Passaris v R

Validity of the Compulsory Conference Certificate 25An examination of the facts as established in evidence before the sentencing judge, in my opinion, leads to the conclusion that the statutory requirements for a Compulsory Conference Certificate were not satisfied. 26The legislative provisions of the Conferencing Trial Act 2008 establish a statutory process which is to be followed following a compulsory conference held under the provisions of the Act. That process includes a certificate that complies with the provisions of the Act. A "certificate", by its ordinary dictionary meaning, means a document that certifies or gives assurance or attests to particular facts. By s 12(1) of the Conferencing Trial Act , the prosecution and a legal representative who acted on the accused person's behalf at the conference "... must complete a Compulsory Conference Certificate...". Furthermore, s 12(2) requires that the Compulsory Conference Certificate "... is to be signed by the prosecution and the accused person before it is filed in accordance with subsection (4)" (my emphasis). 27The provisions of both s 12(1) and (2) specify mandatory requirements for a Certificate under s 12. A certificate must be both completed and signed by the prosecution and the accused person (or the legal representative who acted on the accused person's behalf). 28The parties in the present proceedings put their submissions upon the basis that the document in evidence entitled "Outcome of Local Court Conference" was a "compulsory certificate" under s 12 of the Act. The document stated that, as a result of the conference held on 14 May 2009, "... the following is certified...". There then is set out four paragraphs which purport to address the matters specified in s 12(3). 29The Certificate, "Outcome of Local Court Conference", in the present case was, on the evidence, completed and signed by the prosecution only. The Certificate (p 2) was executed by the Solicitor for Public Prosecutions (referred by name as Shiva Rich) dated 20 May 2009. A copy of the Certificate in evidence before the sentencing judge was not executed, (signed) or dated by the "Legal Representative for the Accused ". Accordingly, insofar as the document purported to be a Conference Certificate, it accordingly failed to comply with s 12(1) and (2) in that it was not completed or signed as specified. 30I note that the evidence before the sentencing judge included a copy of a facsimile sent by Shiva Rich on 20 May 2009 on the letterhead of the Office of the Director of Public Prosecutions to the legal representative for the accused. The facsimile, in part, stated: "Please find attached a copy of the Case Conference Outcome Form. I will have a copy attached to the file at court tomorrow. Could you please sign the form at court so that it can be filed by the DPP solicitor. If there are any issues, please contact me today to discuss ..." 31There is no evidence of any response by the legal representative for the accused to the facsimile. There is no evidence that the legal representative for the applicant ever signed the "Certificate" or did anything in relation to completing the document. On that basis, there was no evidence before the sentencing judge of a certification as required by the statute. 32The terms of the Conferencing Trial Act which specifies detailed requirements for a Compulsory Conference (s 6) the completion and signing of a Compulsory Conference Certificate (s 12), in my opinion, evidence a legislative intention that the above statutory requirements form a fundamental and important part of the conferencing scheme established by the Act. The specificity of the requirements in the Act concerning the conduct and certification of compulsory conferences conducted under it, in my opinion, require strict compliance. There is, as discussed below, good reason for that requirement. 33Strict compliance with the provisions of s 12 is significant when the operation of s 17, Discount for Guilty Plea is taken into account. The express provisions of s 17(4) and (5) depend, inter alia, for their operation upon the existence of a valid Compulsory Conference Certificate. A complying Conference Certificate may under s 17 form the basis for a finding that "substantial grounds" exist as alleged in the present case under s 17(5)(b). Such a finding, in turn, has the capacity to produce a benefit for an offender who is to be sentenced in terms of the discount for a guilty plea. However, s 17(6) provides that: "6. The burden of establishing the matters referred to in subsection (5) lies on the offender and must be proved on the balance of probabilities." 34The deficiencies in the "Certificate" as indicated by the evidence in the present case involving a failure to meet the requirements of s 12(1) and (2) leads to the consequence, in my opinion, that the applicant failed to discharge the burden of proving that there existed in fact a Compulsory Conference Certificate in accordance with the provisions of the Act.

The applicant's offer to plead guilty to the alternative charge was not an unequivocal one 35There is, in my opinion, a further basis upon which the applicant was not entitled to rely upon the "Conference Certificate", even if it could be held that it was a valid Certificate. 36It is clear on the evidence that the only dispute between the prosecution and the applicant at the conference related, not to the question of an offer to plead guilty to the alternative charge, but solely to the applicant's then insistence upon the plea being accepted on the basis of a statement of facts that he wished to reply upon, but which the Crown refused to accept as one that appropriately or properly recorded the factual substratum for sentencing purposes. 37In the Disclosure Certificate prepared by the Office of the Director of Public Prosecutions dated 29 April 2009 and signed on behalf of the Director of Public Prosecutions, it was stated: "B. The Prosecution will accept a plea of guilty to the following offences in full satisfaction on the basis of the draft facts attached. H/36656286/4 - Malicious inflict GBH with intent" 38The "Outcome of Local Court Conference" document (the Certificate), paragraphs 2 and 3, recorded the following: "2. The Accused person has offered to plead guilty to the following alternative charges not listed in the Prosecution Disclosure Certificate in full satisfaction of the prosecution case: (where accused offers to plead to different charges to those offered by the Prosecution - list charges Accused has offered) H/36656286/1 - Recklessly cause GBH (Sec.35). 3. The Director of Public Prosecutions has rejected the offer of plea of guilty to the offence listed above, offered by the Accused Person, and intended to be in full satisfaction of the prosecution case..." 39In paragraph 4 of the document, the "Charge Details" are set out which included an offence under s 35 and the alternative offence under s 33. 40The discussion between counsel and the sentencing judge as recorded in the transcript of 23 April 2010 (pp 3 - 4) made it clear that the offer to plead guilty to the alternative offence was rejected by the Crown by reason of the "set of facts" put forward on behalf of the applicant and for that reason only. The Crown stated (p 4): "McKAY: And the facts were not acceptable to the prosecution." 41When counsel referred to the fact that the Crown would only take a plea to a charge under s 33, the sentencing judge observed that that related to the question of the statement of facts, his Honour stating: "HIS HONOUR: Yes, that's because of the facts. That's why the Crown said that." 42The legal representative appearing for the accused on that occasion did not suggest otherwise and appeared to accept what the Crown had indicated was the basis for the rejection of the applicant's offer, stating: "WILLIAMS: Well, the Crown says that, I wasn't party to those negotiations." 43The case before this Court has been argued upon the basis that it was by reason only of the fact that the applicant was requiring agreement to a statement of facts that the Crown considered to be unacceptable that led it to reject the applicant's offer. The evidence indicates that the accused offered to plead guilty to the alternative charge and the Crown was prepared to accept the offer but for one matter. The disagreement, as I have stated, related to the applicant's requirement to accept the offer upon the basis of the statement of facts he put forward or that was put forward on his behalf. 44In the particular circumstances of this case, I do not consider that it can be said that the Crown refused to accept "an offer" by the offender to plead guilty to the alternative offence. I will discuss below what may constitute an offer to enter a guilty plea which is capable of acceptance. 45It cannot, in my opinion, be said that "... an offer by the offender to plead guilty to the alternative offence set out in the Compulsory Conference Certificate... was refused by the prosecutor " in the circumstances of this case in which the prosecution, was clearly prepared to accept a guilty plea to the alternative count on an appropriate basis. It was the offender's linking of the plea to the statement of facts he required which resulted in the refusal by the prosecutor to accept the plea but only on that basis. 46In circumstances where a prosecutor has a duty to the Court (in this case, the District Court) to ensure that a proper factual basis for the plea is stated by agreement and/or otherwise proved, I do not consider that this is a case in which it can be said that the "offer" was one capable of being refused or rejected by the prosecutor for the purposes of s 17(5)(b). In the history of this case, the prosecutor's refusal related and related only to the terms of what could be seen to be an offer put on behalf of the accused, namely, that there be a plea of guilty to the alternative charge on the facts framed by him which were unacceptable to the Crown. 47In that respect, the expression "an offer" in the phrase in s 17(5), "An offer by the offender to plead guilty to an alternative offence" must be considered by reference to the subject matter of an offer, namely, a plea of guilty to a criminal offence. For that purpose, guidance may be taken from relevant authority. 48A plea of guilty is usually taken as an admission of all necessary ingredients of the offence charged: see Maxwell v The Queen [1996] HCA 46; (1996) 184 CLR 501 at 510. 49It is well accepted that a plea of guilty must be unequivocal: Maxwell per Dawson and McHugh JJ at 511. 50In S v Recorder of Manchester [1971] AC 481 at 491, Lord Reid stated: "[it] all depends upon whether the plea of guilty was unequivocal and finally accepted or was equivocal and only accepted provisionally." 51In Maxwell , in the discussion as to circumstances that may suggest that a plea is not a true admission of guilt, reference was made to circumstances such as fear, duress and a circumstance involving what may be described as a contrivance, namely (at 511): "... or even the desire to gain a technical advantage ..." 52Equally, in the application of s 17(5) of the Conferencing Trial Act , the reference to "... an offer by the offender to plead guilty" must mean an offer to enter a plea of guilty which is unequivocal in its terms. 53The Crown's apparent hesitation at the conference in accepting the terms of the applicant's offer and its ultimate rejection of the offer put on behalf of the applicant, namely, that the Crown accept the version of facts put forward on his behalf, clearly supports the inference that the Crown felt bound to reject the offer by reason of it being advanced upon a basis that it considered was an unacceptable version of the facts. The Crown in that respect has an obligation to the sentencing court to ensure that the judge determining sentence has a proper basis for proceeding to undertake the sentencing of an offender. 54The evidence, of course, establishes that, at the time of the sentencing hearing, a different statement of facts had been drawn up. It was upon that version that the sentencing of the applicant proceeded. 55The decision whether to charge a lesser offence, or to accept a plea of guilty to a lesser offence than that charged, is for the prosecution and does not involve the approval of the Court: Maxwell at 513. However, a prosecutor would, in my opinion, be subject to the obligation to reject any offer to enter a guilty plea that is made subject to a qualification that the Crown is required to accept the offer upon the basis of a statement of facts which it considers does not properly reflect the elements of the offence or the matters relevant to the determination of culpability of an offender. The acceptance of an offer in those circumstances would directly impact upon the administration of justice by the sentencing court. The Crown in such a case in rejecting the offer to plead guilty, would be acting upon and giving effect to the principles that operate to prevent abuse of the Court's process (including the sentencing process). 56An offer by an offender to plead guilty to an alternative offence under s 17(5) which is conditioned upon a requirement that the Crown accept a statement of facts put forward on behalf of the offender and which is not a proper statement cannot be considered to be an unequivocal offer made without qualification. An offer that is equivocal or qualified cannot, in my opinion be considered to be " an offer " within the meaning of s 17(5)(b). An offer such as that made by the applicant could not be said to be an unequivocal admission of guilt where the statement of underlying facts either do not properly reflect the elements constituting the offence or the true culpability of the offender. It would, in my opinion, be an offer that is contrary to the terms and evident intention of the legislature in relation to sentencing discounts for which s 17 of the Conferencing Trial Act makes provision. 57In the circumstances outlined above, I do not consider that the applicant satisfied the onus under s 17(6) of the Act. 58Accordingly, for the above reasons, I consider that Ground 1(iii) should be dismissed.

Observation in relation to Ground 3 59I would only add one further comment in relation to Ground 3 (the sentence imposed was manifestly excessive). As Harrison J has observed, the applicant was originally charged with an offence of inflicting grievous bodily harm with intent to do so pursuant to s 33 of the Crimes Act . 60The agreed facts indicate that, although the Crown accepted that the applicant did not inflict grievous bodily harm upon the victim with intent to do so, his actions were, nonetheless so serious that, on any view, the offence to which he pleaded under s 35(2) would have to be regarded at the higher end of seriousness for such offences. 61The offence for which the applicant was sentenced involved a series of deliberate acts. These included moving his vehicle towards the victim's vehicle causing the victim to become wedged between the vehicles, continuing to move his vehicle forward, causing the victim to fall to the ground and then again moving the vehicle forward with the right wheels running over the victim's legs. 62Those actions produced an extremely high risk of injury which risk, unfortunately, came home with devastating consequences for the victim. The associated culpability of the applicant after all relevant matters had been assessed, required a very substantial sentence. 63HARRISON J : The applicant seeks leave to appeal against a sentence imposed upon him on 21 May 2010 by Sorby DCJ in the District Court. The applicant pleaded guilty to a charge of recklessly inflicting grievous bodily harm on Winston Jarrett contrary to s 35(2) of the Crimes Act 1900 . That offence carries a maximum penalty of 10 years imprisonment with a standard non-parole period of 4 years. His Honour sentenced the applicant on 21 May 2010 to a term of 8 years imprisonment with a non-parole period of 6 years. He also disqualified the applicant from driving for a period of 3 years to date from the expiration of his non-parole period on 21 May 2016. 64The applicant had originally been charged with two counts arising from an incident in which he drove a truck over Mr Jarrett on 25 June 2008. This is referred to in more detail later in these reasons. The principal charge was that of inflicting grievous bodily harm with intent to do so contrary to s 33 of the Crimes Act . The Crown ultimately accepted the applicant's plea to the s 35(2) charge in full satisfaction of the indictment on the first day fixed for the commencement of his trial on 1 September 2009. 65The applicant relies on three grounds of appeal. They are as follows: Ground 1 : The sentencing judge erred in his approach to the applicant's plea of guilty and in particular (i) erred in reducing the discount for the guilty plea by finding that the plea was not entered at the earliest opportunity; (ii) erred in law by allowing the applicant an insufficient discount for the utilitarian value of the applicant's plea of guilty; (iii) failed to take into account the provisions of the Criminal Case Conferencing Trial Act 2008 ("the Act"). Ground 2 : A different less severe sentence is warranted and ought to have been imposed. Ground 3 : The sentence imposed was manifestly excessive. 66For the reasons that follow, I consider that leave to appeal should be granted but that the appeal should be dismissed. Background 67The facts were agreed. The applicant was a truck driver with more than 15 years' experience with a transport company. On 25 June 2008 he started work at around 7.00am and in the normal course would have expected to complete his duties by about 4.00pm that day. He drove a nine tonne Hino tabletop truck used to deliver powdered milk to various locations in and around Sydney. 68Just after midday on that day, the applicant was travelling south along Forest Way at French's Forest. At the same time Mr Jarrett was driving his Kenworth prime mover on the same road ahead of the applicant. Mr Jarrett's vehicle was in the lane turning left at Warringah Road and the applicant's vehicle was in the lane turning right. As Mr Jarrett's vehicle entered a sweeping left turn onto Warringah Road the applicant cut across in front of him. The vehicles came very close to each other. Shortly thereafter both vehicles stopped side by side in their respective lanes at traffic lights, with the applicant's vehicle on the left side of Mr Jarrett's vehicle. 69Mr Jarrett got out of his vehicle and walked around to the driver's side of the applicant's vehicle. He struck the mirror on the truck with his hand and appeared to make a move toward the driver's side door handle as if about to open it. The door did not open. Mr Jarrett was situated between the two vehicles when the applicant drove forward and to his right. Mr Jarrett became wedged in an upright position between the two vehicles. The applicant continued moving forward, and Mr Jarrett fell to the ground a short distance in front of his truck. Mr Jarrett's upper body was under the corner of his truck but his legs protruded beneath the applicant's truck between its front and rear wheels. The applicant drove forward and the rear wheels of his truck ran over Mr Jarrett's legs. 70Mr Jarrett sustained severe and extensive injuries. These included an open pelvic fracture, a lacerated liver, a ruptured bladder, a severe rectal injury, loss of portion of his lower bowel, a fracture of his right femur and an injury to his prostate. He was placed in an induced coma for nearly two months. 71His Honour found that the offence was objectively serious and that the applicant's vehicle had caused very serious and extensive injuries to Mr Jarrett resulting in life long disabilities. His Honour found that the emotional loss and harm to Mr Jarrett was also substantial. He found that the offence fell well above the mid range of objective seriousness for such offences. Subjective features 72The applicant did not give evidence at the sentencing hearing. A psychological report from Ms Joan Langham dated 14 October 2009 was tendered on his behalf. The applicant reported that his mother had left his father when he was a child. He ran away from home during his adolescence and reported having been sexually abused as a child. He complained of anxiety and was extremely distressed when he saw Ms Langham. 73Dr Seidler, the applicant's treating doctor, reported that he had had a heart attack in 1964 at the age of 20, and a hepatitis C infection. He had been referred to the diabetes clinic at St Vincent's Hospital. He had high blood pressure and exhibited signs of anxiety and depression, spending many hours in bed. He had been prescribed anti-depressant medication. The applicant had prior convictions, including two counts of assault in 1978 and assault occasioning actual bodily harm in 1996. The applicant's argument 74In his remarks on sentence his Honour commented as follows: "The plea entered by the [applicant] was not at the earliest opportunity but on the day of the trial, and I will allow twelve percent for the plea's utilitarian value in accordance with R v Thomson and Houlton (2000) 49 NSWLR 383." 75The applicant contended that his Honour fell into error inasmuch as he failed to have regard to the provisions of the Criminal Case Conferencing Trial Act . Some of the relevant provisions of that Act are as follows: " 12 Compulsory conference certificate (1) The prosecution and a legal representative who acted on the accused person's behalf at the conference must complete a compulsory conference certificate after a compulsory conference. (2) The compulsory conference certificate is to be signed by the prosecution and the accused person before it is filed in accordance with subsection (4). (3) The compulsory conference certificate is to certify as to the following matters: (a) the offence or offences (including any back up or related offences within the meaning of section 165 of the Criminal Procedure Act 1986 ) with which the accused person had been charged before the conference and for which the prosecution will seek committal of the accused person for trial or sentence, (b) any alternative offences to those referred to in paragraph (a) discussed at the compulsory conference, (c) any of the offences referred to in paragraph (a) or (b) to which the accused person has offered to plead guilty, (d) whether the accused person or the prosecution has accepted or rejected any such offers, (e) if the accused person has offered to plead guilty to any offence and the offer has been accepted by the prosecution-details of the agreed facts on the basis of which the accused person has offered to plead guilty and details of facts (if any) in dispute, (f) any additional offences with which the accused person has been charged to which the accused person has offered to plead guilty and agreed to ask the court to take into account under section 33 of the Crimes (Sentencing Procedure) Act 1999, (g) if the accused person considers the brief of evidence provided inadequate information to enable the accused person to assess the prosecution's case-details of the inadequacy. (4) ... 13 Effect of compulsory conference certificate (1) Except as provided by this section, a compulsory conference certificate that has been filed, or a copy of such a compulsory conference certificate, is not admissible in any proceedings before any court, tribunal or body and such a certificate and any of its contents: (a) are not to be disclosed to any person other than the prosecution, a police officer, the accused person or the accused person's legal representative, the victim of the offence concerned or a member of the victim's immediate family (within the meaning of the Victims Support and Rehabilitation Act 1996 ), and (b) cannot be required to be produced under a subpoena issued in any proceedings before any court, tribunal or body. (2) A compulsory conference certificate, or copy of a compulsory conference certificate, is admissible in any proceedings in a sentencing court for the purpose set out in section 17 (7) and is evidence of the matters certified in it. (3) A compulsory conference certificate, or copy of a compulsory conference certificate, and the contents of such a certificate may be disclosed for the purposes of a proceeding referred to in subsection (2). (4) A sentencing court must refuse to admit evidence of any compulsory conference certificate if any provisions of this Part with respect to the holding of the compulsory conference concerned or the preparation of the certificate have not been complied with unless it is satisfied that there was a good and proper reason for the failure to comply with the provision concerned and that it is in the interests of justice to admit the evidence. (5) A person who discloses the contents of a compulsory conference certificate, or copy of a compulsory conference certificate, in contravention of subsection (1) is guilty of an offence. 16 Sentencing for certain indictable offences taking into account guilty plea (1) In passing sentence for an indictable offence on an offender who has pleaded guilty, a sentencing court: (a) must indicate to the offender, and make a record of, the penalty it would have imposed but for the guilty plea, and (b) must allow a discount on the sentence for the guilty plea in accordance with section 17 (1) and may allow a discount in accordance with section 17 (2) or (4). (2) A discount for a guilty plea, in relation to an offence, means a discount for: (a) the saving in resources and time that would otherwise be expended in a trial for the offence but for the guilty plea, and (b) the avoidance of the additional trauma to the victim that might be caused by a trial for the offence, and (c) the contrition that the sentencing court considers that the offender demonstrates by pleading guilty, and (d) any other benefit associated with or demonstrated by the guilty plea. (3) ... (7) This section does not affect or limit any mitigating factor other than a guilty plea that a court may take account of in determining the appropriate sentence for an offence. (8) Sections 21A (3) (k) and 22 of the Crimes (Sentencing Procedure) Act 1999 do not apply to the passing of a sentence to which this section applies. (9) A discount for a guilty plea is not to exceed the applicable limits provided in section 17. 17 Discount for guilty plea (1) If an offender pleaded guilty to an offence at any time before being committed for sentence, the sentencing court must allow a discount for the guilty plea calculated as follows: (a) if the court imposes a sentence of imprisonment for a term-a term that is 25% less than the term the court would otherwise have imposed, (b) if the court imposes a fine-a fine that is 25% less than the fine the court would otherwise have imposed, (c) if the court makes a community service order directing the performance of community service work for a specified number of hours-work for 25% less than the number of hours the court would otherwise have ordered to be performed, (d) if the court imposes a good behaviour bond for a term-a bond for 25% less than the term the court would otherwise have imposed. (2) If an offender pleaded guilty to an offence at any time after being committed for trial, the sentencing court may allow a discount for the guilty plea of up to 12.5% less than the term, fine, work or bond that it would otherwise have imposed. (3) However, when calculating the appropriate discount for the purposes of subsection (2), the court may only allow a discount that is proportionate to the remaining benefit of the guilty plea as determined by reference to the matters set out in section 16 (2). (4) A sentencing court may allow a discount under this section for a guilty plea that is greater than that referred to in subsection (2) (but not greater than that referred to in subsection (1)) if an offender has pleaded guilty to an offence after being committed for trial and the court is satisfied that substantial grounds exist as referred to in subsection (5) for allowing a greater discount. (5) For the purposes of subsection (4), substantial grounds exist for allowing a greater discount if: (a) the compulsory conference certificate in relation to the offence records an offer by the offender to plead guilty to an alternative offence set out in the compulsory conference certificate that was refused by the prosecutor at any time before committal for trial and the offender was subsequently found guilty of that alternative offence, or (b) the compulsory conference certificate records an offer by the offender to plead guilty to an alternative offence that was refused by the prosecutor at any time before committal for trial and accepted by the prosecutor after committal for trial, or (c) the offer to plead guilty to an alternative offence is made for the first time, and accepted, after committal for trial and the offender had no reasonable opportunity to offer to plead guilty to such an offence before the committal, or (d) the offender was found unfit to be tried for the offence concerned after being committed for trial and pleaded guilty to the offence when he or she was subsequently found fit to be tried. (6) The burden of establishing the matters referred to in subsection (5) lies on the offender and must be proved on the balance of probabilities. (7) The sentencing court may, for the purpose only of resolving any issue concerning the matters agreed to by parties at, or after, any compulsory conference held in respect of the offence to which the offender has pleaded guilty, or of making a determination in relation to any matter referred to in subsection (5), take into account the compulsory conference certificate relating to the conference." 76Having regard to the terms of s 17, it should be noted that on 14 May 2009 a case conference was held between the parties. The matter was then still in the Local Court. At that time the applicant offered to plead guilty to the s 35(2) offence, for which he was subsequently sentenced. That offer is contained in a Pre-Conference Disclosure Certificate that was tendered before his Honour. It is in these terms: "A conference was held with the prosecution and the accused person's legal representative on 14 May 2009 at Sydney. As a result of the conference the following is certified:

1. The Prosecution has listed in the attached Disclosure Certificate those charges in which pleas are sought in full satisfaction of the prosecution case.
2. The Accused person has offered to plead guilty to the following alternative charges not listed in the prosecution Disclosure Certificate in full satisfaction of the prosecution case: H36656286/1 - Recklessly cause GBH (sec. 35)
3. The Director of Public Prosecutions has rejected the offer of a plea of guilty to the offence listed above, offered by the Accused Person and intended to be in full satisfaction of the prosecution case.
4. The prosecution is seeking that the Accused Person be committed for trial on the following offences: Charge Details Recklessly cause GBH (sec. 35) Dangerous Driving occasioning GBH (sec. 52A(3)(c)) Fail to Stop (sec. 52AB(2)) Maliciously inflict GBH with Intent (sec. 33)." 77That certificate is a "compulsory conference certificate" for the purposes of ss 12 and13 of the Act. 78Counsel for the applicant drew his Honour's attention to the 14 May 2009 offer to plead guilty. The transcript of what passed between his Honour and counsel at that time is instructive and is in the following terms: "WILLIAMS: Just in relation to the timing of the plea your Honour I hand up a document headed 'Disclosure Certificate' which outlines negotiations between legal representatives prior to the plea of guilty. Your Honour will see that there was an offer by the [applicant] through his lawyers to plead guilty to this charge at an earlier date. It was not then accepted by the Crown. That date being 14 May 2009. McKAY: I have no objection to this but my concern is, my recollection is and I stand corrected if my friend can - that I've seen documentation, attached with the offer to plea[d] was a set of facts which the defence was suggesting the offer was based on and they are facts different to what's being presented to you this morning. WILLIAMS: That is correct your Honour but... McKAY: And the facts were not acceptable to the prosecution. WILLIAMS: But the end result, your Honour, is that the Crown has said here the Crown would only take a plea to a charge under s 33. HIS HONOUR: Yes that's because of the facts. That's why the Crown said that. WILLIAMS: Well the Crown says that, I wasn't party to those negotiations. HIS HONOUR: No. Well I'll take it into account." 79Later during submissions his Honour asked about the discount for the plea of guilty. That appears in the following extract: "HIS HONOUR: What percentage do you say for the plea? WILLIAMS: I agree with my friend that between 10 and 15 per cent." 80Counsel for the applicant in this Court did not appear at the sentencing hearing. He submitted in this Court that it was unclear why his predecessor had made that concession before his Honour. Whatever may have been the reason, he submitted first that it could not be regarded as a concession that substantial grounds in accordance with s 17(4) did not exist, or secondly that the concession somehow cured his Honour's failure to engage or adequately to exercise the s 17(4) discretion. According to this submission, it followed that a greater discount should have been allowed and that in the circumstances some other sentence was warranted and should have been imposed at law in accordance with s 6(3) of the Criminal Appeal Act 1912 . 81The applicant contended that the sentencing judge did not consider whether or not there were "substantial grounds" within the meaning of that expression in s 17(5) of the Act, upon the basis of which a discount of up to 25 per cent could have been allowed. The applicant submitted that this was an error. He referred to LJ v R [2010] NSWCCA 289 at [29] - [30] as follows: "[29] Both parties agreed in this Court, but not unfortunately before his Honour, that the Criminal Case Conferencing scheme applied to the applicant. As the plea had been entered before committal, s 17(1)(a) mandated a 25 per cent discount for the plea whereas the sentencing judge had allowed a discount of 15 per cent. In Do v R [2010] NSWCCA 182 and Tran v R [2010] NSWCCA 183, Hislop J (with whom McClellan CJ at CL and Barr AJ agreed) accepted the Crown's concession in those cases that the failure by the sentencing judge to give a 25 per cent discount when the Criminal Case Conferencing Trial Act applied was a material error, which required the sentence to be quashed and the applicant re-sentenced. [30] The failure to apply the mandated discount is an error of such materiality as to justify the Court's intervention, having regard to the terms of s 6(3) Criminal Appeal Act 1912. I am satisfied that "some other sentence...is warranted in law and should have been passed." The applicant is to be re-sentenced." 82The sentencing judge asked whether the applicant had pleaded at the "first opportunity" and was informed by the Crown that the applicant had pleaded guilty to the alternative count on the day of the trial. The Crown submitted that a discount of approximately 10 per cent was appropriate with 15 per cent being the "upper limit". The Crown's response 83The Criminal Case Conferencing Trial Act was not in terms referred to by the parties at the sentencing hearing, so that his Honour was not expressly alerted to any possible need to exercise his discretion under s 17 of the Act. However, the Crown submitted that a proper reading of the section indicates that the fundamental criteria for the fixing of discounts referred to in R v Borkowski [2009] NSWCCA 102; (2009) 52 MVR 528 remain relevant where the plea is entered after the offender is committed for trial. 84Earlier cases would appear only to have dealt with the situation where the statutory entitlement to a 25 per cent discount arose following a plea of guilty entered at committal. See, for example, Do v R [2010] NSWCCA 182 at [2]; Tran v R [2010] NSWCCA 183 at [2]; LJ v R at [3]; Greer v R [2011] NSWCCA 40 at [13] and Chompeay v R [2011] NSWCCA 96 at [11]. The Crown contended that the applicant's reliance on LJ v R was misplaced because that case involved a plea in the Local Court thereby engaging s 17(1) of the Act. In the present case, the Crown submitted that only s 17(5)(b) could be relevant at best. However, the Crown sought to argue that even that section did not apply, because there was a dispute about the facts upon which the applicant was prepared to plead and those upon which the Crown was prepared to accept that plea. 85The Crown contended that the exercise of discretion contained in s 17 was still informed by the common law principles relating to discounts for early pleas. In relation to the award of a discount between 12.5 per cent and 25 per cent on "substantial grounds" in s 17(4), the Criminal Case Conferencing Trial Regulation 2008 includes a standard form of written advice in plain English, which is to be given to accused persons under the case conferencing regime. Portion of the form is entitled "Maximum sentence discount for guilty plea after committal for trial" and includes the following: "If you plead guilty at any time after being committed for trial, a court may discount your sentence by up to 12.5% for the guilty plea depending on how much of a benefit will result from you pleading guilty at that stage of the proceedings. If the court considers there is no benefit gained from the guilty plea at that stage, no discount for the guilty plea will be allowed. In certain exceptional circumstances, you may be allowed a sentence discount of up to 25%." 86The Crown emphasised that this was consistent with the principles promoted in Borkowski . 87The Crown submitted that irrespective of whether or not it was suggested that the discount should be below or above 12.5 per cent in the present case, the applicant's offer to plead guilty at the case conference stage in the Local Court was contingent upon a set of facts that was unacceptable to the Crown and the applicant did not in the end result attempt to prove those facts. Indeed, in due course facts were agreed. His Honour the sentencing judge was then entitled to determine the objective seriousness of the offence by reference to the facts as agreed.

Supplementary submissions 88As a result of some concerns that arose during the hearing of the application in this Court, on the question of the differing factual basis for the original offer to plead and those tendered as the basis for the plea that was ultimately accepted, the parties were invited to provide supplementary submissions. 89The applicant confronted the issue of whether or not what the Crown described as his "conditional" offer was an "offer" for the purposes of s 17(5)(b) of the Act. The Crown contended that the applicant's offer to plead guilty was contingent upon a set of facts that were unacceptable to the Crown and that the applicant in the end did not attempt to prove them. In contrast the applicant contended that no such issue arose at the sentencing hearing and that there was no evidence before the sentencing judge about what were the facts underpinning the applicant's original offer to plead. The agreed facts upon the basis of which the applicant pleaded guilty were tendered in evidence. The applicant submitted that the difference between them and any earlier version was either uncertain or irrelevant. 90The applicant sought to analyse the operation and effect of the statutory regime in the following way. If he fell within the terms of s 17(5)(b), the applicant was entitled to have the sentencing judge consider the exercise of a discretion to allow a discount of between 12.5 per cent and 25 per cent for a plea. However, there is no provision in the Act dealing with what is to occur in circumstances where there is a disagreement between the parties about the facts that should support a plea and for that reason the prosecution refuses to accept it. The applicant contended that this was to be contrasted with the position where an offer is accepted by the prosecution so that s 12(3)(e) applies. In such a case, details of the agreed facts on the basis of which the accused person has offered to plead guilty and details of facts (if any) in dispute must be certified. 91The purpose of a compulsory conference is to determine whether there is any offence or there are any offences to which the accused person is willing to plead guilty and any other matters referred to in s 12(3) on which the accused person and the prosecution are able to reach agreement: s 6(3). Other than s 12(3), in cases where agreement has finally been reached, there is no provision in the Act enabling the parties to set out details of agreed or disputed facts. The applicant contended that the so-called conditional offer made by the accused to plead guilty at committal, which the Crown rejected, was an offer to plead guilty for the purposes of s 17(5)(b) of the Act. 92The Crown also made further submissions. The Crown perceived that the applicant's argument was based upon an interpretation of the "offer" in s 17(5)(b) being limited to "a plea of guilty to the elements of any given offence" and that "the facts are not elements of the offence". The Crown argued that the applicant is therefore driven to the conclusion that even an offer to plead guilty to an offence contingent on facts that were said to traverse the guilty plea would still be an offer falling within s 17(5)(b) of the Act. 93In stark contrast, the Crown contended that the "offer" for the purposes of s 17(5)(b) must include the set of facts that were offered as part of the offer to plead guilty to any particular charge. From first principles, the facts that are admitted by an accused person form the basis of the sentencing court's findings on matters such as the objective gravity or seriousness of the offence. Their influence and effect in this respect cannot be gainsaid. The facts, therefore, may determine whether or not the sentencing tribunal disposes of the case without recording a conviction at one extreme or imposes the maximum penalty for the offence at the other. 94The importance of the facts is also recognised in the various provisions of the Act: see, for example, ss 6(1)(d), 6(2)(a), 6(3), 7(1)(a), 8, 9, 11(3), 12(3)(e) and 12(3)(g). 95In the present case, the applicant's offer to plead to a s 35 offence before the committal clearly was not unconditional. There is, however, in the Crown's submission, a major difficulty posed by s 6(4) of the Act, which prevents the disclosure of anything said between the parties or any admission made during a compulsory conference or negotiations after the conference. The Crown submitted that this was unsatisfactory because justice otherwise dictated that the facts proposed by the defence should be disclosed. Any rejection by the Crown of an offer to plead guilty based upon those facts could then be taken into account either by this Court or the sentencing court and its reasonableness properly considered in assessing the extent of any discount. Section 6(4) creates a blanket exclusion over anything said in a compulsory conference. That would logically extend to include any "agreed facts". The further reference in s 6(4) to s 13 would not appear to assist, because s 17(7) only permits the court to consider the compulsory conference certificate, to which a set of "rejected" facts need not be annexed. 96By way of contrast, the sentencing court and this Court can take account of the circumstances in which the offer to plead guilty was rejected by the Crown, because it formed part of the evidence before the sentencing judge and is available to this Court in the transcript of those proceedings. The matters revealed in the extract from the transcript set forth at [79] and [80] above were therefore properly and uncontroversially taken into account by the sentencing judge and are similarly available for consideration in this Court. 97The Crown submitted that the applicant's interpretation of s 17(5)(b), that the "offer" to plead guilty is to be considered effectively in a vacuum unadorned by the underpinning facts, would produce the absurd result that any applicant could offer to plead guilty to an alternative or back up offence on patently unacceptable facts. If that led to a rejection of the plea by the Crown, the applicant could nevertheless choose later to plead guilty to the same charge on facts acceptable to the Crown, whilst simultaneously calling in aid s 17(5)(b) of the Act to argue for a discount exceeding that which might be available on common law principles as summarised in Borkowski . According to the Crown, this would potentially undermine the operation of the scheme of the Act and could not have been intended. 98Finally, the burden of establishing the existence of "substantial grounds" in s 17(5)(b) lies on the applicant: s 17(6). In this case that would necessarily or at least arguably include the burden of establishing that the facts underpinning the rejected plea to the s 35 offence in the Local Court were not substantially or relevantly different to the agreed facts upon the basis of which the Crown ultimately accepted the applicant's plea of guilty. The applicant has not discharged that onus so that the relevant ground of appeal fails.

Consideration 99There does not appear to be any dispute between the parties that the applicant pleaded guilty to the s 35(2) offence after being committed for trial. So much is apparent from the applicant's submission that the plea falls squarely within the terms of s 17(5)(b) of the Act even despite the disagreement exposed in the passages from the transcript recorded above. On the other hand, the Crown relies upon that disagreement to support the contention that s 17(5)(b) does not apply. This is said to be because, even though the compulsory conference certificate records an offer by the offender to plead guilty to an alternative offence under s 35(2), which was refused by the prosecutor at some time before committal for trial, the plea that was ultimately accepted by the prosecutor after committal for trial was based upon different facts. On this basis, according to the Crown, s 17 was not relevantly engaged at all so that his Honour's failure to refer to it was both explicable and inconsequential. 100The first question to be determined therefore is whether the Criminal Case Conferencing scheme applies to the applicant and whether he falls within s 17(5)(b) of the Act. 101The applicant certainly offered to plead to a charge pursuant to s 35(2) of the Crimes Act prior to his committal. He ultimately did so at his trial. A compulsory conference certificate issued. It was tendered in the sentencing proceedings. The literal terms of s 17(5)(b) were satisfied. That triggered a basis upon which the applicant was able to contend that he was entitled to a discount of between 12.5 and 25 per cent. However, it is critical to understand precisely what is encompassed in this case by the words "an offer" in the expression "records an offer by the offender to plead guilty to an alternative offence" in s 17(5)(b). The offer is both the offer "that was refused by the prosecutor at any time before committal for trial and accepted by the prosecutor after committal for trial" (emphasis added). It would seem to be apparent that the reference to "an offer" in s 17(5)(b) that has been rejected and then later accepted is a reference to the same offer. 102If an accused person has offered to plead guilty to any offence and the offer has been accepted by the prosecution, the compulsory conference certificate must certify details of both the agreed facts on the basis of which the accused person has offered to plead guilty as well as details of any facts in dispute: s 12(3)(e). The applicant in the present case offered to plead guilty to a s 35(2) offence but the prosecution declined to accept that offer. This is said to be because there was a disagreement about the facts. However, it would appear from the terms of s 12(3)(e) that what should have happened is that the applicant's offer to plead guilty to the offence should have been accepted upon the basis of facts that were agreed whilst specifying the facts that remained in dispute. This regime appears to contemplate what amounts to the conditional acceptance of an offer. In the events that occurred, there was no acceptance of any offer, conditional or otherwise. That had at least two consequences. First, there was no reference in the compulsory conference certificate to any disputed facts. Secondly, and for that reason, the applicant has potentially been deprived of an opportunity to qualify as a s 17(5)(b) offender and establish "substantial grounds". 103In my opinion, the applicant does qualify as a s 17(5)(b) offender. There can be no doubt that a proper understanding of the facts that underpin a plea of guilty is critical to the sentencing process. The Act anticipates the distinction between agreed and disputed facts. The compulsory conference certificate in this case was silent about disputed facts. The applicant promotes the certificate in support of his attempt to establish the existence of "substantial grounds" for the purposes of s 17(4). He is in my view entitled to rely upon what the certificate says for that purpose. It remained open to the Crown to establish that there were good reasons for the rejection of the plea before committal if it wished to do so. That follows from the fact that the disputed facts could have been included in the certificate in accordance with the s 12 procedures. 104Discussions and negotiations between an offender and the Crown will usually, if not always, involve competing views about the grounds upon which the plea is offered and the grounds upon which it will be accepted. The applicant's submission proceeds upon the basis that provided the charge to which the offender relevantly offers to plead and the charge in respect of which the Crown is willing to accept a plea remains the same, there is no basis for preventing the applicant from establishing s 17(5)(b) "substantial grounds" just because the disputed facts are not specified in the compulsory conference certificate. I agree. 105The next question that arises is whether or not, if the Criminal Case Conferencing scheme did apply to the applicant, his Honour fell (or was led) into error in failing to refer to or apply s 17(5)(b) of the Act when passing sentence, with the result that the sentencing proceedings miscarried. The applicant contends that he did and that he was thereby deprived of the opportunity to argue the existence of "substantial grounds" for a discount between 12.5 and 25 per cent. The Crown contended that it did not matter that his Honour did not specifically refer to or apply s 17(5)(b) in terms, because it was open to him to give a discount up to 25 per cent in any event in accordance with the common law. This much was said to be apparent from the general discussion by both counsel of a discount up to as much as 15 per cent. 106As appears above, his Honour remarked that the applicant did not enter a plea "at the earliest opportunity". It is apparent that in expressing the matter in that way, his Honour intended to refer to the fact that the plea was entered "on the day of the trial". It also seems clear, therefore, that in so saying his Honour was not dealing with the applicant upon the basis that he was a s 17(5)(b) offender. In my opinion this amounts to an error, as the applicant contends in Ground 1, because he failed to take the provisions of the Act into account. The compulsory conference certificate establishes that the applicant offered to plead at committal and well before "the day of the trial". 107The next issue to be determined is what, if anything, flows from that error. For example, it was always open to his Honour to have declined to find that a discount in the range of between 12.5 per cent and 25 per cent was warranted, despite the existence of the s 17(5)(b) "substantial grounds". This was a finding that was open to him as a matter of discretion. This case is different to LJ v R in that respect. I do not consider that this is a case where the exercise of the sentencing discretion miscarried because, for example, his Honour erroneously disregarded the 12.5 to 25 per cent range for discounts within which he was bound by the terms of the Act to operate. The error was in not taking that range into account, not in failing to find a discount that fell within it. 108Even if I am wrong about this, I do not consider that any less severe sentence is warranted in law or should have been passed. The applicant made the following submission in support of Ground 3: "[54] The offence carried ... a maximum penalty of 10 years imprisonment with a standard non-parole period of 4 years. The starting point for the sentencing judge before plea was a little over 9 years imprisonment. This is indicative of the fact that the sentencing judge gave very little effect to any subjective circumstances and imposed a sentence which failed to reflect the objective seriousness of the offence committed and proportionality between the sentence and the circumstances of the crime committed." 109I do not consider that this necessarily follows. As the applicant's submissions otherwise accept, the imposition of the maximum penalty for any offence should be reserved for those cases that can properly be characterised as falling within the worst category of cases for which that penalty is prescribed: Ibbs v The Queen [1987] HCA 46; (1987) 163 CLR 447 at 451 - 452. The sentence imposed in the present case was close to the maximum. It was not suggested at the sentencing hearing that the offence fell within the worst category. However, his Honour found that it fell "well above the mid-range of objective seriousness". The injuries caused to the victim are relevant in this respect and his Honour was obviously influenced by them. He was in my view entitled to be. I am not satisfied that his Honour fell into error in imposing the sentence that he imposed. A sentence that commences "very close to the maximum penalty" is not of itself demonstrative of error in general and is not so in this case in particular. The sentence imposed by his Honour is stern, but it is in my opinion neither unreasonable nor plainly unjust.

Conclusion and orders 110I would propose the following orders:

1. Grant leave to appeal.
2. Dismiss the appeal.

Amendments 15 November 2012 - s 17(1)(4) and s 17(5)(1)(b) changed to s 17(4) and s 17(5)(b) respectively Amended paragraphs: 2 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: 22 November 2012