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Court of Criminal Appeal 5 May 2025

Rokovada v R

[2025] NSWCCA 64

Sexual offences

Citation: Rokovada v R [2025] NSWCCA 64
Court: Court of Criminal Appeal
Date: 5 May 2025
Judge(s): Adamson JA, Hamill J, Ierace J

Background

The applicant was convicted of sexual intercourse without consent contrary to section 61I of the Crimes Act 1900 (NSW) and sentenced to 2 years and 6 months imprisonment with a non-parole period of 1 year and 3 months. The sentencing judge applied a 10% discount for the applicant's guilty plea, reflecting that the plea was entered after committal for trial.

While the matter was still in the Local Court, the applicant had offered on 22 February 2024 to plead guilty to a single charge of sexual intercourse without consent on a particular agreed factual basis. The Crown rejected that offer. Some months later, at a District Court "Super Call-over" on 25 July 2024, a different prosecutor accepted the plea on terms identical to the applicant's earlier rejected offer.

The applicant sought leave to appeal on the basis that the sentencing judge should have applied the maximum 25% discount available under section 25D(2)(a) of the Crimes (Sentencing Procedure) Act 1999 (NSW), rather than the 10% discount applicable under section 25D(2)(b) to pleas entered after committal.

Legal Issues

  • Whether the sentencing judge erred by applying a 10% discount under section 25D(2)(b) instead of a 25% discount under section 25D(2)(a) of the Crimes (Sentencing Procedure) Act 1999 (NSW).
  • Whether an offer to plead guilty made and recorded in Local Court proceedings, but not formally accepted there, can qualify as a plea "made before and accepted by a Magistrate in committal proceedings" for the purposes of section 25D(2)(a).
  • Whether the statutory scheme's treatment of early plea offers to charged offences produces an unjust outcome, and whether any remedy lies within the legislation's proper construction.

Decision

Ground 1: Proper construction of section 25D(2)(a)

The Court held that section 25D(2)(a) applies only where a plea of guilty has been actually entered and accepted by a Magistrate in committal proceedings. It does not extend to an offer to plead guilty, even one recorded in a Case Conference Certificate (at [37]). The applicant fell squarely within section 25D(2)(b) because he pleaded guilty after being committed for trial, not before it (at [37]).

The Court rejected the submission that the Crown's later acceptance of the same terms should be read back as equivalent to a pre-committal plea. That construction was contrary to the plain words of the statute. The quantum of the sentencing discount under Division 1A turns on the actual timing of the plea, not on the timing of the offer (at [37]). The applicant could have entered a formal plea under section 97(1) of the Criminal Procedure Act 1986 (NSW) before committal but chose not to do so, and the forensic reasons for that choice did not alter the statutory outcome (at [38]).

Ground 1 (analogy with Ke v R): Distinguishing clerical error from a deliberate choice

The applicant drew an analogy with Ke v R [2021] NSWCCA 177, where the Court gave credit for a plea offer that had been made at the case conference but, through clerical error, was not recorded on the certificate. The Court in the present case rejected that analogy. In Ke, the offer had actually been made and the failure to record it was an administrative omission. Here, the applicant did not enter a formal plea in the Local Court: the situation was not an error but a deliberate decision not to plead at that stage (at [38]).

Ground 1 (purpose and legislative choice): Inflexibility is a feature, not a flaw open to judicial correction

Adamson JA held that Division 1A was designed to remove judicial discretion and establish certainty based on the timing of the actual guilty plea (at [43]). Parliament could have chosen to base the 25% discount on an offer to plead guilty, as occurs in the civil offer-of-compromise context, but it did not (at [42]). Courts are not entitled to read words into a statute to ameliorate consequences of a clear legislative choice (at [44]). The sentencing judge was therefore correct to apply a 10% discount (at [44]).

Observations on unfairness and the statutory scheme

All three judges acknowledged the unjust outcome. Hamill J observed that the measure of leniency received by the applicant was effectively determined by the attitude of the prosecutor at the case conference in the Local Court (at [53]), and noted this case was one of several where the prescriptive regime had produced actual or potential injustice (at [54]). Ierace J identified what he described as an "apparent disconnect" in the statutory scheme between the committal stage and the sentencing stage: the Case Conference Certificate is required to record early plea offers to charged offences, yet those offers attract no discount if the plea is not formally entered in the Local Court (at [65], [68]). Both Hamill J and Ierace J expressed the view that the provisions merit review (at [62], [69]).

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • Under section 25D(2)(a) of the Crimes (Sentencing Procedure) Act 1999 (NSW), the maximum 25% guilty plea discount for an indictable offence requires that the plea is actually entered and accepted by a Magistrate in committal proceedings. An offer to plead guilty, even if recorded in a Case Conference Certificate, does not satisfy this requirement (at [37]).

  • A subsequent acceptance by the Crown in the District Court of terms identical to an earlier rejected Local Court offer does not retrospectively entitle an offender to the higher discount tier. The statutory discount turns on the actual timing of the plea, not the timing of the offer (at [37]).

  • The Court of Criminal Appeal distinguished Ke v R on the basis that the earlier decision addressed an administrative failure to record a plea offer actually made at the case conference, rather than a deliberate decision not to formally enter a plea (at [38]).

  • Division 1A of Part 3 of the Crimes (Sentencing Procedure) Act 1999 (NSW) was enacted to remove judicial discretion over plea discounts and replace it with a mandatory, timing-based regime. Courts cannot read the provisions expansively to soften that rigidity, even where the outcome is acknowledged to be unjust (at [43]-[44]).

  • All three judges remarked on the apparent structural disconnect between the committal stage and the sentencing stage: the statutory scheme obliges parties to record early plea offers in the Case Conference Certificate, yet those offers attract no sentencing benefit for charged offences unless a formal plea is entered in the Local Court. Both Hamill J and Ierace J indicated the scheme merits legislative review (at [62], [69]).

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 61I
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 22, 25A, 25B, 25C, 25D, 25E, 25F, Pt 3 Div 1A, 33
- Criminal Procedure Act 1986 (NSW), ss 55, 66, 70, 75, 77, 97
- Justice Legislation Amendment (Committals and Guilty Pleas) Act 2017 (NSW)
- Uniform Civil Procedure Rules 2005 (NSW) rr 42.14, 42.15

Cases
- Abbas Hijazi v Director of Public Prosecutions [2022] NSWSC 1218
- Black v R (2022) 107 NSWLR 225; [2022] NSWCCA 17
- Borri v R [2023] NSWCCA 166
- Camilleri v R [2023] NSWCCA 106; (2023) 308 A Crim R 52
- Carly Anne Coles v Director of Public Prosecutions [2022] NSWSC 960
- Green v R [2022] NSWCCA 230
- Ke v R [2021] NSWCCA 177
- R v Cardoso [2003] NSWCCA 15; (2003) 137 A Crim R 535
- R v Honeysett (No 2) (Sentence) [2023] NSWSC 103
- R v Rifai [2022] NSWDC 74
- R v Thomson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309
- SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362; [2017] HCA 34
- Tuxford v Director of Public Prosecutions [2023] NSWSC 1300