the person entering it is not in truth guilty of the offence. The principle is stated by Lawton LJ in R v Inns:

‘The whole basis of a plea on arraignment is that in open court an accused freely says what he is going to do; and the law attaches so much importance to a plea of guilty in open court that no further proof is required of the accused’s guilt. When the accused is making a plea of guilty under pressure and threats, he does not make a free plea and the trial starts without there being a proper plea at all. All that follows thereafter is, in our judgment, a nullity.’

It may not be strictly accurate to describe what follows as a nullity, but it is certainly liable to be set aside and a new trial ordered. If a plea of guilty is entered by the person charged in purported exercise of a free choice to serve that person’s own interests, but the plea is in fact procured by pressure and threats, there is a miscarriage of justice. In such a case, the court is falsely led to dispense with a trial on the faith of a defective plea. The course of justice is thus perverted.”

12. (1995) 184 CLR 132 at 141-2 (Brennan, Toohey and McHugh JJ); [1995] HCA 41 (“Meissner”).

16. It is for an appellant to establish, on the balance of probabilities, that a miscarriage of justice has occurred,[13] and such a finding is not lightly to be made. As Kirby P observed in Liberti v The Queen:[14]

“For good reasons, courts approach attempts at trial or on appeal in effect to change a plea of guilty or to assert a want of understanding of what was involved in such a plea with caution bordering on circumspection. This attitude rests on the high public interest in the finality of legal proceedings and upon the principle that a plea of guilty by a person in possession of all relevant facts is normally taken to be an admission by that person of the necessary legal ingredients of the offence”

13. R v Kennedy [2014] NSWSC 1921 at [63] (Wilson J); Sauer v R [2006] NSWCCA 81 at [10] (Grove J; James J and Simpson J agreeing); R v Toro-Martinez (2000) 114 A Crim R 533 at 536 [16]-[23] (Spigelman CJ; Newman J and Adams J agreeing); [2000] NSWCCA 216; R v Marchando (2000) 110 A Crim R 337 at 338 [4] (Simpson J; Wood CJ at CL and Sully J agreeing); [2000] NSWCCA 8; R v Collis (1989) 43 A Crim R 371 at 374 (Young CJ, Murphy and Gobbo JJ).

14. (1991) 55 A Crim R 120 at 122 (Kirby P; Grove J and Newman J agreeing); see also R v Carkeet [2009] 1 Qd R 190 at 194 [24] (Fraser JA; Keane JA and Holmes JA agreeing); [2008] QCA 143; R v Parkes [2004] NSWCCA 377 at [48] (Hodgson JA; Hulme J and Smart AJ agreeing); Borsa v The Queen [2003] WASCA 254 at [20] (Steytler J; Murray ACJ and Hasluck J agreeing).

17. In this respect, “[t]he presence or absence of a genuine consciousness of guilt on the part of the accused may well be relevant, but will not be decisive” in determining whether a miscarriage of justice has occurred. [15] The plea of guilty itself is a cogent admission of the ingredients of the offence. [16]

    15. R v Pugh (2005) 158 A Crim R 302 at 311 [40] (Doyle CJ), 348 [201] (Gray J); [2005] SASC 427; cf earlier cases, pre-Meissner, which held that a miscarriage of justice will not arise unless some circumstance exists which suggests that the guilty plea “was not really attributable to a genuine consciousness of guilt”: Hura v The Queen (2001) 121 A Crim R 472 at 478 (Spigelman CJ; Simpson J and Carruthers AJ agreeing); [2001] NSWCCA 61; R v Sagiv (1986) 22 A Crim R 73 at 80-1 (Lee J; McInerney J and Campbell J agreeing); R v Murphy [1965] VR 187 at 191 (Herring CJ and Adam J).

    16. R v Thalari (2009) 75 NSWLR 307 at 312 [34] (Johnson J; Young JA and Latham J agreeing); [2009] NSWCCA 170 (“Thalari”); Charlesworth v R (2009) 193 A Crim R 300 at 308 [25] (Kirby J; Allsop P and Hall J agreeing); [2009] NSWCCA 27; R v SL [2004] NSWCCA 397 at [51] (Giles JA; Buddin J and Smart AJ agreeing).

18. The appellant’s case was founded on the proposition, sourced in Meissner, that “[i]f a plea of guilty is entered by the person charged in purported exercise of a free choice to serve that person’s own interests, but the plea is in fact procured by pressure and threats, there is a miscarriage of justice”. [17] However, as the context in which that passage appears, and other cases, illustrate, it is not every pressure that will have that result. Thus, in Maxwell v The Queen, it was emphasised that, normally, a plea of guilty will constitute an admission of all the essential elements of the relevant offence, subject to the qualification that:[18]

“The plea of guilty must however be unequivocal and not made in circumstances suggesting that it is not a true admission of guilt. Those circumstances include ignorance, fear, duress, mistake or even the desire to gain a technical advantage.”

17. Meissner at 141-2 (Brennan, Toohey and McHugh JJ).

18. (1996) 184 CLR 501 at 510-11 (Dawson and McHugh JJ); [1996] HCA 46 (“Maxwell”).

19. The reference to duress, as distinct from mere “pressure”, is significant, and more aptly captures the type of “vitiating factor” that must be demonstrated. In Kumar v The Queen,[19] the Victorian Court of Appeal summarised the position following Meissner and Maxwell, as follows:

“(a) A true admission of guilt of an offence means an admission freely made of an offence of which the accused is truly guilty.

(b) An admission of guilt is not freely made and, therefore, is not a true admission of guilt if the accused’s exercise of free will to make or withhold the admission is overborne or otherwise substantially compromised by factors such as fraud, duress, intimidation, improper inducement or misrepresentation.

(c) Likewise, an admission of guilt, even if freely made, may not be a true admission of guilt if it results from a mistake as to the nature of the admission, including without limitation, a mistake as to the nature of the offence admitted.

(d) If, however, an admission of guilt is freely made, the fact that it might have been motivated by hope or expectation of forensic, sentencing or other technical advantage will not deprive it of the quality of a true admission of guilt unless it be shown that the accused did not intend thereby to accept guilt for an offence of which he believed himself to be guilty.”

19. [2014] VSCA 102 at [16] (Nettle and Redlich JJA and Almond AJA) (“Kumar”).

20. Proposition (d) needs to be understood as referring to a misconceived hope or expectation of the kind mentioned. It should not be understood as detracting from the proposition that “a person may plead guilty upon grounds which extend beyond that person's belief in his guilt, and the entry of a plea of guilty upon such grounds nevertheless constitutes an admission of all the elements of the offence, and a conviction entered upon the basis of such a plea will not be set aside on appeal unless it can be shown that a miscarriage of justice has occurred”, which “will normally only arise where the accused person did not understand the nature of the charge, or did not intend by his plea to admit his guilt of it”. [20]

    20. Thalari at 312-313 [35] (Johnson J; Young JA and Latham J agreeing), citing Meissner at 157 (Dawson J), and Wong v Director of Public Prosecutions (NSW) (2005) 155 A Crim R 37 at 45-46 (Howie J); [2005] NSWSC 129.

21. To the catalogue of vitiating factors referred to in Maxwell and in Kumar might be added “inappropriate advice” (although mere erroneous advice by defence counsel as to prospective penalty is unlikely to be sufficient to impugn the integrity of a plea of guilty). [21]

    21. Angre v Chief of Navy (No 3) [2017] ADFDAT 2 at [55] (Tracey, Logan and Brereton JJ); Saik v The Queen [2004] EWCA Crim 2936 at [58] (Baker LJ for Baker LJ, Steel and Roberts JJ); Wilkes v R (2001) 122 A Crim R 310 at 319 [47] (Wood CJ at CL; Giles JA and Simpson J agreeing); McLean v R (2001) 121 A Crim R 484 at 495 [58] (Wood CJ at CL; Beazley JA and Greg James J agreeing).

22. With the recent reforms of the committal procedure, plea-bargaining is institutionalised. Case conferences are mandatory, except where an accused person is not legally represented. [22] “The principal objective of the case conference is to determine whether there are any offences to which the accused person is willing to plead guilty”. [23] Before participating in a case conference, an accused person’s lawyer is obliged to explain “the effect of the scheme for the sentencing discount applied under Part 3 of the Crimes (Sentencing Procedure) Act 1999 for a plea of guilty”. [24]

    22. Criminal Procedure Act (NSW) 1986, ss 55(e), 70 (“CPA”).

    23. CPA, s 70(2).

    24. CPA, s 72(2)(a).

23. The environment of criminal proceedings is stressful for many, if not all, accused. [25] With the institutionalisation of plea-bargaining, case conferences and other settings in which such bargaining might take place will inevitably involve the application of “pressure”, of a kind, on an accused person, to plead guilty. The combination of the opportunity to plead guilty and obtain a discount, coupled with the decreasing discount available if the opportunity is allowed to pass, provides an incentive – and thereby creates “pressure” – to plead guilty. The context of plea-bargaining, at a case conference or otherwise, where there is a substantial incentive for a plea of guilty which will be lost if not availed of in a timely manner, inevitably places a form of pressure on an accused person, through the combination of the incentive and its reduction if a plea is not made early. However, that is not improper pressure; indeed, it is the purpose of the legislation to encourage early pleas of guilty, and to create incentives – and commensurate pressures – to do so.

    25. Thompson v Chief of Navy [2015] ADFDAT 1 at [34] (Tracey, Byrne and Logan JJ), citing R v Chiron [1980] 1 NSWLR 218 at 241 (Lee J; Street CJ and Nagle CJ at CL agreeing).

24. At the case conference on 28 August 2019, at which the applicant, her partner, Jay, and Rosemary were represented by the same solicitor, the ODPP offered to accept a plea from the applicant to the charge under s 193B(2) (knowingly deal with proceeds of crime), and a plea from each of the applicant’s partner, Jay, and Rosemary to charges under s 193B(3) (recklessly deal with proceeds of crime). Their solicitor informed the ODPP that more time was needed to reply to the offer. The ODPP confirmed the offer by email on 5 September 2019, attaching draft facts for the accused persons other than the applicant. The offer to each accused was not expressed to be conditional on any one or more of the others accepting the offer to them. Mr Awada, solicitor, replied on 6 September 2019, stating “I do envision that there are very real prospects of resolving these matters”, and foreshadowing an application for a further adjournment “for consideration of the attached facts and my clients’ respective positions.” The committal proceedings were adjourned accordingly.

25. Next, on 8 October 2019, Mr Awada sent an email to the ODPP stating that the applicant, and her partner, were each willing to plead guilty to offences contrary to s 193B(3) (recklessly deal with proceeds of crime), but he was instructed that the matters against Jay and Rosemary were to be committed for trial. This is most significant: the applicant was willing to plead guilty to an offence under s 193B(3) (recklessly deal with proceeds of crime), in the context that the cases against her children would proceed to trial.

26. The ODPP responded on the same day, at 8:09pm, that the Officer-in-Charge (OIC) had indicated, provisionally, that she was likely to accept a plea to the extant s 193B(2) (knowingly deal with proceeds of crime) charge in respect of the applicant, and a plea to a s 193B(3) (recklessly deal with proceeds of crime) charge in respect of the applicant’s partner, and that if such pleas were entered, the charges against the two children could be withdrawn. Mr Awada replied a few minutes later, at 8:15pm, stating:

“I will obtain instructions regarding [the applicant] pleading to the current charge and [her partner] pleading to the reckless offence.

In saying that, and I know this is subject to further consideration, I would be submitting that charges against the children be withdrawn.”

27. On 9 October 2019, Mr Awada sent a further email to ODPP, stating that he would seek a further adjournment of the matter on 10 October 2019, to:

“1. Confirm [the applicant’s] plea of guilty to the current charge;

2. Confirm [her partner’s] plea of guilty to the reckless offence; and

3. Potential [sic] allow you to confirm whether the charges against the children can be withdrawn.”

28. On 17 October 2019, the ODPP submitted proposed statements of agreed facts in relation the applicant and her partner to Mr Awada, under cover of an email which stated that in relation to the applicant, the Crown would accept a plea of guilty to the extant charge under s 193B(2); in relation to the applicant’s partner, that the Crown would accept a plea of guilty to a charge under s 193B(3) of recklessly dealing with proceeds of crime; and that on the basis that such pleas were entered and the attached statements of facts were agreed, the Crown would withdraw the charges against Jay and Rosemary. This offer formally confirmed the indication that had been given by the OIC on 8 October 2019.

29. On 30 October 2019, Mr Awada informed ODPP that his instructions were that each of the accused persons would maintain a plea of not guilty, and that the matters would be committed for trial. The case conference certificate was then drafted by the ODPP, and signed on its behalf, on 30 October 2019. In respect of the applicant, it certified that the prosecution during the case conference had informed the defence that the only charge in respect of which the Crown would accept a plea of guilty would be an offence under s 193B(2) (knowingly dealing with proceeds of crime). It did not refer to the applicant’s 8 October 2019 offer to plead guilty to an offence under s 193B(3).

30. On 31 October 2019, the applicant, her partner, Jay, and Rosemary were committed to the District Court at Parramatta for trial on charges under s 193B(2) (knowingly dealing with proceeds of crime), and the matter was listed for arraignment on 28 November 2019. The arraignment was adjourned, ultimately to 19 December 2019, when all four accused pleaded not guilty to a charge under s 193B(2) (knowingly dealing with proceeds of crime) before Herbert DCJ. Because of their anticipated length, the proceedings were not immediately set down for trial, and in due course were listed in the “super-callover” to be held on 6 March 2020.

31. Immediately before the super-callover, on 5 March 2020 at 11:04am, following a conference with the applicant, her counsel Mr Shukoor – who was acting for her alone, her partner and the children now being separately represented – raised with the ODPP the possibility that she might plead guilty to a lesser offence, being an offence contrary to s 193C(1) (dealing with property suspected of being proceeds of crime), for which the maximum penalty is imprisonment for five years. Again, this was not conditioned on or attached to any outcome so far as the charges against the children were concerned.

32. At the super-callover, the prosecution offered to accept pleas of guilty from each of the applicant and her partner to offences under s 193B(3) (recklessly deal with proceeds of crime), and stipulated that if that were accepted, the charges against the children would be discontinued. The applicant instructed Mr Shukoor to accept the offer. I accept Mr Shukoor’s evidence that the applicant was pleased to receive that offer, which is entirely consistent with her having made that offer at the committal stage, and having discussed it in conference the previous day. As he recorded in his email of that date, reporting on the outcome, she told him that she had always been open to pleading guilty to the charge based on recklessness. That accords with the plea offer of 8 October 2019. I am satisfied that the notion of recklessness (as described above), and the difference between it and “knowingly”, was properly and sufficiently explained to the applicant by Mr Shukoor, as he testified. Moreover, the applicant in her own evidence deposes to having it explained to her that “she ought to have known” that the baby formula was stolen.

33. There was a strong prosecution case on recklessness, and at least a substantial risk that if the matter went to trial, the applicant would be convicted of the more serious offence under s 193B(2) (knowingly deal with proceeds of crime). In this respect, it was particularly significant that there was an intercepted telephone conversation between the applicant and one of the “rogue suppliers”, in which the supplier referred to the presence of police at a location where it was proposed to deliver baby formula to the applicant; and when this conversation was put to the applicant in her ERISP, she did not dispute it, and offered no explanation for it. Moreover, before us, she gave this evidence: [26]

“Q. I think you instructed your lawyer Mr Awada that you were willing to plead guilty to a charge of recklessly deal with proceeds of crime in October 2019 that’s what you told him to communicate to the DPP, you agree or disagree?

A. INTERPRETER: I was reckless but I didn’t know that it was proceed of crime.”

26. Tcpt, 7 July 2021, p 34(33)-(38).

34. In the light of those matters, there were significant benefits for herself, her children, and her family in her pleading guilty: first, there was a high risk of conviction in any event at least of an offence under s 193B(3); secondly, a plea of guilty would avoid the costs to her family of the great expense of a defended trial, which would still likely result in her conviction at least of the lesser offence under s 193B(3); thirdly, she would be entitled to a discount on the sentence which would otherwise be imposed on the lesser charge, and would have at least a chance of avoiding a fulltime custodial sentence; fourthly, she would avoid the risk of conviction on the more serious charge under s 193B(2); and fifthly, her children would be exonerated. Before us, she agreed to much of this: [27]

    27. Tcpt, 7 July 2021, pp 33(19)-34(7).

“Q. … you said a little while ago that you had been - or when you decided to plead guilty, you had been under pressure for some time, is that right?

A. INTERPRETER: Yes.

Q. Had that pressure existed since the time that you had been arrested?

A. INTERPRETER: Yes.

Q. At the time that you decided to plead guilty did you think that if you went to trial before a jury there was a risk that you would be found guilty?

A. INTERPRETER: Yes.

Q. And did you think that if you went to trial there was a risk that you would be found guilty of the more serious charge of knowing the proceeds were stolen rather than recklessness?

A. INTERPRETER: I’m sorry I got confused.

Q. Did you think that if you went to trial there was at least the risk that a jury would convict you of the more serious charge of knowing actually knowing the proceeds were stolen rather than being reckless?

A. INTERPRETER: I do not know.

Q. Did you think that if you went to trial and were convicted you would probably get a sterner or longer sentence than if you pleaded guilty?

A. INTERPRETER: I don’t know I never thought about it.

Q. Did you think that if you went to trial it would be much more expensive for you and your family than if you pleaded guilty?

A. INTERPRETER: Yes for sure we cannot afford it.

Q. Did you think that it would be a benefit for your son and daughter if you pleaded guilty because the charges against would be dropped?

A. INTERPRETER: Yes.

Q. Did you discuss with your son and your daughter and your partner whether you would plead guilty?

A. INTERPRETER: Well on the last stage I did make my own decisions because even though they told me and I think I just want to end it quickly because we don’t have money.”

35. Having obtained the applicant’s instructions, Mr Shukoor informed Hanley SC DCJ that there had been “in principle agreement in relation to [his] client and that will, without going into detail, have a cascading effect on everyone else”. The matter was stood over to 27 March 2020, to permit agreed facts to be negotiated. However, what is presently important is that the applicant had by now decided to plead guilty (to the lesser offence), and that this was entirely consistent with the offer she had made to do so on 8 October 2019. Moreover, and contrary to the submission now made on her behalf, it was not inconsistent with the plea of not guilty to an offence under s 193B(2) which had been entered upon arraignment in December 2019: it was entirely consistent with her denial that she knew that the baby formula she acquired from the “rogue suppliers” was stolen, while involving acceptance that she was aware of the possibility that it was stolen.

36. There was no suggestion of any reservation, let alone a change of mind, in that respect, between then and the adjourned hearing on 27 March 2020, when the plea was formally taken. The outstanding issues were not about the plea, but about the agreed facts, and in particular the quantities of baby formula and money involved.

37. On 26 March 2020, Mr Shukoor proposed that on 27 March 2020, there be a further adjournment, to permit negotiations about the agreed facts to be finalised. There was no reason for contemplating an adjournment, to finalise the agreed facts, unless there was to be a plea of guilty. The fact that an adjournment, rather than a trial date, was sought, confirms that it remained the applicant’s intention to plead guilty. When the judge, entirely properly, indicated that a further adjournment would not be granted and the matter would be set down, if not for sentence on a plea of guilty, then for trial, that imposed some pressure – but not improper pressure – to reach agreement on the facts. At 10.39am, in response to an email from Mr Park, the solicitor who was appearing at court that morning, reporting, “Judge just said that if it’s not agreed today, we will be getting trial dates”, Mr Shukoor sent an email to his instructing solicitor Ms Chand:

“Sherleen, please advise them that the facts have been heavily negotiated in their favour and so have the charges. I believe they already understand this.

Please inform her of the choice presented to her by the Judge. She should feel no pressure and can go to trial is she prefers.

As far as I am able to tell, the dpp solicitor has made all the concessions he is able.”

38. Ms Chand conveyed to the applicant “that she should feel no pressure to accept the facts if they are not agreed by her and again it was open for her to take the matter to trial”. [28]

    28. Tcpt, 8 July 2021, p 191(13)-(15).

39. No doubt the rush to get to court – in circumstances that, in the context of the recently imposed COVID-19 lockdown, the applicant (and the other accused) had not attended court at the outset – would have given an impression of a hurry. No doubt the combination of the judge’s insistence that the matter would be set down for trial if there were not a plea of guilty that day, and the prosecutor’s insistence that the facts be agreed before he would accept a plea, created an environment of pressure to reach agreement on the facts. No doubt the applicant was under pressure, as she had been from the time of her arrest, and was emotional. However, none of that amounts to illegitimate or improper pressure; it is no more than the inevitable concomitant of being a defendant in criminal proceedings. I can readily see that in some circumstances, the use of a threat of proceedings against a defendant’s child as leverage to secure a plea might be illegitimate. However, in the present context it was not: the applicant had originally, on 8 October 2019, offered to plead guilty to an offence under s 193B(3) quite independently of the outcome of the proceedings against her children, and on the basis that they would be committed for trial; I accept Mr Shukoor’s evidence that he did not recall the applicant ever expressing concerns to him about the matters proceeding to trial against the children; and there is no evidence of any discussion between her and any member of her family in which reference was made to the benefit that would accrue to the children in that way if she were to plead guilty.

40. On 27 March 2020, the applicant gave written instructions for the plea of guilty, after they were translated to her in Mandarin. She, and her partner, were arraigned on a fresh ex officio indictment:

“For that they between 17 November 2017 and 22 August 2018 in Carlingford and elsewhere in the State of New South Wales did engage in transactions with proceeds of crime, being stolen baby formula, in circumstances where Yueqi Ke and Lie Ke were reckless as to whether the baby formula was the proceeds of crime.”

41. After the indictment was translated to the applicant in Mandarin by an interpreter, she, and her partner, pleaded guilty, and the proceedings were set down for sentence on 24 June 2020.

42. Between the plea of guilty and the sentence hearing on 24 June, there was no indication of any reservation about the plea of guilty. On 3 June 2020, the applicant was seen by Mr Awit, a registered psychologist, for the purposes of providing a report for the proceedings on sentence. The history he elicited included the following (emphasis added):

“Ms. Ke advised that she understood that it was reckless not to question where the products were coming from, and that from time to time she did wonder; but given her physical condition as well as her ongoing stressors, she was just happy that she did not have to go herself to get the products. Ms. Ke further advised that she did not give much thought to where the products were picked up from. Ms. Ke advised that she purchased the products from wherever the sellers felt most comfortable.”

43. Before us, the applicant was cross-examined about the first sentence of the passage extracted above, and maintained that she did not appreciate at the time of the offending conduct that she was reckless as to whether the baby formula was stolen, that being a realisation she had been brought to only as a result of the proceedings. Although I found the applicant generally a credible witness who made concessions adverse to her interest, and whose lack of recollection of some of what was explained to her on 6 March 2020 and on other occasions is likely to be attributable to the inevitable pressures and emotions of the situation, her reported statement to Mr Awit “that from time to time she did wonder” where the cheap baby formula was coming from is confirmatory that she was aware of the possibility that it was stolen, consistent with her plea of guilty to an offence under s 193B(3). In any event, it demonstrates that she understood what she had pleaded guilty to.

44. Thus, the applicant’s intention to plead guilty to an offence under s 193B(3) (recklessly dealing with proceeds of crime) had been settled by, at the latest, the super-callover on 6 March 2019, more than a fortnight before it was formally entered on 27 March 2020, and reflecting an intention which the applicant had harboured since at least 8 October 2019 when she first offered to do so. It was thereafter adhered to over a period of two months. After 6 March 2020, the outstanding issues concerned the contents of the agreed facts, assuming a plea of guilty – not whether there was to be a plea of guilty. The plea was consistent with her consistent denial that she knew that the baby formula was proceeds of crime, but her acceptance that she had been reckless as to that circumstance. There was no suggestion of any reservation about the plea (as distinct from dispute about the facts on which she would be sentenced) between 6 March 2020 and 27 March 2020. Nor was there any suggestion of any such reservation between 27 March 2020 and the proceedings on sentence on 24 June 2020.

45. In my view, there is no doubt that this was a voluntary plea to an offence of which the applicant realised, on proper advice, that she was likely to be convicted. There was no such vitiating factor as might have resulted in a miscarriage of justice. The applicant had a well settled intention, of her own volition, and for good reason, to plead guilty to an offence under s 193B(3).

46. For those reasons, in addition to the reasons given by Adamson J, leave to appeal against the conviction should be refused.

THE SENTENCE APPEAL

47. The facts of the offending, the applicant’s subjective circumstances, the course of the sentencing proceedings, and the grounds of appeal are set out in the judgment of Bellew J, which I have had the benefit of reading in draft. I agree with his Honour’s conclusions in respect of each of the grounds of appeal, and with his Honour’s reasons for them. I wish however to provide my own additional reasons in respect of three issues.

48. First, ground 12 complained that “the Applicant nor the Court was made aware by the Legal Representatives of the Applicant of the extreme hardship and trauma that may arise and in fact has arisen because of the full-time custodial sentence imposed upon the Applicant's visa status as a permanent resident”. As Bellew J explains, the applicant herself drew this matter to the attention of the Court in her written letter of apology. However, as Mr Shukoor rightly explained, the jeopardy to her visa was not, in the circumstances, a permissible consideration. In New South Wales, the possibility or actuality of deportation is not a relevant factor in sentencing. ^[29] In R v Pham, this Court said:^[30]

“It is established principle that the fact of deportation is irrelevant as a sentencing consideration, it being a matter exclusively for the Executive Government: R v Jap NSWCCA 20 July 1998 and R v Latumetan and Murwanto [2003] NSWCCA 70 . Moreover the High Court has held that a foreign national should receive the benefit of being eligible for release on parole: Shrestha v R (1991) 173 CLR 48 at 71 per Deane, Dawson and Toohey JJ.”

29. Afful v R [2021] NSWCCA 111 at [51]-[52] (N Adams J; Hoeben CJ at CL and Hidden AJ agreeing) (“Afful”).

30. [2005] NSWCCA 94 at [13] (Wood CJ at CL; Hislop J and Johnson J agreeing).

49. In AC v R , this Court said:^[31]

“It appears that the applicant is at risk of deportation once his sentence is served. This was not a relevant consideration on sentence, even in fixing the applicant’s non-parole period. Deportation is a matter for the Executive Government (see R v Van Hong Pham [2005] NSWCCA 94 referring to Shrestha v R [1991] HCA 26; (1991) 173 CLR 48).”

31. [2016] NSWCCA 107 at [79] (Schmidt J; Bathurst CJ and Wilson J agreeing).

50. It might be thought that it is anomalous that the Court does not take into account an adverse extra-curial consequence that will flow for an offender, and the New South Wales approach is not universal; differing practices in other jurisdictions were summarised by Fraser JA in R v Schelvis,^[32] and reviewed by this Court in Kristensen v R,^[33] and most recently in Afful. ^[34]

    32. (2016) 263 A Crim R 1 at 26-27 [72] (Fraser JA; Morrison JA and Peter Lyons J agreeing); [2016] QCA 294.

    33. [2018] NSWCCA 189 (Payne JA; R A Hulme J and Button J agreeing).

    34. Afful at [51]-[67] (N Adams J; Hoeben CJ at CL and Hidden AJ agreeing).

51. These issues of principle were not argued before us. Moreover, although the Court was informed that on 21 July 2020, following the sentence proceedings, the Department of Home Affairs advised the applicant that, in light of the sentence imposed, a decision had been made to cancel her visa – presumably on “character” grounds pursuant to Migration Act 1958 (Cth) (“Migration Act”), s 501(3A), which provides for the mandatory cancellation of a person’s visa if they have a substantial criminal record (defined to include a term of imprisonment of twelve months or more), the Court was not informed whether she had made representations to the Minister requesting a revocation of the cancellation under Migration Act, s 501CA, which provides that the Minister may revoke a visa cancellation based on representations made by the person subject of the cancellation and was introduced into the Migration Act by the same amendment as introduced s 501(3A). ^[35] For those reasons, like Afful, this case is not a suitable vehicle to reconsider the longstanding practice in New South Wales regarding the irrelevance of deportation on sentence. ^[36]

    35. Sections 501(3A) and 501CA were inserted into the Migration Act by the Migration Amendment (Character and General Visa Cancellation) Act 2014 (Cth); per s 2(1) Table Item 2, they commenced on 11 December 2014.

    36. Cf Afful at [66] (N Adams J; Hoeben CJ at CL and Hidden AJ agreeing).

52. Secondly, ground 14 complained that “the Sentencing Judge gave too much weight and disproportionate weight to the Agreed Facts vis-a-vis the real role of the Applicant's conduct in the commission of this charge and related stealing offences”. It is with respect difficult to understood what is the contention that underlies this ground. If, as appears to be the case, it is that rather than relying on facts which had been agreed between the parties for the purpose of sentencing on a plea of guilty, the sentencing judge should have gone behind them and conducted some further inquiry into the facts, it is entirely misconceived. It would have been erroneous for her Honour to sentence the appellant on any other basis than the agreed facts, at least without affording the parties notice that that course was under consideration, and an opportunity to address it.

53. Thirdly, I turn then to the issue on which, like Bellew J, I consider that the appeal must succeed, being the amount of the discount to which the applicant was entitled for her plea of guilty. As has been noted, by email sent to ODPP on 8 October 2019, the applicant offered to plead guilty to an offence under s 193B(3) of recklessly deal with proceeds of crime. Although the Crown rejected that offer, stating it would accept only a plea to an offence under s 193B(2), ultimately it accepted a plea of guilty to an offence under s 193B(3). The question is whether her Honour erred in applying a discount of only 10% for the utilitarian value of the plea of guilty, albeit that before her the parties agreed that 10% was the appropriate discount under the applicable legislation.

54. The applicable legislation was that resulting from the amendments made, with effect from 30 April 2018, to the Criminal Procedure Act and the Crimes (Sentencing Procedure) Act 1999 (NSW) (“Sentencing Procedure Act”), to enact what is commonly referred to as the “Early Appropriate Guilty Plea” scheme, and which apply to proceedings commenced after 30 April 2018. [37] As the proceedings against the applicant were commenced by Court Attendance Notices dated 23 August 2018,[38] those provisions apply.

    37. Justice Legislation Amendment (Committals and Guilty Pleas) Act 2017 (NSW), s 2. Proclaimed to commence on 30 April 2018. Similarly, see Crimes (Sentencing Procedure) Amendment (Sentencing Options) Act 2017 (NSW).

    38. Proceedings commence when a Court Attendance Notice is filed with a registry of the Local Court of NSW: CPA, s 53.

55. The amendments to the Sentencing Procedure Act have the effect that the discounts to be applied on sentence following a guilty plea are prescribed in numerical terms, dependent on the status of the proceedings when the plea is entered (thus, 25% before committal, and 10% following committal but more than 14 days before trial). [39] The discounts are mandatory; there is no residual discretion. [40]

    39. Sentencing Procedure Act, s 25D(2).

    40. Sentencing Procedure Act, s 25D(1). The only exceptions to this are found in s 25F; none of the circumstances in that section arise in the instant case.

56. Provision is made for the circumstance where an offender has made an earlier offer to plead guilty that is later accepted by s 25E(2), as follows:

(2) Discount where offer later accepted. In determining the sentence for an offence, the court is to apply a sentencing discount for the utilitarian value of a guilty plea in accordance with this section if—

(a) the offender made an offer recorded in a negotiations document to plead guilty to an offence, and

(b) that offence (the “different offence”) was not the offence the subject of the proceedings when the offer was made, and

(c) the offer was refused but accepted by the prosecutor after the offender was committed for trial, and

(d) the offender pleaded guilty to the different offence at the first available opportunity able to be obtained by the offender.

57. The Crown points out that para (a) requires that the offer must have been recorded in a “negotiations document”. The term “negotiations document” is defined, in s 25B, as follows:

“negotiations document” means—

(a) if an offender was represented by an Australian legal practitioner in proceedings—

(i) a case conference certificate (including any later plea offer) filed in committal proceedings for the offence concerned under the Criminal Procedure Act 1986, or

(ii) any other document that records an offer made by the offender to plead guilty to an offence specified in the document, served on the prosecutor in proceedings for the offence—

(A) following committal for trial or sentence, or

(B) after an indictment containing a new count offence is filed.

58. Reference has already been made to the requirement for a “case conference” prior to committal to the District Court,[41] the principal objective of which is “to determine whether there are any offences to which a person will plead guilty”. [42] A “case conference certificate” must be filed prior to committal. [43] The case conference certificate must include, inter alia, any offers made by the prosecution or accused to plead guilty to the offence charged or some other offence. [44] CPA, s 75, relevantly provides (emphasis added):

    41. CPA, s 70.

    42. CPA, s 70(2).

    43. CPA, s 74.

    44. CPA, ss 75(1)(b)-(c).

75 Contents of case conference certificate

(1) The case conference certificate is to be in the form prescribed by the regulations and is to certify as to the following matters—

...

(b) any offers by the accused person to plead guilty to an offence specified in the charge certificate or to different offences,

(c) any offers by the prosecution to the accused person to accept guilty pleas to an offence specified in the charge certificate or to different offences,

(d) whether the accused person or prosecution has accepted or rejected any such offers,

(e) the offence or offences for which the prosecution will seek committal for trial or sentence,

.....

(4) A case conference certificate must certify as to all the matters of the kind referred to in subsection (1) that occur before the certificate is filed, including any written offers of a kind referred to in subsection (1) that were made by the accused person or the prosecutor, and served on the prosecutor or accused person, before or after any case conference was held.

59. The intent that all pre-committal offers must be included in the certificate is confirmed by s 77, which provides that a plea offer made after the certificate is filed but before committal is deemed to be included in the certificate:

77 Further offers

(1) This section applies to an offer (a plea offer) if—

(a) the offer is made by the accused person or the prosecutor after the filing of the case conference certificate in committal proceedings, and before the accused person is committed for trial or sentence, and

(b) the offer is an offer of a kind that would have been required to be included in a case conference certificate if it had been made before the filing of the certificate, and

(c) the offer is made in writing and served on the other party, and

(d) the offer is filed in the registry of the Local Court.

(2) A plea offer is, for all purposes, to be treated as if it formed part of the case conference certificate.

(3) A plea offer is to be annexed to the case conference certificate in the committal proceedings.

60. The Crown submitted that to fall within the definition of “negotiations document”, any offer made prior to committal was required to be recorded in the case conference certificate and not otherwise. “Put simply, to engage s 25E the offer made by email on 8 October 2019 needed to be recorded in the case conference certificate. It was not”.

61. In the present case, the case conference was conducted on 28 August 2019. The certificate was prepared and signed by the prosecutor on 30 October 2019, and filed on 31 October 2019, when the applicant was committed for trial to the District Court. In respect of offers, it certified only that the prosecution during the case conference had informed the defence that the only charge that the Crown would accept a plea of guilty to would be an offence under s 193B(2) (knowingly dealing with proceeds of crime). It did not refer to the offer to plead guilty to an offence under s 193B(3) of recklessly deal with proceeds of crime, which was made by the applicant on 8 October 2019 – after the case conference, but before committal.

62. The 8 October 2019 offer was plainly one that fell within s 75(1)(b) and was required to be included in the certificate by s 75(4). It ought to have been included, and its omission from the certificate was a mistake. The idea that the accused should be disadvantaged by a mistaken omission from the certificate is most unattractive, and not one which should be attributed to the legislature.

63. In my opinion, insofar as Sentencing Procedure Act, s 25E(2)(a), refers to “an offer recorded in a negotiations document to plead guilty to an offence”, and s 25B defines “negotiations document” as “a case conference certificate (including any later plea offer)”, s 25E(2)(a) should be construed as capturing an offer which was recorded, or ought to have been recorded, in a negotiations document.

64. On that basis, the applicant was entitled to a discount of 25%, not the 10% she was allowed.

65. This was not a House v The King [45] error in the exercise of a discretion, but in the nature of a slip, in that neither the prosecution, nor the defence, nor the judge adverted to the correct position so far as entitlement to a discount was concerned. It affected only a discrete element of the sentence, namely the amount of the utilitarian discount. This then gives rise to the question whether this Court must, in conformity with Kentwell v The Queen (“Kentwell”),[46] re-exercise the sentencing discretion afresh, or whether it can simply adjust the sentence to correct the slip.

    45. (1936) 55 CLR 499; [1936] HCA 40.

    46. (2014) 252 CLR 601 at 617-618 [42] (French CJ, Hayne, Bell and Keane JJ); [2014] HCA 37.

66. A similar – but as will be seen, not identical – question arose in Lehn v R (“Lehn”),[47] which, however, predated the “Early Appropriate Guilty Plea” scheme and was decided under legislation which provided for a discretion as to the appropriate discount. In Lehn, a guilty plea had been entered at the earliest opportunity. The Crown made no submission that less than the full 25% utilitarian discount should be applied, but the sentencing judge applied a discount of only 20%, noting that “care must be taken not to attribute a discount that would have the effect of reducing a sentence to below that which would be recognised to accurately reflect the Court’s assessment of the objective gravity of the offending conduct”. [48] On appeal, it was accepted by both parties that the failure of the sentencing judge to raise this with the parties at the hearing was a denial of procedural fairness. In those circumstances, a five-judge bench of this Court held that it was required by Kentwell fully to re-exercise the sentencing discretion. The Court held that where the discretion has miscarried in respect of a discrete component of the sentencing process, just as where it has miscarried generally, it is the duty of the Court of Criminal Appeal to exercise the discretion afresh. [49] However, a significant reason for that approach was that the “instinctive synthesis” approach to sentencing was not consistent with a separate adjustment of a discrete component, as all the components had to be considered together. As the Chief Justice said: [50]

“Further, there are difficulties with the alternative approach. The instinctive synthesis approach to sentencing is now well-established. As explained by McHugh J in Markarian, it involves identifying all factors relevant to the sentencing discretion, discussing their significance and making a value judgment as to what is the appropriate sentence: at [51]. A separate adjustment of a particular component of a sentence infected by error does not seem consistent with this approach.”

[32] …. She told police that she didn't know that the formula she was purchasing was stolen, she only purchased the formula from persons who would call her and tell her that they have formula at a cheap price. At QA 308 of her ERISP, she told police that she sends baby formula to China on behalf of customers who approach her at the shop who want formula sent overseas. In relation to the formula, she sells the formula to other persons who are called ‘daigo’.

[33] At QA133 [the applicant] stated ‘… there's also a third kind of suppliers like a being individual suppliers that day. Ah these people go to supermarkets such as Woolworths, they purchase you know products from there then on sell it, on sell them to me……’ (emphasis in original).

Submissions of the applicant

279. The applicant's submissions in support of this ground essentially repeated those advanced in support of particular (1) of the application for leave to appeal against conviction concerning the terms of the indictment.

Submissions of the Crown

280. The Crown submitted that there was no basis on which it had been open to the sentencing judge to reject the applicant's plea. Whilst acknowledging that circumstances may arise where it is incumbent upon a sentencing judge to reject a plea of guilty where an essential element of the offence is traversed, the Crown submitted that this did not occur in the present case because the three statements upon which this ground relied were not inconsistent with the plea of guilty which had been entered.

Consideration

281. As Adamson J has pointed out (at [187]) in addressing the first particular of the application for leave to appeal against conviction, the Crown did not have to prove that the applicant knew that the baby formula was stolen. What the Crown had to prove was that the applicant was reckless as to that fact, or in other words, that she was aware of the possibility that the baby formula was stolen, and decided to deal with it, notwithstanding that possibility. In this respect, the reference in this ground of appeal to “the crucial element of knowledge” is entirely misplaced. The applicant was not charged with an offence that required proof of knowledge.

282. Neither the statements attributed to the applicant by Mr Awit, nor those attributed to the applicant by the author of the Sentence Assessment Report, were at odds with the element of recklessness that the Crown was required to prove, and which the applicant had conceded by virtue of her plea. Similarly, at their highest, the applicant’s statements in the record of interview to which reference was made in the agreed facts (bearing in mind that the entirety of the interview was not before the sentencing judge) were to the effect that she did not know that the baby formula was stolen. That did not amount to a traversal of her plea, because the Crown was not required to prove such knowledge.

283. For these reasons, this ground is not made out.

Ground 14 – The Sentencing Judge gave too much weight and disproportionate weight to the Agreed Facts vis-a-vis the real role of the Applicant's conduct in the commission of this charge and related stealing offences.

The findings of the sentencing judge

284. The findings of the sentencing judge as to the applicant’s role have been previously set out at [260] above.

Submissions of the applicant

285. The written submissions upon which counsel for the applicant relied did not precisely articulate the particular matter(s) to which her Honour is said to have ascribed too much weight. A complaint appeared to be made as to the manner in which her Honour addressed the issue of money derived by the applicant from her offending, as well as a complaint that her Honour’s reasons reflect a finding that the applicant had “organised” those responsible for the theft of the baby formula.

Submissions of the Crown

286. In short, the Crown submitted that the sentencing judge was bound to, and did, consider the agreed facts, and that her reasons reflect findings made in accordance with those facts.

Consideration

287. The terms in which this ground is drafted, and the submissions in support of it, are both vague and imprecise. The ground does not specify the facts to which her Honour is said to have ascribed too much weight. Moreover, if it is assumed that the reference to “related stealing offences” is a reference to the theft of the baby formula, it was not part of the Crown case against the applicant that she participated in such theft. Accordingly, the reference in the ground of appeal to the “real role of the applicant's conduct in the … related stealing offences” is something of a non-sequitur.

288. The nature and extent of the applicant’s offending was encapsulated in the agreed facts which were before her Honour. Her Honour's findings as to the role of the applicant were entirely consistent with those agreed facts. Nowhere in her Honour’s judgment is there a finding that the applicant was responsible for “organising” those who had stolen the baby formula. The applicant's interaction with those persons was accurately described by her Honour in the findings set out at [260] above.

289. For all of these reasons, this ground is not made out.

Ground 15 – The Sentencing Judge failed to give appropriate consideration and weight to the subjective factors in favour of the Applicant.

The reasons of the sentencing judge

290. The sentencing judge commenced her assessment of the applicant’s subjective case by referring to the fact that she had no prior convictions. Her Honour went on to summarise, at considerable length, the applicant's personal background which was set out in the report of Mr Awit. Her Honour also made express reference to the testimonials tendered on the applicant's behalf, and found that she was a person of otherwise good character. However, in light of the nature of the offending, her Honour considered that such prior good character was of less weight than would have been the case in an offence “which [was] a one-off aberration”. Her Honour made specific reference to the fact that the applicant had co-operated by participating in an interview with police, and accepted that her expressed remorse and contrition were genuine.

291. Her Honour summarised the contents of the applicant’s unsworn statement, and in doing so made specific reference to the applicant’s role within her family. The overwhelming inference is that her Honour generally accepted the contents of that unsworn statement, even though it was not tested by cross-examination.

292. Her Honour found that the applicant's prospects of rehabilitation were reasonable, but was concerned by the fact that she had engaged in multiple transactions over a significant period of time. In all of the circumstances, her Honour considered that the applicant was at risk of further offending.

293. Her Honour accepted that the applicant was presently suffering from a mental illness and that she was, as a consequence, someone upon whom a custodial sentence would weigh more heavily. In the latter context, her Honour made express reference to the applicant’s wrist injury sustained in 2012, and its effect on her physical condition. Her Honour also accepted that there would be an additional degree of hardship imposed upon the applicant in custody as a consequence of the current pandemic.

294. Her Honour regarded general deterrence as an important consideration, although she accepted that its significance was reduced on account of the applicant's mental illness. Her Honour also considered that personal deterrence and denunciation were relevant considerations.

295. Finally, her Honour made a finding of special circumstances in favour of the applicant on the basis that she would benefit from an extended period of supervision so as to ensure that she had the opportunity to address her ongoing mental health issues in the course of reintegrating into the community.

Submissions of the applicant

296. Counsel for the applicant submitted that the sentencing judge had “erroneously used objective facts to downgrade the [applicant’s] strong subjective factors”. It was submitted that there were a series of subjective factors “which should have been given far more weight” by the sentencing judge, namely:

1. the applicant’s “age of 50 years as a model citizen be it in China or Australia”;

2. the absence of any criminal record;

3. the fact that the applicant was a “first offender”;

4. the applicant’s “not insignificant health problems, be it mental health or others”;

5. the applicant's charitable and community work;

6. the applicant’s “good family attributes, and particularly as a caring mother”;

7. the applicant’s co-operation with police;

8. the applicant's lack of knowledge that the goods were stolen;

9. the applicant's shame and contrition; and

10. the applicant's “expertly documented low risk of re-offending”.

Submissions of the Crown

297. The Crown submitted that all subjective factors that were open to be considered by the sentencing judge were, in fact, considered.

Consideration

298. The gravamen of the applicant's complaint under this ground is that the sentencing judge should have given “far more weight” to each of the factors set out above. Inherent in that submission is an acceptance of the fact that the sentencing judge gave those factors some weight. This Court has observed on a number of occasions that attribution of weight to a particular factor or factors on sentence is a matter wholly within the discretion of the sentencing judge: R v Baker [2000] NSWCCA 85 at [11]; Ryan v R [2009] NSWCCA 183 at [33]. It follows that the circumstances in which issues of weight will justify intervention by this Court are narrowly confined.

299. The manner in which the sentencing judge assessed the applicant’s subjective case was, to say the least, comprehensive. Each and every one of the matters set out in the written submissions of the applicant was expressly referred to by the sentencing judge in her reasons. As to the matter in (8), I again note that the applicant was not charged with an offence which required the Crown to prove knowledge. In all of these circumstances, there is no occasion for intervention by this Court.

300. For these reasons, this ground is not made out.

Ground 16 – The Sentencing Judge did not fully and properly consider all the alternatives to a full time term of imprisonment.

Ground 17 – The sentencing judge imposed an excessive custodial sentence in the overall and prevailing special circumstances in this matter.

301. These grounds may be conveniently dealt with together.

The sentence proceedings

302. Before the sentencing judge, Mr Shukoor conceded that no penalty other than imprisonment was appropriate, but submitted that a custodial sentence of two years or less was warranted. He further submitted that in those circumstances, it was appropriate that any term of imprisonment be served by way of an Intensive Corrections Order. He urged, in the event that the sentencing judge was not minded to take that course, that her Honour make a finding of special circumstances. Whilst her Honour rejected the submissions that an Intensive Corrections Order was appropriate, she acceded to the submission as to special circumstances. In doing so, her Honour specifically referred to the statutory threshold set out in s 5 of the Crimes (Sentencing Procedure) Act 1999 (NSW) (the Sentencing Act).

Submissions of the applicant

303. Counsel for the applicant submitted the sentencing judge had erred in imposing a full-time custodial sentence in circumstances where:

1. a custodial sentence would weigh heavily on the applicant;

2. the applicant would be entering custody for the first time;

3. the applicant's prospects of rehabilitation were good; and

4. general deterrence “would not be of as much importance”.

304. It was further submitted that the applicant's conduct had amounted to nothing more than a “reckless mistake” and that her plea of guilty had saved a lengthy trial. It was submitted that in these circumstances, a sentence of full-time imprisonment should not have been imposed.

305. Whilst counsel for the applicant made what might be described as a general complaint of manifest excess, he advanced, effectively as a particular of that complaint, two further matters.

306. The first was a complaint of unjustified disparity between the sentence imposed on the applicant and that imposed upon her co-offender.

307. The second centred upon the fact that when the matter was still before the Local Court, the applicant had offered to plead guilty to a charge contrary to s 193B(3) of the Act, and that this offer had been refused by the Crown. Counsel pointed out that in circumstances where that plea had ultimately been accepted, and because of the necessity to have regard to the entire history of the proceedings, the Crown’s reliance before this Court on “procedural aspects to attempt to negate the real and substantive utilitarian value” of the plea were “incorrect and inappropriate”. Counsel’s submissions did not include any examination of the legislation creating those “procedural aspects” and did not otherwise articulate why the Crown’s position was said to be “incorrect and inappropriate”, although there was a passing reference to the fact that the copy of the case conference certificate provided to this Court (the significance of which I have discussed further below) was unsigned.

Submissions of the Crown

308. In terms of the general complaint of manifest excess, the Crown submitted that on the whole of the evidence, and particularly having regard to the applicant's role in the offending, the sentence imposed was not unreasonable or plainly unjust.

309. As to the parity issue the Crown, whilst acknowledging that the sentences imposed upon the applicant and her co-offender were disparate, submitted that such disparity was completely justified having regard to the applicant's role in the offending, compared with that of her co-offender.

310. As to the issue regarding the discount applied to reflect the applicant’s plea of guilty, the Crown submitted that the issue was governed by various provisions of the Sentencing Act and the Criminal Procedure Act 1986 (NSW) (the CPA). By reference to those provisions, which I have considered in detail below, the Crown submitted that the discount applied by the sentencing judge was assessed strictly in accordance with those provisions, and was therefore correct.

Consideration

The parity issue

311. It is convenient to deal firstly with the parity issue.

312. The principle of equal justice requires, so far as the law permits, that like cases be treated alike. Equal justice also requires, where permissible, the different treatment of persons according to the differences between them. Consistency in the punishment of offences finds its expression in the parity principle which requires that like offenders be treated in a like manner, and which allows for different sentences to be imposed on like offenders to reflect different degrees of culpability and/or different circumstances: Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49 at [28].

313. The parity principle also recognises that equal justice requires that, as between co-offenders, there should not be a marked disparity which gives rise to one offender having a justifiable sense of grievance. The question is always one of due proportion being structured between those sentences which is to be determined having regard to the different circumstances of the co-offenders and their differing degrees of criminality: Postiglione v The Queen (1997) 189 CLR 295 at 301; [1997] HCA 26; Lowe v The Queen (1984) 154 CLR 606 at 610 – 611; [1984] HCA 49. Importantly, the sense of grievance necessary to attract appellate intervention with respect to sentences which are said to be disparate is to be assessed by objective criteria. It does not involve a judgment about the feelings of the person who complains of the disparity. It follows from all of these considerations, that this Court will refuse to intervene when disparity is justified by the differences between co-offenders: Green at [31].

314. The co-offender was sentenced to imprisonment for 1 year and 4 months. The sentencing judge determined that such imprisonment should be served by way of an Intensive Corrections Order. In the course of her reasons on sentence, her Honour observed that the applicant was the person who had direct contact with those responsible for the theft of the baby formula, and that most of the time she would directly meet with those persons for the purposes of purchasing it. Her Honour observed that “on occasions” the applicant would arrange for the co-offender to perform that role. Beyond that, none of the aspects of the applicant’s role which her Honour had identified were attributed to the co-offender. There was, therefore, a marked difference between the objective criminality of each of them.

315. In my view, the applicant has no justifiable sense of grievance arising out of the sentence imposed upon the co-offender. In the circumstances that I have outlined, and having regard to the conclusions of the sentencing judge, the role played by the applicant, and thus her criminality, was substantially higher than that of the co-offender. That completely explains the different sentences which were imposed.

The discount applied to the plea of guilty

316. In addressing the issue raised regarding the discount applied to the applicant’s plea of guilty, it is firstly necessary to set out some background.

317. The Justice Legislation Amendment (Committals and Guilty Pleas) Act 2017 (NSW) made a number of amendments to the CPA and the Sentencing Act which saw the introduction of what is generally referred to as the “Early Appropriate Guilty Plea Scheme” (the scheme). The scheme applies to all sentence proceedings for indictable offences, other than those specifically exempted by s 25A(1)(a) and (b) of the Sentencing Act, commenced on or after 30 April 2018. There is no issue that the scheme applied to the applicant’s proceedings.

318. A principal feature of the scheme was the introduction of a system of fixed discounts to reflect an accused’s plea of guilty in place of the calculation of such discounts in the exercise of discretion of a sentencing judge. The strict application of the scheme is reflected in s 25A(2) of the Sentencing Act which provides:

25A Application of Division

….

(2) A court must not apply any other discount for the utilitarian value of a guilty plea to an offence to which this Division applies other than the discount provided for by this Division.

319. The scheme is given effect, firstly by a series of procedural provisions set out in the CPA, and secondly by a series of practical provisions set out in the Sentencing Act.

320. In terms of the procedural provisions, s 70 of the CPA mandates, as part of the scheme, the convening of a case conference, a principal objective of which is to determine whether there are any offences to which an accused person is willing to plead guilty: s 70(2).

321. Section 74 of the CPA requires that a case conference certificate be filed following the case conference. To the extent relevant for present purposes, s 75 of the CPA addresses the content of such a certificate, and provides:

75 Contents of case conference certificate

(1) The case conference certificate is to be in the form prescribed by the regulations and is to certify as to the following matters--

…

(b) any offers by the accused person to plead guilty to an offence specified in the charge certificate or to different offences, (my emphasis)

…

(4) A case conference certificate must certify as to all the matters of the kind referred to in subsection (1) that occur before the certificate is filed, including any written offers of a kind referred to in subsection (1) that were made by the accused person or the prosecutor, and served on the prosecutor or accused person, before or after any case conference was held.

322. Section 77 of the CPA addresses the situation where an accused person makes an offer to plead to an offence after the filing of the case conference certificate:

Further offers

(1) This section applies to an offer (a plea offer) if--

(a) the offer is made by the accused person or the prosecutor after the filing of the case conference certificate in committal proceedings, and before the accused person is committed for trial or sentence, and

(b) the offer is an offer of a kind that would have been required to be included in a case conference certificate if it had been made before the filing of the certificate, and

(c) the offer is made in writing and served on the other party, and

(d) the offer is filed in the registry of the Local Court.

(2) A plea offer is, for all purposes, to be treated as if it formed part of the case conference certificate.

(3) A plea offer is to be annexed to the case conference certificate in the committal proceedings.

323. The chronology of events which are relevant to this ground commences in the judgment of Adamson J at [99]. However, for the purposes of considering this ground, and from the point of view of the procedure prescribed by the CPA, that chronology must be supplemented by reference to two additional matters.

324. Firstly, the copy of the case conference certificate provided to this Court by the Crown states that it was “filed on 31 October 2019 at Parramatta Local Court”. That is consistent with the fact that the applicant was committed for trial on that day.

325. Secondly, and significantly, the certificate did not record the applicant’s offer which was made on 8 October 2019 to plead guilty to an offence contrary to s 193B(3) of the Act, as was required by s 75(1)(b) of the CPA. The certificate stated the following:

PART 2 – OFFERS BY ACCUSED PERSON AND PROSECUTOR

Details of Offer

The prosecution during the case conference informed defence that the only charge that the Crown would accept a plea of guilty to would be the current sequence 7 – s 193B(2).

Defence claim that knowledge is denied for all accused persons that they knew that the baby formula was stolen.

Draft agreed facts were sent to defence on 17/10/19.

On 30/10/19 the DPP was notified that the accused wishes to commit the matter for trial.

326. The omission of any reference to the applicant’s offer, particularly where there was a reference to the Crown’s stated position, is not explained in the evidence. No affidavit from Mr Awada, the solicitor who had the carriage of the matter at the time and who communicated the offer, was filed in this Court. Mr Shukoor had not been retained in the matter at that point and in those circumstances, no allegation of incompetence was made against him in this respect.

327. In all of the circumstances I am left to conclude that the omission was simply a mistake, and was the result of the statutory requirement simply being overlooked, both by Mr Awada and by the solicitor from the ODPP who had the carriage of the matter.

328. Bearing in mind the procedural requirements of the scheme to which I have referred, and also bearing mind what occurred (and did not occur) in the present case in terms of those requirements, it is convenient to turn to the provisions of the Sentencing Act which prescribe the discount to be applied to reflect a plea of guilty. In doing so, it is relevant to note that s 25B of the Sentencing Act relevantly defines the term “negotiations document” as meaning:

1. if an offender was represented by an Australian legal practitioner in proceedings –

1. a case conference certificate (including any later plea offer) filed in committal proceedings for the offence concerned under the Criminal Procedure Act 1986;

2. …

329. In prescribing the applicable discounts, s 25D(2) provides as follows:

(2) Amounts of sentencing discounts The discount for a guilty plea by an offender (other than an offender referred to in subsection (3) or (5) or section 25E is as follows--

(a) a reduction of 25% in any sentence that would otherwise have been imposed, if the plea was accepted by the Magistrate in committal proceedings for the offence;

(b) a reduction of 10% in any sentence that would otherwise have been imposed, if the offender was committed for trial and the offender --

(i) pleaded guilty at least 14 days before the first day of the trial of the offender, or

(ii) complied with the pre-trial notice requirements and pleaded guilty to the offence at the first available opportunity able to be obtained by the offender,

(c) a reduction of 5% in any sentence that would otherwise have been imposed, if paragraph (a) or (b) does not apply.

330. Section 25E makes provision for the application of a discount where a plea of guilty is offered by an accused person, but is refused by the Crown when it is made. That reflects, prima facie, what occurred in the present case. Specifically, ss 25E(2) and (3) provide as follows:

25E   Sentencing discounts to apply in certain cases where guilty plea offer made for different offences and refused when made

(1) …

(2) Discount where offer later accepted In determining the sentence for an offence, the court is to apply a sentencing discount for the utilitarian value of a guilty plea in accordance with this section if--

(a) the offender made an offer recorded in a negotiations document to plead guilty to an offence, and

(b) that offence (the different offence) was not the offence the subject of the proceedings when the offer was made, and

(c) the offer was refused but accepted by the prosecutor after the offender was committed for trial, and

(d) the offender pleaded guilty to the different offence at the first available opportunity able to be obtained by the offender.

(3) Discount variation--offer to plead guilty to different offence The discount to be applied by the court is as follows--

(a) a reduction of 25% in any sentence that would otherwise have been imposed, if the offer was made before the offender was committed for trial,

(b) a reduction of 10% in any sentence that would otherwise have been imposed, if the offer was made after the offender was committed for trial and at least 14 days before the first day of the trial of the offender,

(c) a reduction of 5% in any sentence that would otherwise have been imposed, if the offer was made less than 14 days before or on or after the first day of the trial of the offender.

331. The Crown who appeared on sentence (who was not the Crown before this Court) provided written submissions to the sentencing judge in which he relied upon s 25D(2)(b) as the section which governed the discount, stating:

Given that the pleas of guilty were entered after the matter was committed for trial, the maximum discount that can be applied for the utilitarian value of the plea is 10% for each offender – as per section 25D(2)(b) Crimes (Sentencing Procedure) Act 1999.

332. The written submissions of Mr Shukoor outlined the procedural history of the matter. Those submissions made reference to the procedural history of the matter, but did not refer to the applicant’s earlier offer. That is understandable, given that the offer was made well before he was retained in the matter. In those circumstances, Mr Shukoor accepted that the applicable discount was 10%.

333. The sentencing judge stated the following in her reasons:

The plea of guilty was entered after the matter had been committed for trial but prior to a trial date being set. The plea was entered to an ex officio indictment. In this matter it is accepted that the appropriate discount for the plea of guilty is pursuant to s 25D(3)(b) and it would be a reduction of 10% of the sentence that would otherwise have been imposed.

334. It is evident that her Honour took the view that the provision which governed the discount was s 25D(3)(b). That was not the provision relied upon by the Crown, or by Mr Shukoor.

335. In any event, the Crown before this Court submitted that the discount of 10% applied by the sentencing judge was correct because:

1. the applicant had made an offer to plead guilty to an offence contrary to s 193B(3) of the Act;

2. the case conference certificate was a negotiations document as defined in s 25B(a) of the Sentencing Act;

3. s 25E(2)(a) of the Sentencing Act critically required that the applicant’s offer be recorded in the case conference certificate;

4. the offer was not so recorded;

5. the absence of any recording of the offer in the case conference certificate meant that s 25E of the Sentencing Act was not engaged; and

6. as a consequence, the correct discount to be applied was, as submitted to her Honour, 10% as mandated by s 25B(3)(b) of the Sentencing Act.

336. It is important to note that the position taken by the Crown before this Court appeared to accept that the applicant met the conditions of s 25E(2)(b)-(d), in which case, leaving aside the asserted failure to comply with s 25E(2)(a), she would otherwise have been entitled to a discount of 25% as provided for by s 25E(3)(a).

337. There is no doubt that the case conference certificate is a “negotiations document”. There is also no doubt that there was no reference to the applicant’s offer in that certificate. The question, therefore, turns on the interpretation of the phrase “an offer recorded in a negotiations document” in s 25E(2)(a). The Crown advances a literal interpretation of that phrase, such that the absence of any reference to the applicant’s offer in the case conference certificate means that the offer was not “recorded”.

338. Acceptance of that interpretation would bring about a result which in my view could not possibly have been intended by the Parliament when enacting the scheme. Specifically in my view, it could not possibly have been the Parliament’s intention, in enacting s 25E, to bring about a result whereby an offender was deprived of the benefit of a significant discount on his or her sentence as the result of both parties to the proceedings simply overlooking a requirement to record the undisputed fact of a previous offer to plead guilty. That is particularly so in circumstances where the clear intention of the Parliament, reflected in s 75(1)(b), was that any offer to plead guilty to (inter alia) a different offence be recorded in the case conference certificate.

339. In all of these circumstances, I take the view that for the purposes of s 25E(2)(a), the phrase “an offer recorded in a negotiations document” as it appears in s 25E(2) should be construed as meaning “an offer which was recorded or which was required to be recorded in a negotiations document”. I have reached that view for a number of reasons.

340. Firstly, such an interpretation avoids what would otherwise be a plainly unjust outcome being visited upon the applicant.

341. Secondly, it is an interpretation which is consistent with the intention underlying s 75(1)(b) that offers be recorded.

342. Thirdly, it is consistent with principles of statutory interpretation, including that:

1. if one construction of a statutory provision will do manifest injustice, and the other will avoid it, the latter should be adopted: Public Transport Commission of New South Wales v J Murray-More (NSW) Pty Limited (1975) 132 CLR 336 at 350 per Gibbs J (as his Honour then was); [1975] HCA 28; and

2. a construction of a statute which interferes with the legal rights of a subject to a lesser extent and produces the less hardship is to be preferred to another, which has the opposite effect: Federal Commissioner of Taxation v Smorgon (1977) 16 ALR 721 at 729 per Stephen J; State of Victoria v R [2014] VSCA 311 at [61] per the Court (Nettle JA (as his Honour then was), Osborn and Whelan JJA).

343. For the sake of completeness I should note that I have also considered whether s 25E was engaged by virtue of the provisions of s 77 of the CPA, but I am satisfied that it was not. The applicant’s offer of 8 October 2019 was not an offer made after the filing of the case conference certificate, and accordingly the requirement in s 77(1)(a) of the CPA was not met. The Crown’s offer to accept the plea which was made on 6 March 2020 was made after the filing of the Crown case statement, but not before the applicant was committed for trial (the applicant having been committed on 31 October 2019). Accordingly, once again the requirement in s 77(1)(a) of the CPA is not met. In this regard, it is to be noted that the requirements in ss 77(1)(a) to (d) are cumulative.

344. For these reasons, the sentencing judge erred by allowing a discount of 10%. The discount should have been 25%. I hasten to add, however, that in the circumstances of this case, there can be no criticism whatsoever levelled at her Honour for the course that she took.

345. Having found error, it is necessary for this Court to proceed to re-sentence the applicant in the fresh exercise of the sentencing discretion. The general complaint of manifest excess need not be considered in those circumstances.

Re-sentence

346. In light of the conclusions I have reached, a discount of 25% should be applied to the sentence that would otherwise have been imposed.

347. Having considered the evidence, I adopt the findings of the sentencing judge as to the objective seriousness of the offending, and the level of the applicant’s recklessness. I also adopt the observations and findings of the sentencing judge in relation to the applicant's subjective case. The aspects of that subjective case were not insignificant. As against that, the seriousness of the offending was reflected in the fact that it was committed over a significant period of time, involved considerable planning and was conducted for what was, on the evidence, a substantial profit. I am also mindful of the fact that a subjective case, no matter how powerful, cannot be permitted to result in the imposition of a sentence which does not reflect the objective gravity of the offending.

348. In light of the applicant’s mental illness I am prepared to make a finding of special circumstances, on the basis that her rehabilitation will be assisted by a longer period on parole. In that regard I propose to adopt the ratio adopted by the sentencing judge, namely one of 66.67%.

ORDERS

349. For the foregoing reasons I propose the following orders:

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.

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Endnotes

Amendments

03 August 2021 - "appropriate" replaced by "inappropriate" - [307]

03 August 2021 - "Adler" replaced by "Alder" - [127], [137], [208], [211]

Decision last updated: 03 August 2021