Ke v R - [2021] NSWCCA 177 - NSWCCA 2021 case summary — Zoe

NSWNSWCCA

Ke v R

[2021] NSWCCA 177

Court of Criminal Appeal (NSW)|2021-07-08|Before: Brereton JA, Adamson J, Bellew J, Legislation Amendment J

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At a glance

Source facts

Court

Court of Criminal Appeal (NSW)

Decision date

2021-07-08

Before

Brereton JA, Adamson J, Bellew J, Legislation Amendment J

Catchwords

[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

Source

Original judgment source is linked above.

Catchwords

[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 QueenQuinn 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

Judgment (72 paragraphs)

[1]

The applicant's arrest and interview

At about 8pm on 22 August 2018, the applicant was apprehended and charged with various offences arising from the sale of baby formula products. On 23 August 2018, the applicant participated in an ERISP. The ERISP commenced at 4.46am and concluded at 6.40am. Relevantly, in the course of the ERISP, the applicant admitted that she bought items at a cheap price from "suppliers" from whom she received no documentation. She said in her ERISP: "A120: Because the price is cheap so there's no receipts".
She was shown photographs of persons alleged to have been her suppliers, some of whom she identified as being known to her. She told police that she did not know that the suppliers had stolen the formula but acknowledged that she would only buy from those who contacted her and told her that they had baby formula for sale at a cheap price. She admitted that her suppliers obtained the formula from "supermarkets such as Woolworths" before they on-sold it to her. She sold the formula to people who wanted her to send it overseas to China.
Each of these suppliers, who were referred to as "rogue suppliers", had been interviewed by, and made statements to, police to the effect that they had stolen the baby formula from major outlets and on-sold it to the applicant at various locations (which included carparks and back lanes) at times which were arranged shortly before the transaction took place to avoid detection by the police. The rogue suppliers said that the applicant knew that they had stolen the baby formula which she purchased from them. These statements were summarised in the Crown case statement, which is referred to below.

[2]

The charges and the criminal proceedings in the Local Court

On 23 August 2018 at 2.25pm, the applicant was served with a court attendance notice which charged the following sequences (Charge H69424179) and which required her attendance at the Local Court at Burwood on 17 September 2018: Sequence Time Offence Section of Crimes Act 1 6am 17/11/2017-10.50pm 22/8/18 Knowingly direct activities of a criminal group 93T(4A) 2 4pm 1/8/2018-10.50pm 22/8/2018 Knowingly participate in criminal group assist crime 93T(1A) 3 4pm 1/8/2018-10.50pm 22/8/2018 Participate in criminal group contribute to criminal activity 93T(1) 4 10pm-10.50pm 22/8/2018 Participate in criminal group contribute to criminal activity 93T(1) 5 2pm-10.50pm on 22/8/2018 Participate in criminal group contribute to criminal activity 93T(1) 6 6am on 17/4/2018-10.50pm on 22/8/2018 Deal with proceeds of crime (baby formula, vitamins and honey) being reckless as to whether it was the proceeds of crime 193B(3)

[3]

On 23 August 2018, the applicant and her partner were released from police custody. The applicant's daughter, Rosemary (who was subsequently charged), took them to see a solicitor, whose identity is not revealed by the evidence.
On 17 September 2018, the applicant appeared at Burwood Local Court. She cannot recall whether she was represented by a solicitor on that occasion. At this stage of the proceedings, she instructed her then solicitors (who have not been identified) that she was not guilty because she "did not know the baby formula products were stolen at the time [she] was purchasing them."
At about the end of 2018, the applicant changed her solicitor. She instructed Sydney Criminal Lawyers to represent her and her partner (and subsequently, her children). Initially, Fouwad Awada was the solicitor who had conduct of the matter. The initial costs agreement dated 27 December 2018 provided an estimate of $15,000 for each of the applicant and her partner for work done while the matter was still in the Local Court. It also provided that if the matter proceeded to the District Court, a further costs agreement would be advised.
Both Rosemary and Jay were subsequently charged with associated offences.
On 19 February 2019, the applicant was served with a further court attendance notice which required her attendance at Parramatta Local Court (where the matter had been transferred) and which charged a further sequence as follows: Sequence Time Offence Section of Crimes Act 7 6am 1/11/2017-10.50pm 22/8/18 Deal with proceeds of crime (baby formula, vitamins, electric toothbrushes, honey and cash) knowing that it was the proceeds of crime. 193B(2)

[4]

On 13 June 2019, the ODPP filed a charge certificate which certified a single charge of knowingly deal with the proceeds of crime contrary to s 193B(2) of the Crimes Act against each of the applicant, her partner, Rosemary and Jay. The maximum penalty for an offence under s 193B(2) is 15 years' imprisonment. This corresponded with sequence 7 above. The other six charges were withdrawn.
On 9 July 2019, Rosemary sent copies of invoices to Mr Awada to demonstrate that the applicant purchased stock from large suppliers. However, many of the invoices do not relate to the period of the charge to which the applicant pleaded guilty and do not concern the purchase of baby formula.

[5]

Plea negotiations in the Local Court

On 28 August 2019, a case conference was held at the ODPP which was attended by the applicant's solicitor from Sydney Criminal Lawyers, who also represented the applicant's partner, Rosemary and Jay. At the conference, the ODPP offered to accept a plea from the applicant to the charge contrary to s 193B(2) of the Crimes Act (knowingly deal with proceeds of crime), and a plea from the applicant's partner and each of the two adult children to a charge contrary to s 193B(3) of the Crimes Act (recklessly deal with proceeds of crime). The offers were independent and not conditional on the acceptance of the offer by any one of the accused persons.
Mr Awada informed the ODPP that the accused persons needed more time to consider the offer. The ODPP confirmed the offer by email on 5 September 2019 and attached draft facts for the accused persons other than the applicant. Mr Awada replied the following day by email as follows: "I do envision that there are very real prospects of resolving these matters, and accordingly, I will be seeking a further adjournment for consideration of the attached facts and my clients' respective positions."
Almost a month later, on 8 October 2019, Mr Awada wrote to the ODPP to inform it that that the applicant and her partner were willing to plead guilty to charges contrary to s 193B(3) of the Crimes Act and that their children would seek to have their matters committed for trial. This is consistent with what the applicant told Mr Shukoor on 6 March 2020 (see below).
The ODPP responded later that day (8 October 2019) by informing Mr Awada that the Officer-in-Charge (OIC) had indicated that she would accept a plea to a s 193B(2) charge in respect of the applicant and a plea to a s 193B(3) charge in respect of the applicant's partner and, if pleas were entered on those bases, the charges against the children would be withdrawn. The ODPP requested a response.
On 9 October 2019, Mr Awada wrote to the ODPP to indicate that he would seek a further two-week adjournment of the matter on 10 October 2019 with a view to "confirming [the applicant's] plea of guilty to the current charge". Subsequently, by agreement between the practitioners, the length of the adjournment to be sought from the court was subsequently extended to three weeks.
On 17 October 2019, the ODPP wrote to Mr Awada to inform him that the Crown would accept a plea of guilty from the applicant to the s 193B(2) charge and from the applicant's partner to the s 193B(3) charge. The ODPP indicated that if pleas were entered, it would withdraw the charges against the applicant's children. This offer corresponded with the indication given by the OIC on 8 October 2019.

[6]

The chronology as established by documents and evidence adduced by the Crown

At 8.35am on 27 March 2020, the ODPP sent an email to Mr Shukoor, attaching "updated agreed facts". At 8.44am, Mr Shukoor responded by informing the ODPP that he would not be appearing today but would forward the facts to his instructing solicitor. He explained in his oral evidence in this Court that he had not been briefed to appear on 27 March 2020 as it was expected that the arraignment would be a formality as there had been an agreement in principle that the applicant would plead guilty and it was expected that there would be agreement as to the facts. Although Mr Shukoor did not appear on 27 March 2020, he spoke to Ms Chand by telephone in the course of the morning about the facts.
At 9.04am Mr Shukoor responded to the ODPP with proposed amendments to paragraphs 10 and 14 of the draft statement of facts. He concluded the email: "Let me know if any issue, and if not, please incorporate into final facts so I can forward to my client. I will be recommending to my client that these facts be accepted."
At 9.13am, Mr Shukoor sent by email to Ms Chand the proposed amended facts which had been finalised overnight. He said: "Please see final attached final iteration of proposed amended facts finalised overnight. The only two issues I am waiting on are paragraphs [10] and [14] - whether the Crown accepts those final amendments in red or not is not of any great moment, but hopefully they will accept those as well. The Crown has very generously agreed these facts in Ms L Ke's favour. The Crown is intent on arraigning Ms L Ke and Mr Y Ke today. In my view the facts are comparatively far more favourable than originally proposed and I cannot see the Crown offering anything better. Are you able to bring the proposed facts immediately to Ms L Ke's attention for approval this morning. I apologise, I know you are off unwell, however, given Crown's insistence of arraignment today and given very favourable fact sheet proposed, in everyone interest that occur today. If Ms Ke requires any further advice or requires discussion, I am happy to do that this morning."
At 9.18am, Mr Shukoor wrote to Ms Chand to inform her that the Crown had agreed to the proposed amendments to paragraphs 10 and 14.
At 9.18am, Ms Chand sent an email to the applicant via Rosemary which attached the final iteration of the proposed amended facts and said: "Please see final attached final iteration of proposed amended facts finalised overnight. The only two issues the banister [sic - barrister] is waiting on are paragraphs [10] and [14] - whether the Crown accepts those final amendments in red or not is not of any great moment, but hopefully they will accept those as well. The Crown has very generously agreed these facts in Ms L Ke's favour. The Crown is intent on arraigning Ms L Ke and Mr Y Ke today. In the barristers view the facts are comparatively far more favourable than originally proposed and Wali cannot see the Crown offering anything better. Are you able to bring the proposed facts immediately to Ms L Ke's attention for approval this morning."

[7]

The applicant's evidence

The applicant deposed in her affidavit affirmed on 21 June 2021 that she did not understand what "recklessness" was prior to entering her plea, although either on 6 March 2020 or "some later date" (27 March 2020) she was told that she was reckless because she "ought to have known the goods were stolen". She also deposed that the agreed facts (which she eventually signed) were not fully read to her and that her complaints about particular aspects were ignored. She said that the interpreter only took her to the last few paragraphs of the facts and that she was told that she "had" to sign the agreed facts or the plea would not be accepted by the Crown. She found that whole procedure to be rushed and understood that she was being told by "everyone" to plead guilty as "it was the best and only thing to do". She felt significant pressure. She deposed that she had brought receipts with her to Court to prove that she bought the formula from wholesalers and that she wanted her legal representatives to use the receipts and show them to the Crown but was told that it was too late for that. I do not except the applicant's evidence in so far as it is contrary to my findings set out above.
The applicant also deposed that she was told that the judge would not allow any further adjournments and that if she did not plead guilty on 27 March 2020, the charges would be maintained against all four of the accused.
She deposed that she was not told by her lawyers about the effect that a conviction would have on her visa status. She said that her visa has been cancelled although her adult children are Australian citizens.
The applicant made several admissions in the course of her evidence, which I accept, as follows. She had been under considerable pressure since her arrest in August 2018. She appreciated from at least the beginning of 2020 when she instructed Mr Awada that she had been reckless as to whether the baby formula was stolen although she did not know that it had been stolen. By the time she decided to plead guilty, she realised that if she went to trial there was a risk that she would be found guilty. She also realised that it would be much more expensive, in financial terms, if she was to go to trial and concluded that she could not afford the legal fees which Sydney Criminal Lawyers had quoted for a trial in which each of the four accused was separately represented. She knew that it would benefit Jay and Rosemary (who was six months' pregnant at the time of the super call-over) if the charges against them were dropped. She made her own decision to plead guilty and did so on the basis that she wanted to "end it because we didn't have the money". It is also significant that in the discussions between the applicant and her children, neither of her children attempted to influence her for their benefit. Indeed, both Rosemary and Jay told their mother that she should "trust her lawyers".

[8]

Rosemary's evidence

As referred to above, Rosemary performed the role of interpreter for her mother at various times. However, on 6 March 2020, she had her own lawyer present and was not with the applicant for the entire period of the negotiations because the parties were separated to take account of the potential conflict.
Rosemary said that the applicant did not ask her children what she should do and that, as she understood it, her mother made her own decision. Rosemary, however, volunteered that, at the time of the super call-over, she was pregnant and that if she had to go to trial it would affect the whole family.
Rosemary deposed that she had brought invoices to court on 27 March 2020, some of which related to the purchase by the applicant of baby formula during the applicant's charge period (between 17 November 2017 and 22 August 2018). She said that they had given the invoices to Mr Park but that he had said that it was too late for them. It was not suggested on behalf of the applicant that the invoices covered all of the baby formula which was located by police when they executed the search warrant referred to above.
I accept Rosemary's admissions that what Ms Chand said at paragraphs 54 and 55 of her affidavit was correct, as follows: "54. I telephoned [the applicant] through the assistance of [Rosemary] and informed her that the court had refused the adjournment and has requested the parties to settle facts or can obtain a trial date. 55. I reiterated 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. I also informed [the applicant] that my colleague Mr Park will be present in court with the court interpreter and the final facts again can be read to her. [The applicant] informed me that she will make [a] decision shortly and in the meanwhile she will make her way to court. …"

[9]

Jay's evidence

Jay recalled Mr Shukoor saying to the family on 6 March 2020 that it would be their only chance to take the Crown's offer that the applicant and her partner plead to recklessly dealing with proceeds of crime. He also recalled that Mr Shukoor said that a plea of guilty to the lesser offence was a good result for the applicant. I do not accept that Jay was present when Mr Shukoor gave this advice to the applicant. I consider that his evidence reflected discussions he had had with the applicant afterwards.
Jay drove the applicant, her partner and Rosemary to Parramatta District Court on 27 March 2020. He dropped them off and went to park the car which meant that he was absent for the initial period when they arrived. He gave evidence that Mr Park told him that if any one of the four accused did not sign the document, all of the four would have to go to trial. Jay was unable to identify any document which he had to sign although he agreed that draft facts concerned the applicant and not him.

[10]

The evidence adduced by the applicant

The applicant made several concessions, which are recorded in the narrative above, which are sufficient to indicate that she was a generally honest witness. While I reject her evidence as to the statements attributed to Mr Shukoor, Ms Chand and Mr Park (set out above), I do not consider her evidence as to these matters to have been deliberately untrue. Rather, I consider that they were the product of the considerable strain which she was experiencing since the time of her arrest on 22 August 2018 and subsequently, particularly at the super call-over and, subsequently, when she entered the plea. Although I am satisfied that she appreciated that it was in her best interests to plead to the lesser offence on the basis of the statement of agreed facts which Mr Shukoor had managed to negotiate for her, it was, nonetheless, an important step which she appreciated at the time could lead to her spending time in custody.
I regard the evidence of Rosemary and Jay of having relatively little weight. They did not distinguish between what they observed and what they were told by the applicant, which meant that they appeared to corroborate what the applicant said, in circumstances where they were simply reiterating what they had been told by the applicant. I do not accept that Rosemary brought invoices to court on 27 March 2020 (since if she had, I consider that Mr Park would have remembered it) but, for the reasons given, nothing turns on that.
Where there is a conflict, I prefer the evidence of Mr Shukoor, Ms Chand and Mr Park to the evidence of the applicant, Rosemary and Jay.

[11]

Subsequent events

On 3 June 2020, the applicant was assessed by Mr Awit, a registered psychologist, for the purposes of the proceedings on sentence. He took a history from her which included the following: "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." [Emphasis added.]
The applicant was cross-examined in this Court about the passage highlighted in the extract above. I do not accept her evidence that she did not appreciate at the time of the offending conduct that she was reckless as to whether the baby formula was stolen.
As referred to above, Mr Shukoor appeared for the applicant at the sentence hearing on 24 June 2020. The applicant was sentenced to a term of imprisonment of two years and three months, with a non-parole period of 18 months' imprisonment commencing on 24 June 2020 and expiring on 23 December 2021. At no time prior to the sentence hearing did the applicant seek to withdraw her plea.
On 21 July 2020, the Department of Home Affairs wrote to the applicant to inform her that on 21 July 2020 her Class BB Subclass 155 Five Year Resident Return visa was cancelled under s 501(3A) of the Migration Act 1958 (Cth) because she did not pass the character test (because the sentence was for a period of 12 months or more) and because she was serving a full-time sentence of imprisonment for an offence against Australian law.
The applicant filed her application for leave to appeal against conviction on 6 January 2021.

[12]

Applicable principles with respect to a challenge to conviction on the basis of a plea of guilty

Before turning to the grounds, it is useful to set out the principles to be applied when there is a challenge on appeal to a conviction following a plea of guilty, which were summarised in R v Thalari (2009) 75 NSWLR 307; [2009] NSWCCA 170 by Johnson J (Young JA and Latham J agreeing) as follows: "[32] This Court may quash a conviction entered upon a plea of guilty in the sentencing court if it is demonstrated that a miscarriage of justice will occur if the appellant is not permitted to withdraw the plea: R v Boag (1994) 73 A Crim R 35 at 36; R v Van (2002) 129 A Crim R 229; Elmir v The Queen [2009] NSWCCA 22 at [33] and following. [33] The onus lies upon the appellant to demonstrate that leave should be granted: R v Marchando (2000) 110 A Crim R 337 at 338 [4]; R v Toro-Martinez (2000) 114 A Crim R 533 at 536 [16]-[23]. The appellant must establish a good and substantial reason for the Court taking the course of granting leave to withdraw the plea: R v Sewell [2001] NSWCCA 299 at [39]; Wong v Director of Public Prosecutions (NSW) (2005) 155 A Crim R 37 at 46 [39]. An application to withdraw a plea of guilty is to be approached with caution bordering on circumspection: R v Liberti (1991) 55 A Crim R 120 at 122; R v Parkes [2004] NSWCCA 377 at [48]. [34] The plea of guilty itself is a cogent admission of the ingredients of the offence: R v SL [2004] NSWCCA 397 at [51]. Indeed, it has been described as the most cogent admission of guilt that can be made: Charlesworth v The Queen [2009] NSWCCA 27 at [25]. [35] 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, and this 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: Meissner v The Queen (1995) 184 CLR 132 at 157; Wong v Director of Public Prosecutions (NSW) (at 45-46)."

[13]

Consideration

The ultimate question for this Court is whether the applicant has shown that there has been a miscarriage of justice. It is convenient to approach the broader question by reference to the particulars set out in the notice of appeal reproduced above, save for particular 9, which is non-specific.

[14]

Particular (1): alleged error in indictment

Mr Bonnici submitted that the wording of the indictment as to the charge was bad in law in that the element of knowledge, as to the baby formula 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. He submitted that the applicable offence with which the applicant ought to have been charged was receiving stolen goods. He argued that, had this offence been charged, the Crown would have had to prove that the applicant knew that the baby formula was stolen. He sought to draw assistance from the Criminal Code Act 1995 (Cth) and, in particular, s 5.4(4), which provides that "[i]f recklessness is a fault element for a physical element of an offence, proof of intention, knowledge or recklessness will satisfy the fault element." This provision is not applicable to an offence under the Crimes Act and, in any event, says no more than that intention is sufficient to prove recklessness, which is the effect of s 4A.
I reject Mr Bonnici's submission. The charge to which the applicant pleaded guilty was the charge of reckless dealing of proceeds of crime under s 193B(3), not dealing with knowledge under s 193B(2). In these circumstances, while the Crown must prove that the goods (the baby formula) were stolen (and it was ultimately common ground in this Court that the goods were stolen), the Crown does not have to prove that the applicant knew that the goods were stolen. All that was required was that the applicant was aware of the possibility that the goods were stolen and decided to deal with them notwithstanding this possibility. This element of an offence under s 193B(3) was consistent with the applicant's admissions in her ERISP and to Mr Awit (set out above).
Particular facts may give rise to any number of charges. The choice of charge is a matter for the prosecutor in the exercise of a discretion and is not reviewable by this Court: Magaming v The Queen (2013) 252 CLR 381; [2013] HCA 40 at [20] and [25] (French CJ, Hayne, Crennan, Kiefel and Bell JJ).

[15]

Particular (2): plea alleged not to be the product of a true consciousness of guilt

The phrase that forms the basis for this particular is derived from the following passage from R v Murphy [1965] VR 187 at 190-191 (Sholl J): "In the present instance, the applicant's case is that she pleaded guilty because of considerations irrelevant to the actual question of her guilt or innocence, and that she is in fact not guilty. Mr. Neesham, in his admirable address on her behalf, put it that it would be sufficient if the question of her guilt or innocence was an issuable matter. I should be disposed to agree that if she pleaded guilty through a misapprehension of the law, e.g. a misunderstanding of what she was pleading to, or what constituted the crime charged, or for some other reason which enabled one to say that her plea was not really attributable to a genuine consciousness of guilt, an issuable question of guilt would be sufficient to warrant the ordering of a new trial. … If I thought she was probably innocent, and that she pleaded guilty without reference to any consciousness of guilt, but because of a muddled idea that she would thereby keep the child, I should consider her conviction a miscarriage of justice such as this Court should correct by ordering a retrial. But after a careful examination of the depositions and the exhibits, and a full consideration of her evidence before this Court, I am not satisfied that she did not plead guilty partly if not wholly through a consciousness of guilt. The documentary evidence points very strongly to her guilt. It is not a case, therefore, where a miscarriage of justice has been shown. Rather, it seems to me, much the most probable explanation of her plea of guilty is that it was entered in the belief that by that course she would minimize as far as practicable the punishment for offences she knew she had committed."
In the present case, the applicant has not shown that she did not plead guilty through a consciousness of her guilt to an offence under s 193B(3). Indeed, she had been prepared, at committal (when she had been advised by different, unidentified lawyers) to plead guilty to that very offence and was pleased when, on 6 March 2020, the Crown put back to her the offer which she had made to resolve the matter pre-committal. In addition to the admissions made by the applicant in her ERISP and to Mr Awit, the draft Crown case statement was redolent with facts which indicated that the applicant was at least aware of the possibility that the baby formula which she was purchasing was stolen and decided to purchase it anyway.

[16]

Particular (3): alleged incompetence of the applicant's legal representatives

Mr Bonnici made several allegations against the applicant's legal representatives, including that Mr Shukoor failed to advise the applicant as to the strength of the Crown case against her and pressured her into agreeing, subject to the agreed statement of facts, to plead guilty.
None of the allegations has been made out. The criticisms made of the applicant's legal representatives were principally made against Mr Shukoor, although some allegations were also made against Mr Park for what occurred on 27 March 2020.
Mr Shukoor presented as an experienced, competent defence counsel who was alert to potential difficulties with representation (and wrote to Ms Chand to ensure that he was briefed only on behalf of the applicant because of the potential for conflict referred to above). He was conscientious and read the whole brief of evidence between 26 February 2020 (when he received the brief of evidence) and 6 March 2020, when he had been briefed to appear at the super call-over. His advice that the Crown case against the applicant for the offence contrary to s 193B(3) was strong has not been shown to be other than a correct assessment of the applicant's prospects. Indeed, so much is evident from the draft Crown case statement, as elucidated in Mr Shukoor's evidence.
Although he was not briefed to appear on 27 March 2020, Mr Shukoor was actively involved in the negotiations with the ODPP in the period from 6 March 2020 to 27 March 2020 about the statement of agreed facts, with a view to placing the most benign version of the facts before the Court for the proceedings on sentence. The ODPP responded to Mr Shukoor's suggestions on 23 March 2020. Mr Shukoor provided an amended draft to the ODPP which he also provided to Ms Chand, who forwarded it to the applicant via Rosemary's email (which was the only method ever used in the course of the matter to transmit written material to the applicant). Earlier drafts of the agreed facts provided by the ODPP included details of the amounts of baby formula which the ODPP said amounted to proceeds of crime which arose from the offending conduct. Mr Shukoor obtained a concession from the ODPP that not all of the baby formula in the applicant's possession amounted to the proceeds of crime. In these circumstances, it was no longer necessary for the applicant to establish, for the purposes of the agreed facts, which part of the cash found in her possession was legitimate. Therefore, invoices which tended to show that the applicant had engaged in some transactions with legitimate wholesalers who provided invoices recording the transactions were no longer required. Mr Shukoor gave evidence that the receipts that were provided to him by the applicant legitimised "next to nothing" having regard to the ambit of the criminality, as reflected by the amount of cash found in the applicant's home and the 4,000 tins of baby formula found at Jay's wife's residence.

[17]

Particular (4): allegation that the applicant did not fully understand or appreciate the nature and complexity of the charge and the essential elements [of the offence] to which the plea of guilty was entered

As set out above, I am satisfied that, on 6 March 2020, Mr Shukoor advised the applicant of the elements of the offence (reckless dealing with the proceeds of crime) which was the subject of the Crown offer at the super call-over. He also advised her of the strength of the Crown case in respect of that charge. There was a qualified Mandarin interpreter who translated what he was saying to her. Further, as referred to above, she had been prepared to plead guilty to that offence since before committal.
Further, the applicant had the opportunity to comment on the various drafts of the statement of facts in the days leading up to 27 March 2020 and to have them translated for her with the assistance of a Mandarin interpreter. This process was completed before she entered her plea to the offence under s 193B(3).

[18]

Particular (5): allegation that 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

The first part of this particular would appear to be a reiteration of the first particular. The second part would appear to be a reiteration of particulars (3) and (4) above. It is, accordingly, not necessary to address this particular further.

[19]

Particular (6): allegation that the prosecuting authorities induced the applicant to plead guilty by intimidation and/or by unfair and improper undue pressure

The principal basis for the allegation that the prosecuting authorities misconducted themselves is that Mr Alder offered to file a no bill in respect of the indictments presented against Rosemary and Jay as long as the applicant and her partner pleaded guilty to the s 193B(3) offence. Mr Bonnici argued that this led to the applicant being improperly influenced by concern for her children and agreeing to plead guilty to an offence to which she would otherwise have maintained her plea of not guilty. I understood him to submit that it was improper on the part of the prosecuting authorities to maintain the charge against Rosemary and Jay because the evidence against them was weak and that the effect of maintaining such charges was to bring inappropriate pressure to bear on the applicant to plead guilty. Mr Bonnici repeatedly submitted that the ODPP's position was that the only basis on which the charges against Rosemary and Jay would be withdrawn was if the applicant pleaded guilty. Although Mr Bonnici expressly eschewed an allegation of misconduct against the ODPP, he contended that the ODPP used the withdrawal of the charges against the children as a "bargaining chip" to induce the applicant to plead guilty.
The evidence does not support these submissions. The applicant said in her evidence that she had several motivations for pleading guilty: to save the considerable cost of a trial, to obtain the expected discount for the plea, to obtain a lesser sentence than if she was convicted after trial, and, most importantly, that if she did not plead to the lesser offence contrary to s 193B(3), she would have to go to trial for the offence contrary to s 193B(2), for which the maximum penalty was an additional five years' imprisonment. It may be that she was also motivated by concern for her children, a concern which she nominated in her evidence but did not communicate to her legal representatives. There is no basis for any suggestion that the applicant was induced to plead to a more serious offence than was appropriate in return for the withdrawal of the charges against her children. Indeed, to the contrary, she obtained the considerable benefit in the course of the plea negotiations at the super call-over of having the Crown offer to accept a plea to a lesser charge than the one for which she had been indicted. I accept Mr Shukoor's opinion that there was evidence which could have established the more serious charge to the requisite standard against the applicant contrary to s 193B(2) and that the evidence to establish that the applicant had committed an offence under s 193B(3) (being the lesser charge to which the Crown offered to accept a plea) was strong.

[20]

Particular (7): some of the actions and rulings of Hanley SC DCJ on 27 March 2020, were questionable and/or erroneous.

Mr Bonnici submitted that Hanley SC DCJ ought to have granted an adjournment on 27 March 2020 to give the applicant further time to consider the form of the draft agreed facts before she entered the plea on that date. While it would have been open to Judge Hanley to stand the matter over further, I discern no error in his Honour's decision either to list the matter for hearing or to take the plea on the fresh indictment. This decision had no adverse consequences for the applicant.
An accused person is, as referred to above, entitled to change a plea at any time from not guilty to guilty. On several occasions, Mr Bonnici referred to the applicant's change of plea to guilty as amounting to a "traversal" of her plea of not guilty when she was first arraigned in the District Court on 19 December 2019. This expression is inapt. A change of plea from not guilty to guilty is not a "traversal" of the plea; it constitutes the exercise of a right which can be exercised at will by an accused person. A change of plea from guilty to not guilty is, however, a traversal and cannot be done without leave of the court. A plea of guilty amounts to an admission of the elements of the offence and, as such, cannot be withdrawn at will.
Had the applicant not been prepared to sign the draft agreed statement of facts on 27 March 2020, she could have allowed the trial date to be set. She had been expressly advised by Mr Shukoor and Ms Chand that she was at liberty to defend the matter at trial and that she ought feel no pressure to plead guilty. Had his Honour granted the adjournment and had the applicant decided not to plead guilty, her trial date would have been inevitably delayed. His Honour was entitled to be concerned about setting a trial date if the plea was not taken.

[21]

Particular (8): allegation that the sentencing judge made questionable or erroneous comments on 24 June 2020

I do not accept that comments made by the sentencing judge on 24 June 2020, approximately three months after the applicant entered her plea to the fresh indictment on 27 March 2020, could bear on the plea, as opposed to the sentence imposed on 24 June 2020.

[22]

Conclusion

I am not satisfied that the applicant did not understand the nature of the charge, or did not intend by her plea to admit her guilt of the offence. To the contrary, the evidence adduced in this Court established that the applicant understood the distinction between an offence under ss 193B(2) and (3) and had been prepared, since at least pre-committal, to plead to a charge under s 193B(3). The first time the ODPP agreed to accept such a plea was on 6 March 2020 at the super call-over. On that day, after having received detailed and comprehensive advice from Mr Shukoor, she agreed in principle to accept the offer. There followed, up until 27 March 2020, detailed negotiations between the parties as to the agreed facts. Mr Bonnici has not been able to identify any basis on which the agreed facts were not as favourable to the applicant as they could have been or any remaining contention regarding the agreed facts which affected the validity or appropriateness of the plea.
For the reasons given above, I am not satisfied that a miscarriage of justice has occurred.

[23]

Proposed orders

For the reasons given above, I propose the following orders: 1. Refuse leave to appeal against the conviction.

[24]

Application for leave to appeal against sentence

I agree with the reasons of Bellew J on the sentencing appeal and with the orders which his Honour proposes.
BELLEW J: I have had the advantage of reading in draft the judgment of Adamson J.
In respect of the application for leave to appeal against conviction, I agree with the order that her Honour proposes, for the reasons that her Honour has given. There are, however, two observations that I wish to make.
The first concerns Mr Shukoor, who was cross-examined before this Court at considerable length. In the course of that cross-examination, many of the determinations made by Mr Shukoor in the course of advising and appearing for the applicant were subject to close scrutiny. For the reasons given by Adamson J in determining the application for leave to appeal against conviction, I am satisfied that nothing done by Mr Shukoor, on any asserted failure on his part, gave rise to a material irregularity, or a miscarriage of justice. For the reasons set out below, I have come to the same view in relation to those grounds advanced in support of the application for leave to appeal against sentence which questioned Mr Shukoor's competence. In arriving that those views, I have had regard to the fact that, having had the opportunity to observe him during the course of cross-examination, Mr Shukoor impressed me as counsel who, at all times, discharged his professional responsibilities to the applicant in a manner which was careful, conscientious and diligent.
The second concerns the submission, repeatedly advanced by counsel for the applicant in support of the application for leave to appeal against conviction, that the ODPP had induced the applicant to enter a plea of guilty in a manner which was intimidatory and/or unfair. Counsel advanced, as the primary basis of that submission, the circumstances surrounding the decision of the ODPP to discontinue the proceedings which had been brought against the applicant's children. Although in doing so, counsel specifically eschewed the suggestion that he was alleging prosecutorial misconduct, he did put to the Court that the ODPP had engaged in what he described as "prosecutorial impropriety". Any attempted distinction between prosecutorial misconduct and prosecutorial impropriety is, in my view, a distinction without a difference. More importantly, as Adamson J has pointed out, there was insufficient evidence to support the submission, however it might be labelled. The submission encompassed a most serious allegation. Advancing it in the absence of evidence to support it was, in my view, improper in itself. The submission should never have been made.

[25]

THE APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE

[26]

The facts of the offending

The essential facts of the offending found by the sentencing judge may be shortly summarised as follows.
A strike force was formed by the NSW State Crime Command to investigate the theft, and subsequent distribution, of baby formula. The thefts were identified as having been committed at various stores across Sydney, the Central Coast and Newcastle between about November 2017 and August 2018.
The applicant operated a business which she described as a "gift shop", and from which she sold baby formula and miscellaneous goods.
A number of the persons identified as being responsible for the thefts informed police that they had sold the stolen baby formula to the applicant and had, for that purpose, met with the applicant at various locations. Those locations included a rear lane behind the applicant's business premises in Bankstown, and suburban car parks, after hours.
An analysis of the applicant's mobile phone established that she had used the phone app known as "WeChat" to facilitate contact with persons in China, to whom she sold the stolen baby formula at a profit between November 2017 and August 2018.
It is noted that the applicant appeared for sentence with her partner (the co-offender) who had pleaded guilty to the same offence.

[27]

The applicant's subjective case

A report of Chafic Awit, Psychologist, dated 3 June 2020 was tendered before the sentencing judge. I draw the following summary of the applicant's background from that report, which was prepared following two interviews.
The applicant is 51 years of age and was born in China. She is the second eldest of six children and experienced a generally poor upbringing. She completed only 6 years of formal education, leaving school when she was 13 years of age. Thereafter, she was employed in various paid positions, including as a factory worker and a bank teller.
Following her separation from her partner, the applicant migrated to Australia with her two children in 2002. Her partner subsequently migrated to Australia around 2008, following which their relationship recommenced.
After arriving in Australia, the applicant worked spasmodically between 2002 and 2005, before commencing in a "pick/packing" role in a fruit factory where she remained until she suffered a wrist injury in 2012. She then established the business to which I previously referred, which closed down in September 2019 due to the proceedings brought against her.
The applicant told Mr Awit that she had commenced experiencing symptoms of anxiety and depression following her separation, and had been referred for psychological and psychiatric intervention. However, it was in fact not until 2018 that she commenced seeing a psychologist, Ms Ng. Ms Ng provided a short report in which she confirmed that the applicant had consulted her on 13 occasions between 26 October 2018 and 22 April 2020 for treatment of symptoms of depression, anxiety and stress. The applicant then commenced seeing a psychiatrist, Dr Chan, in 2019, who provided a short report in which he confirmed that the applicant had consulted him on 6 occasions between 16 May 2019 and 31 March 2020. Dr Chan diagnosed the applicant as suffering from major depression, and prescribed anti-depressant medication.
Mr Awit concluded that the results of the psychometric testing he had administered were consistent with the applicant suffering from extreme depression, and that her reported symptoms met the diagnostic criteria for generalised anxiety disorder and major depressive disorder.
There was no issue on sentence that the applicant was a person of prior good character. A number of references tendered to the sentencing judge attested to her work in her community, and to her good character generally. The applicant did not give evidence in her sentence proceedings, but provided an unsworn statement to the sentencing judge in which she expressed her remorse for the offending.

[28]

THE GROUNDS OF APPEAL

I have set out the grounds of appeal in the precise terms in which they were drafted.

[29]

Ground 10 - The Applicant's former Defence Counsel 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.

[30]

The evidence

Mr Awit's report included the following: [The applicant] advised that she never participated in psychological intervention, until her arrest. She advised that she had always felt that she could handle her symptoms, however, after all the events unfolded after her arrest, [the applicant] advised that her symptoms increased significantly and she found herself not being able to regulate her emotions at all. [The applicant] advised that she use [sic] to believe that being depressed and anxious was normal, and didn't know help was available. [The applicant] advised [that] in 2018, she was suffering from chronic headaches. She advised that she opened up to her General Practitioner at the time. She advised that she opened up about the stress that she has been through and symptoms, and had been suffering from suicidal ideation. [The applicant] advised that her general practitioner recommended that she seek psychological intervention. [The applicant] advised that it felt unnatural to see someone in a psychological capacity and open up about her personal life, but in October 2018, she accepted this was the pathway she had to go down and has been seeing a Psychologist ever since. She further advised that she has been seeing a Psychiatrist since 2019.
Having set out his diagnoses, Mr Awit continued: The writer is of the professional opinion that there is a psychological nexus between [the applicant's] underlying Psychological condition and the offence before the court. The writer is of the professional opinion that this psychological link stems from [the applicant's] ongoing impaired decision making ability. [The applicant] presents with a long history of Anxiety and Depression symptoms, as well an ongoing physical condition. As indicated by research, there is a strong correlation between Anxiety, Depression, and impaired decision-making. These conditions can affect a sufferer in many aspects of their life. The ability of the sufferer to control the bombardment of negative thoughts/emotions is significantly diminished, and this can often impact their decision-making ability by leading to poorly evaluated decisions.
Mr Awit emphasised that his opinions were based on the applicant's reported history of symptoms, the results of psychometric testing, his analysis of the applicant's offending behaviour, and the application of relevant diagnostic criteria.

[31]

The sentence proceedings

In the course of oral submissions in the sentence proceedings, the Crown took issue with Mr Awit's opinion as to the existence of a causal nexus between the applicant's mental state and her offending. The Crown submitted that in light of the sophisticated nature of the offending, such opinion was deserving of little weight.
In written submissions provided to the sentencing judge, Mr Shukoor advanced the proposition that there was such a causal nexus. In a lengthy exchange with Mr Shukoor in the course of the sentence proceedings, her Honour expressed a preliminary view that there was nothing in the report of Mr Awit to support a conclusion that the applicant was suffering from symptoms of mental illness at the time of her offending. The exchange ended with Mr Shukoor making the following submission to her Honour: Yes, again, I say her mental health is most relevant to what it means for any sentence now, not necessarily that she had that ideation or that I could seek to even prove it on the balance of probabilities at the relevant time.

[32]

The reasons of the sentencing judge

The sentencing judge reached the following conclusions as to the applicant's mental health: Mr Awit expressed the professional opinion that there is a psychological nexus between [the applicant's] underlying psychological condition and the offence before the Court. He said that she had ongoing impaired decision-making ability and that the ability to control the bombardment of negative thoughts and emotions was significant and can often impact on the decision-making ability leading to poorly evaluated decisions. Mr Awit was of the opinion that [the applicant] was [at] a low risk of reoffending. He had made recommendations as to a treatment plan for [the applicant]. [The applicant] has been under the treatment of a psychiatrist, Dr Charles Chan, since May 2019. His diagnosis is that the [applicant] suffers from Major Depression. Given the fact that Dr Chan is a psychiatrist and he has seen [the applicant] on multiple occasions I accept his as the appropriate diagnosis. The basis for Mr Awit making a diagnosis at the time of the offence is a diagnostic questionnaire completed more than 20 months post the period of the end of the offence. There is no objective evidence, no history of symptoms at about that time, no diagnosis or seeking treatment at that time. [The applicant] has chosen not to give evidence. I do not accept that it has been established that [the applicant] was suffering from a mental illness at the time of the offence.

[33]

Submissions of the applicant

The essence of counsel's submission was that a miscarriage of justice had arisen as a consequence of Mr Shukoor's failure, in the face of her Honour's indications that she was having some difficulty in accepting Mr Awit's opinion, to seek an adjournment of the sentence proceedings in order to obtain further evidence.
Counsel for the applicant submitted, in particular, that "there should have been more fully and properly obtained instructions and investigation on this mental health and psychological health issue" on the part of Mr Shukoor, because the applicant's mental state "did not arise overnight".

[34]

Submissions of the Crown

The Crown submitted that there was nothing to suggest that the sentencing judge had been deprived of relevant evidence in respect of any aspect of the applicant's subjective case. It was submitted that there was simply no evidence that the applicant had been suffering from any mental health issue(s) in the period leading up to, or at the time of, the offending. It was further submitted that counsel's reference to the applicant's mental state not having arisen "overnight" was an assertion which was entirely unsupported by the evidence.

[35]

Consideration

As is the case with a number of the grounds relied upon in support of the application for leave to appeal against sentence, this ground does not assert an error on the part of the sentencing judge. Rather, it asserts incompetence on the part of Mr Shukoor in failing to seek an adjournment to obtain further evidence once it became clear that her Honour was having some difficulty accepting Mr Awit's opinion.
As a general proposition, a party to proceedings is bound by the conduct of his or her counsel, who has a wide discretion as to the manner in which the proceedings are conducted: R v Birks (1990) 19 NSWLR 677; TKWJ v The Queen (2002) 212 CLR 124; [2002] HCA 46. In order to succeed on any ground which asserts incompetence on the part of Mr Shukoor arising from his conduct of the sentence proceedings, the applicant must establish that something done by Mr Shukoor, or something that he omitted to do, has given rise to a miscarriage of justice. This requires consideration of: 1. what did or did not occur in the sentence proceedings; 2. whether there was some material irregularity; and 3. whether there is a significant possibility that any of Mr Shukoor's act(s) or omission(s) about which complaint is made affected the outcome of the proceedings: Tsiakas v R [2015] NSWCCA 187 at [42] per Leeming JA.
Put simply, what occurred in the present case was that the sentencing judge raised an issue concerning what she considered to be the reliability of Mr Awit's opinion as to the existence of a causal connection between the applicant's mental state and her offending. It is obviously not uncommon for a sentencing judge to raise issues which he or she considers arise from the evidence, so as to give counsel the opportunity to address them.
In the present case, the applicant did not suggest to Mr Awit that she was suffering from any symptoms of any mental illness at the time of the offending. There was no evidence that the applicant had raised any mental health issue with any treating health professional prior to her arrest. The evidence established that the applicant had not been referred for any psychological or psychiatric treatment until after the offending had ceased. She had also told Mr Awit that she had "always felt that she could handle her symptoms". In all of these circumstances, the fact that her Honour raised an issue regarding the veracity of Mr Awit's opinion is entirely unsurprising.

[36]

Ground 11 - The Applicant's former defence counsel in his written submissions inappropriately and incorrectly elevated the applicant's part in her overall offending.

[37]

The sentence proceedings

The written submissions provided by Mr Shukoor to the sentencing judge contained the following under the heading "Assessing Objective Gravity": [10] The breadth of conduct captured by proceeds of crime related offences is substantial, encompassing a wide range of criminal activity, including for example funds associated with drug activity or the supply of firearms, through to sophisticated "white-collar" or large scale fraud type offending. … [15] Whilst conceding the offending in this matter is objectively very serious, it is difficult, given the dissimilarity of potential criminal conduct captured by Section 193B(3), to strictly place this offending on a continuum of objective gravity. Given the distinct difficulty in determining what might even constitute a "mid-range" offence for the purpose of Section 193B(3) in the first instance, it is not conceded that the offending in this matter falls "above the middle of the range", as submitted in the learner prosecutor's written submissions.
The submissions went on to cite, in a comprehensive fashion, a series of factors which were relevant to her Honour's assessment of the objective seriousness of the applicant's offending. As might be expected from any counsel adopting a balanced and responsible approach to such an issue, some of those factors assisted the applicant, whilst others did not. In addressing aggravating factors, Mr Shukoor's submissions accepted that the offending was planned and organised.

[38]

The reasons of the sentencing judge

The sentencing judge found that the objective seriousness of the offending fell above the mid-range, and that the applicant's level of recklessness fell at the upper range. In reaching those findings, her Honour had regard to (inter alia) the fact that the applicant: 1. liaised with those responsible for the theft of the baby formula; 2. engaged in multiple transactions, in the course of which she received quantities of the stolen baby formula from at least six separate suppliers; 3. had, on one occasion, selected a meeting place, the location of which was clearly designed to reduce the likelihood of the exchange of the stolen baby formula being seen by others; 4. was responsible for the on-selling of the baby formula to persons in China at a profit; 5. engaged in the offending over an extended period of about nine months; and 6. caused $394,000.00 to be deposited into accounts controlled by the co-offender.

[39]

Submissions of the applicant

Many of the submissions advanced by counsel for the applicant in support of this ground repeated those advanced in support of particular (1) of the application for leave to appeal against conviction, which raised an issue as to the terms of the indictment. In light of the conclusion reached in respect of that particular, those submissions cannot be accepted.
However, in support of this ground counsel also took particular issue with Mr Shukoor's concession before the sentencing judge that the offending was planned and organised. It was submitted that such a proposition had a tendency to convey the suggestion that the applicant had knowledge of the fact that the goods were proceeds of crime, as opposed to being reckless as to that fact. Counsel went so far as to submit that on the whole of the evidence, aspects of the applicant's offending were properly regarded as "spontaneous" and "ad hoc".

[40]

Submissions of the Crown

The Crown submitted that the concession that the offending was organised and planned was entirely appropriate in light of the evidence. The Crown submitted that this was an obvious concession to make given (inter alia) the circumstances in which the applicant had met with those responsible for the thefts for the purposes of receiving the stolen baby formula.

[41]

Consideration

In my view, no part of any submission advanced by Mr Shukoor, be it orally or in writing, had any tendency whatsoever to convey a suggestion that the applicant had acted with knowledge rather than recklessness. Indeed, Mr Shukoor's written submissions specifically drew a distinction between the two states of mind. Moreover, on the entirety of the evidence, Mr Shukoor's concession that the offending was entirely appropriate. The fact that the applicant engaged in a sustained course of offending over a period of nine months could not, as counsel for the applicant submitted, be regarded in any sense as conduct which was spontaneous or ad hoc.
It follows that no material irregularity, and no miscarriage of justice, have arisen as a consequence of anything done or not done by Mr Shukoor in terms of his assessment of, and submissions as to, the seriousness of the applicant's offending.
For these reasons, this ground is not made out.

[42]

Ground 12 - 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.

[43]

The evidence

In her unsworn statement tendered to the sentencing judge the applicant said the following: In particular, I am concerned that if I go in prison I will not be able see my grandchildren grow up, as well as visit and take care of my frail parents who are overseas. Moreover, I can not [sic] imagine how my life would be if I get deported, in which case that I will have to separate [sic] from my children and my grandsons who are living in Australian [sic], have to leave the beautiful country where I have been living for 17 years and will be extremely ashamed meeting all the family relatives and friends in China.
Other than what was said in that statement, there was no other reference in the evidence, or in the sentence proceedings, to the possibility of the applicant being deported as a consequence of any penalty imposed by the Court.
In her affidavit of 21 June 2021 which was read on the application for leave to appeal against sentence, the applicant said: [41] I was never told by my lawyers about the effect that a conviction would have on my visa status. I included a comment in my letter of apology about the visa, as a friend mentioned that if I was found guilty my visa would be cancelled. [42] My visa has now been cancelled, despite the fact that my adult children are Australian Citizens.
There is no dispute 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.
The evidence of Mr Shukoor was that he understood that his instructing solicitor had referred the applicant to a lawyer experienced in migration law, in order to allow her to obtain advice in relation to the potential ramifications of the proceedings on the continuation of her visa. Mr Shukoor went to some lengths to point out that even if the applicant had asked him for advice in relation to this issue, he would have deferred to any advice provided to her from an appropriately qualified migration lawyer or migration agent. He went on to say that in circumstances where any determination of deportation would necessarily depend on a variety of factors, he did not consider it permissible to ask the sentencing judge to structure a sentence which would alleviate the risk of deportation. None of this evidence was challenged.

[44]

Submissions of the applicant

Counsel for the applicant submitted that the applicant's likely deportation upon her release from custody constituted a "real and exceptional hardship" which had not been drawn to the attention of the sentencing judge by Mr Shukoor. Although not expressly stated, inherent in this submission was the proposition that Mr Shukoor's omission to do so gave rise to a miscarriage of justice.

[45]

Submissions of the Crown

Put simply, the Crown submitted, by reference to authority, that the question of deportation was irrelevant on sentence.

[46]

Consideration

No aspect of Mr Shukoor's approach to the issue of the applicant's deportation gives rise to a material irregularity or a miscarriage of justice. Moreover, the submissions of counsel for the applicant are contrary to authority. Even if the applicant's deportation was considered inevitable, that was irrelevant to the sentencing exercise. Had her Honour taken it into account, she would have been in error: R v Van Hong Pham [2005] NSWCCA 94 at [13] - [14] per Wood CJ at CL.
For these reasons, this ground is not made out.

[47]

Ground 13 - 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 3 following statements in that regard: 1. As stated in the report of the psychologist; 2. As stated in the Assessment Report from Corrective Services; 3. As said to the NSW Police in essence that she had no knowledge that the baby powder tins were stolen until told so by the investigating Police.

[48]

The evidence

As to ground (13)(i) Mr Awit, stated the following: [The applicant] advised that she never asked where the product came from, and was just grateful that she did not have to go buy it in the morning or late at night herself. [The applicant] 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 happy that she did not have to go herself to get the products. [The applicant] further advised that she did not give much thought to where the products were picked up from.
As to ground (13)(ii), the Sentence Assessment Report included the following: [The applicant] claimed that she was unaware that the products she was buying were stolen. … [The applicant] acknowledged that in hindsight, she should have questioned the products origins and has expressed regret for participating in the unlawful purchase of the product. … [The applicant] claimed that she did not realise the products were stolen until she was contacted by Police.
As to ground 13(3)(iii) the applicant's record of interview formed no part of the evidence which was tendered by the Crown before the sentencing judge. The agreed statement of facts contained the following references to that interview: [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).

[49]

Submissions of the applicant

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.

[50]

Submissions of the Crown

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.

[51]

Consideration

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

[52]

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.

[53]

The findings of the sentencing judge

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

[54]

Submissions of the applicant

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.

[55]

Submissions of the Crown

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.

[56]

Consideration

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

[57]

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

[58]

The reasons of the sentencing judge

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.
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.
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.
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.
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.
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.

[59]

Submissions of the applicant

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".

[60]

Submissions of the Crown

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

[61]

Consideration

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

[62]

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

[63]

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

These grounds may be conveniently dealt with together.

[64]

The sentence proceedings

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).

[65]

Submissions of the applicant

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

[66]

Submissions of the Crown

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.
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.
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.

[67]

The parity issue

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

[68]

The discount applied to the plea of guilty

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.
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.
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.
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.
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).
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.

[69]

Re-sentence

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

[70]

ORDERS

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.

[71]

Endnotes

As to the sufficiency of "possibility", see [6]-[14] below.
(1990) 19 NSWLR 467 at 475 (Hunt J; Finlay J and Allen J agreeing); 47 A Crim R 306.
(1955) 56 SR (NSW) 25 at 33-34 (Street CJ, Roper CJ in Eq and Herron J).
[1957] 2 QB 396 at 399 (Byrne J for Byrne, Slade and Barry JJ).
(2005) 224 CLR 262; [2005] HCA 80 ("Banditt").
Banditt at 275 [33] (Gummow, Hayne and Heydon JJ).
Banditt at 275 [35] (Gummow, Hayne and Heydon JJ), citing JC Smith, Smith & Hogan: Criminal Law (10th ed, 2002, LexisNexis Butterworths) at 471.
Banditt at 276 [39] (Gummow, Hayne and Heydon JJ).
(2011) 81 NSWLR 119; [2011] NSWCCA 93 ("Blackwell").
[1997] 2 VR 585 at 592 (Hayne JA and Crockett AJA), cf 586 (Phillips CJ), where the standard of "probability" is rejected.
Blackwell at 134 [78] (Beazley JA; James J and Hall J agreeing).
(1995) 184 CLR 132 at 141-2 (Brennan, Toohey and McHugh JJ); [1995] HCA 41 ("Meissner").
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).
(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).
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).

[72]

Amendments 03 August 2021 - "appropriate" replaced by "inappropriate" - [307] 03 August 2021 - "Adler" replaced by "Alder" - [127], [137], [208], [211] DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 03 August 2021

Parties

Applicant/Plaintiff:

Respondent/Defendant:

Legislation Cited (11)

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

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

Legal Profession Uniform Law Australian Solicitors' Conduct Rules 2015(NSW)

Migration Amendment (Character and General Visa Cancellation) Act 2014(Cth)

Crimes (Sentencing Procedure) Act 1999(NSW)

Crimes Act 1900(NSW)

Criminal Appeal Act 1912(NSW)

Criminal Code Act 1995(Cth)

Criminal Procedure Act 1986(NSW)

Evidence Act 1995(NSW)

Migration Act 1958(Cth)

Cases Cited (73)

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)

Cited By (10)

Tarragal Glen Retirement Village II Pty Ltd and Errol Investments Pty Ltd v De Carli

The Crown case statement, a draft of which was annexed to Mr Shukoor's affidavit, summarised the Crown case, which comprised the following evidence: 1. evidence of 10 rogue suppliers (referred to above) as to the sale of stolen baby formula to the applicant and the circumstances of the sales; 2. surveillance conducted by police on 22 February 2018, 23 February 2018, 8 August 2018, 9 August 2018 and 22 August 2018 (being the day of the applicant's arrest); 3. call charge records and telephone intercepts which indicated that the applicant was in contact with others who had been convicted, or suspected, of offences related to stealing baby formula, dental products, vitamins and honey; 4. evidence obtained from the execution of search warrants on: 1. the applicant's home address, where police located $215,450 in cash, documents and extensive business records relating to the export of items to China; 2. Jay's wife's nearby property, where police located more than 4,000 tins of baby formula valued at $120,000; and 3. the applicant's business address (One Stop Nature Store) where multiple boxes of baby formula were found; 1. banking records of the applicant and her family which showed that, between November 2017 and August 2018, $394,000 was deposited into the applicant's partner's bank account; $283,000 was deposited into Jay's bank account and $1,323,321.70 was deposited into Rosemary's bank account; 2. the applicant's taxation records which showed that she declared a taxable income of $33,943 for the 2017 financial year; 3. evidence of wholesalers from whom the applicant purchased baby formula prior to November 2017 who deposed that she had not purchased any baby formula from them in the period between November 2017 and 4 September 2018 (after her arrest); 4. evidence that from November 2017 to 4 September 2018 the applicant sent approximately 8,000 packages of baby formula to China, weighing over 25,000kg and that thousands of transactions were conducted over the WeChat application; 5. sales data from Coles and Woolworths which recorded a decrease in losses (stolen or unaccounted for goods) of baby formula of 35% between the period 1 November 2017 to 27 August 2018 and 3 September 2018 to 31 December 2018; and 6. the applicant's ERISP (referred to above).

Mr Shukoor confirmed the matters set out above in a lengthy email sent to Ms Chand on 6 March 2020 at 4.37pm. He explained in oral evidence in this Court that it was his usual practice to send a detailed email to his solicitors, which served the same purpose as a file note. In Mr Shukoor's email, he said: "I confirm my appearance, instructed by Ms S Chand of your office, on 6 March 2020 at the Parramatta District Court in relation to the matter of R v L Ke. The matter was listed for call-over before his Honour District Court Judge Hanley as part of the 'super call-over' list. Ms Capili of your office appeared for Y Ke, and Mr Khan appeared for both X Ke and J Ke. In the morning a conference was held with all co-accused and representatives present. During conference the super call-over process was explained. I further advised all co-accused in relation to the reason why each required a separate legal representative, that being primarily to protect their individual interests. During conference each co-accused expressed a desire to participate in the super call-over process with a view of canvassing whether the Office of the DPP was willing to make an offer better than that which they had made at the committal level. I understand an offer had previously been made at the committal level which had been rejected by all members of the family. I understand the primary basis for that rejection was that the Office of the DPP, at the committal level, required a plea of guilty to 'knowingly deal with proceeds of crime' from [the applicant] as opposed to the lesser charge of 'recklessly deal with proceeds of crime', to which she was willing to plead guilty at the committal level. I understand that at the committal level the family had decided to reject the original plea offer as they were uncomfortable with their mother, [the applicant], pleading to the more serious variant of the charge. Mr Adler [sic], Deputy Director, appeared on behalf of the prosecution at the super call-over. After some discussion in the morning he indicated that he would be willing to accept a plea of guilty to 'recklessly dealing with proceeds of crime' from Ms Lie Ke. He further advised that if both Y Ke and L Ke both pleaded guilty to one count of 'recklessly deal with proceeds of crime' he would also 'no bill' the proceedings against X Ke and J Ke. After the offer was made, each co-accused was conferenced by their respective lawyers and instructions sought. During conference with Ms L Ke, I advised her in relation to the nature of the brief of evidence including strengths and weaknesses in the prosecution case, the maximum penalties applicable, her right to jury trial, the differences between knowledge and recklessness, and the statutory utilitarian discount scheme, amongst other matters. During conference Ms L Ke expressed a desire to plead guilty to the less serious charge offered by Mr Adler [sic]. I understand Mr Y Ke, during the course of the morning, separately instructed Ms Capili of his desire to plead guilty to 'recklessly deal with proceeds of crime' in reply to the latest offer made by the prosecution. Accordingly, the matter was mentioned again before Hanley DCJ and the Court informed me of the following: 1. An in principle agreement had been reached in relation to the indictment (i.e. both L Ke and Y Ke would each plead guilty to one count of 'recklessly deal with proceeds of crime', and proceedings would be discontinued against X Ke and J Ke); 2. The parties required further time to negotiate the detailed Agreed Fact Sheet; and 3. Defence required time to further consider related Crime Commission proceedings before pleas of guilty would be formally entered. Accordingly, the matter was adjourned for mention until 27 March 2020 at the Parramatta District Court and bail was continued in relation to all co-accused. In the intervening period Ms Chand and I should further consider the Agreed Fact Sheet, and furthermore, should liaise with the Crime Commission to ascertain their final intentions in relation to confiscations proceedings." [Emphasis added.]

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):

The ultimate question for the Court was whether the applicant had established a miscarriage of justice: at [185].
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].
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.
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].
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].
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].
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:
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.
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.
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:
Counsel who appeared for the applicant on sentence discharged his responsibilities in a careful, conscientious and diligent manner: at [223].
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):
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.
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].
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].
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.
No statement attributed to the applicant had the effect of traversing her plea of guilty: at [282].
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].
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.
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.
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:
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.
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].
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.
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.
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].

THE SENTENCE APPEAL

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.
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."
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)."
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]
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]
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.
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.
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.
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]
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.
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.
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): 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.
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.
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".
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.
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.
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.
On that basis, the applicant was entitled to a discount of 25%, not the 10% she was allowed.
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.
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."
To similar effect, R A Hulme J said: [51] "[124] I reiterate what I said in Martin v R (at [96]) about the High Court in Kentwell v The Queen not expressly dealing with error in sentencing that only affects a discrete component and where there is no conceivable impact upon the overall sentence. I gave examples, such as an error in the commencement date of the sentence; the proportion of the sentence represented by the non-parole period; or the extent of the discount for a plea of guilty or assistance to authorities. The present case is of the latter type but it does not fall within the type of case I was speaking about in Martin v R because, as I have indicated above, it is complicated by virtue of the fact that the primary judge was required to impose sentences for multiple offences and that brought into play other aspects of the sentencing discretion. I gave other examples in Martin v R (at [98]): an error in failing to take into account a period of pre-sentence custody by backdating the sentence; or post-dating a sentence to an extent that was beyond the statutory power to do so. [125] Having said all of this, I have come to the conclusion that the applicant's submissions as to the application of Kentwell v The Queen should be accepted. I maintain misgivings as to whether what was said by the plurality was contemplated and intended to apply to each and every error that may occur in the sentencing process (aside from a "legal error" that is clearly inconsequential such as the example given at [42]), no matter how minor and confined to an easily identifiable component of the sentence they may be. But on their face, the words used in [42] of the judgment are not in any sense vague or ambiguous. It is the role of this Court to faithfully apply them and not to qualify or quarantine their application; that is a matter for the High Court itself if a litigant seeks to persuade it to do so: Ravenor Overseas Inc v Readhead (1998) 72 ALJR 671; [1998] HCA 17 at [3]."
However, the Court also held that it would not be necessary to re-exercise the sentencing discretion in the case of arithmetical errors, such as, for example, an arithmetical error in the calculation of the date of commencement, end date or expiration of non-parole period, or in the calculation of the effect of a discount for a plea or assistance to authorities, the extent of which was properly determined. The Chief Justice said: [52] "That is not to say that there will not be occasions when, notwithstanding error, it is not necessary to re-exercise the sentencing discretion. It will not be necessary where, for example, an arithmetical error occurred in the calculation of the commencement and end date of the sentence or the date of the expiration of a non-parole period arrived at in the proper exercise of discretion or, for example, an error in the calculation of the effect of a discount for a plea or assistance to the authorities, where the extent of the discount to be allowed was reached in accordance with proper principles."
This approach was followed in Refaieh v R, in which the Court said: [53] "As the High Court observed in Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 citation at [42] there will be some cases where error can be corrected without the need to undertake the sentencing discretion afresh. The correction of an arithmetic error in the commencement date of a sentence falls within this category: Lehn v R (2016) 93 NSWLR 205; [2016] NSWCCA 255 at [72]."
The distinction appears to be that where the error involves a miscarriage of the sentencing discretion in any respect, this Court must re-exercise the discretion anew; but where the error is merely one of calculation, in the nature of a slip, which could not have affected the sentence in any other way, it can merely correct the slip. One such instance is, as the Chief Justice said in Lehn, "an error in the calculation of the effect of a discount for a plea …, where the extent of the discount to be allowed was reached in accordance with proper principles".
That approach could not be taken in Lehn, because the extent of the discount was itself (under the then regime) a matter for discretionary judgment, and in the "instinctive synthesis" process interacted with other relevant considerations.
The present case is different. As I have said, the error did not involve any miscarriage of discretion. Moreover, there is now no room for any discretion about the applicable discount, and it does not interact with other sentencing considerations. In those circumstances, the applicable discount cannot, in the "instinctive synthesis" process, inform the sentence which would otherwise be imposed. In those circumstances, I do not consider that this Court is obliged to re-exercise the sentencing discretion; it could proceed to correct the error, by substituting the mandatory discount of 25% for the 10% allowed by her Honour in respect of both the head sentence and the non-parole period. The result would be a term of imprisonment of one year, ten months, and fifteen days, with a non-parole period of fifteen months, commencing on 24 June 2020 and expiring on 23 September 2021.
Nonetheless, Bellew J has proceeded to re-exercise the sentencing discretion, albeit adopting the sentencing judge's findings as to the objective seriousness of the offending and the level of the applicant's recklessness, and her Honour's observations and findings as to the applicant's subjective case, as well as the finding of "special circumstances". I would if anything be more optimistic than her Honour as to the applicant's prospects of rehabilitation, which I would regard as excellent. The outcome of that exercise is slightly more favourable to the applicant than that which would result from the "mere adjustment" approach which I consider open, but not mandatory. I therefore agree with Bellew J's approach to re-sentencing.