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Court of Criminal Appeal 2 August 2021

Ke v R

[2021] NSWCCA 177

Fraud & dishonesty
OFFENCES SENTENCE NO SUCH ERRORS ON THE PART OF COUNSEL SENTENCE COMPLAINT OF UNJUSTIFIED DISPARITY NO UNJUSTIFIED DISPARITY CRIMINAL LAW

Citation: Ke v R [2021] NSWCCA 177
Court: NSW Court of Criminal Appeal
Date: 2 August 2021
Judges: Brereton JA, Adamson J, Bellew J

Background

The applicant pleaded guilty in the District Court to recklessly dealing with the proceeds of crime under s 193B(3) of the Crimes Act 1900 (NSW). The substance of the offending was that she had sold stolen baby formula in circumstances where she was reckless as to the fact that it had been stolen.

Before committal, the applicant had offered to plead guilty to the recklessness offence. The Crown rejected that offer at the time, insisting on a plea to the more serious charge of knowingly dealing with proceeds of crime under s 193B(2). The Crown eventually accepted the lesser plea, but critically, neither the pre-committal offer nor the subsequent negotiations had been recorded in the documentation required under the Early Appropriate Guilty Plea (EAGP) Scheme. The sentencing judge was not made aware of the earlier offer and applied only a 10% sentence discount for the guilty plea rather than the 25% discount available under the EAGP Scheme for a pre-committal offer.

The applicant was sentenced to 2 years and 3 months imprisonment with a non-parole period of 18 months. She sought leave to appeal against both conviction and sentence.

  • Whether the circumstances in which the guilty plea was entered gave rise to a miscarriage of justice, including whether the indictment was defective, whether the plea reflected true consciousness of guilt, whether legal representatives were incompetent, and whether the plea was induced by improper pressure from the Director of Public Prosecutions
  • Whether the mental element of recklessness in the proceeds of crime offence required the Crown to prove the applicant knew (rather than was merely aware of the possibility) that the goods were stolen
  • Whether failures by sentencing counsel caused a miscarriage of justice
  • Whether the sentencing judge gave disproportionate weight to the agreed facts and insufficient weight to the applicant's subjective circumstances
  • Whether there was unjustified sentencing disparity between the applicant and her co-offender
  • Whether applying a 10% guilty plea discount, rather than the 25% EAGP discount available for a pre-committal offer, constituted manifest excess in the sentence

Decision

Conviction appeal: refused. The Court held unanimously that the applicant had not established a miscarriage of justice. The indictment was not defective. Recklessness, for the purposes of the charge, required the Crown to prove that the applicant was aware of the possibility that the goods were stolen and proceeded to deal with them notwithstanding that awareness. It did not require proof that she actually knew the goods were stolen. The Court confirmed that the standard articulated in Blackwell v R and Banditt v The Queen applied.

The Court rejected each of the applicant's specific grounds. Her legal representatives were found to be experienced, competent and diligent. The applicant had been advised, with the assistance of an interpreter, of the elements of the offence and the strength of the Crown case. The agreed facts were as favourable to her as they could have been. Statements attributed to the applicant in a medical report tendered at sentence confirmed that she understood the charge to which she had pleaded. The Court also rejected the submission that the Crown had induced the plea by improperly maintaining charges against the applicant's children, noting there was no evidence to support that allegation. Bellew J added that advancing a submission of prosecutorial impropriety without evidentiary foundation was itself improper.

Sentence appeal: allowed on one ground only. The Court found error in the application of only a 10% guilty plea discount. The applicant had made a pre-committal offer to plead guilty, which, if properly recorded under the EAGP Scheme, would have attracted a 25% discount. The offer had not been recorded in the required case conference certificate, and that omission had been overlooked. Critically, the Crown did not draw the sentencing judge's attention to those earlier negotiations. The Court found it was necessary to construe the EAGP legislation in a way that avoided manifest injustice and that, on a proper construction, a 25% discount was warranted. All other sentence grounds, including alleged incompetence by sentencing counsel, disparity with the co-offender, and insufficient weight given to subjective circumstances, were rejected.

The applicant was resentenced to 1 year and 10 months imprisonment with a non-parole period of 14 months, reflecting the correct 25% discount.

Orders Made

  • Leave to appeal against conviction refused
  • Leave to appeal against sentence granted
  • Sentence appeal allowed
  • District Court sentence quashed
  • In lieu thereof, imprisonment for 1 year and 10 months commencing 24 June 2020 and expiring 23 April 2022, with a non-parole period of 14 months commencing 24 June 2020 and expiring 23 August 2021

Key Takeaways

  • Recklessness under s 193B(3) of the Crimes Act 1900 (NSW) requires proof that the accused was aware of the possibility that the relevant goods were proceeds of crime and proceeded to deal with them with that awareness. It does not require proof of actual knowledge, and arguments that the indictment or plea advice must be framed in terms of knowledge were rejected.

  • A guilty plea will not be set aside as a miscarriage of justice merely because it was entered under pressure inherent in plea negotiations. The applicant must affirmatively establish that a miscarriage occurred, and that standard is not easily met.

  • Under the EAGP Scheme, a pre-committal offer to plead guilty can attract a 25% sentence discount. Where such an offer is not recorded in the required case conference certificate due to oversight, the Court of Criminal Appeal confirmed it is open to construe the legislation so as to avoid the manifest injustice that would result from denying the applicant the benefit of that offer.

  • Where the Crown is aware of pre-committal plea negotiations that bear on the applicable sentence discount, failure to bring those matters to the sentencing judge's attention can constitute error warranting intervention on appeal.

  • Allegations of incompetence against legal representatives require evidentiary foundation. In the absence of such evidence, and where counsel exercised a legitimate discretion as to how to conduct proceedings, no miscarriage of justice will be established.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 193B(2), 193B(3)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 5, 25A, 25B, 25C, 25D, 25E, 25F
- Criminal Procedure Act 1986 (NSW), ss 53, 55, 70, 72, 74, 75, 77, 130
- Justice Legislation Amendment (Committals and Guilty Pleas) Act 2017 (NSW)
- Crimes (Sentencing Procedure) Amendment (Sentencing Options) Act 2017 (NSW)
- Migration Act 1958 (Cth), ss 501, 501CA
- Criminal Appeal Act 1912 (NSW), s 5

Key cases:
- Banditt v The Queen (2005) 224 CLR 262
- Blackwell v R (2011) 81 NSWLR 119
- Meissner v The Queen (1995) 184 CLR 132
- Maxwell v The Queen (1996) 184 CLR 501
- Kumar v The Queen [2014] VSCA 102
- Liberti v The Queen (1991) 55 A Crim R 120
- Kentwell v The Queen (2014) 252 CLR 601
- Lehn v R (2016) 93 NSWLR 205
- Green v The Queen; Quinn v The Queen (2011) 244 CLR 462
- House v The King (1936) 55 CLR 499
- Lowe v The Queen (1984) 154 CLR 606
- Afful v R [2021] NSWCCA 111
- Banat v R [2020] NSWCCA 321
- Charlesworth v R (2009) 193 A Crim R 300
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