Published by Geoff Harrison | 19 July 2023
The term “reckless” is well known to the courts. In the case of Ke v R [2021] NSWCCA 177, Brereton J at [6-14], sets out the history and the general notion of what is “reckless” for the purposes of the criminal law. His Honour stated [at 14]:
The effect of this line of authority is that where the mental element of an offence is recklessness, the Crown must establish awareness of the possibility of the relevant result or circumstance, and that the accused proceeds with that awareness to perform the relevant act.
The judgment of Brereton J in Ke v R is set out below.
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Ke v R [2021] NSWCCA 177 (2 August 2021)
Court of Criminal Appeal
Supreme Court
New South Wales
Case Name:
Ke v R
Medium Neutral Citation:
[2021] NSWCCA 177
Hearing Date(s):
7 – 8 July 2021
Decision Date:
2 August 2021
Before:
Brereton JA at [1]; Adamson J at [80]; Bellew J at [221]
Decision:
Conviction appeal
(1) Refuse leave to appeal against the conviction.
Sentence appeal
(1) Leave to appeal against sentence is granted.
(2) The appeal is allowed.
(3) The sentence imposed in the District Court is quashed.
(4) In lieu thereof, the applicant is sentenced to imprisonment for 1 year and 10 months commencing on 24 June 2020 and expiring on 23 April 2022.
(5) Specify a non-parole period of 14 months imprisonment commencing on 24 June 2020 and expiring on 23 August 2021.
Catchwords:
CRIMINAL LAW — Appeals — Appeal against conviction — Applicant pleaded guilty to recklessly dealing with the proceeds of crime — circumstance where the Crown put back to the applicant an offer she had made pre-committal — whether the applicant’s plea was entered and continued in circumstances that gave rise to a miscarriage of justice — the applicant’s trial counsel and solicitors were experienced, competent and diligent — agreed facts were as favourable to the applicant as they could have been — the applicant understood the nature of the charge and strength of the crown case — no evidence to support the submission that the prosecuting authorities induced the applicant to plead guilty by maintaining the charge against her children — highly significant that when the applicant made the offer pre-committal it was not dependent on the withdrawal of charges against her children — leave to appeal against conviction refused
CRIMINAL LAW – Offences – Sentence – Dealing recklessly with the proceeds of crime – Whether failures on the part of counsel gave rise to a miscarriage of justice – Whether sentencing judge erred in assessing the objective criminality of the offending and gave disproportionate weight to agreed facts – Whether failure on the part of the sentencing judge to attribute appropriate weight to the applicant’s subjective circumstances – No such errors on the part of counsel – No such errors on the part of the sentencing judge
CRIMINAL LAW – Sentence – Complaint of unjustified disparity – Where differences in sentences imposed upon the applicant and her co-offender explained by the differences in the objective circumstances of the offending the respective roles played – No unjustified disparity
CRIMINAL LAW – Sentence – Complaint of manifest excess arising from the application of a 10% discount to reflect the applicant’s plea of guilty – Where the applicant had offered to plead guilty before being committed for trial – Where the Crown had rejected that plea – Where that plea was ultimately accepted – Applicant’s offer not recorded in case conference certificate – Requirement to do so overlooked – Consideration of legislative provisions creating the Early Appropriate Guilty Plea Scheme – Necessity to adopt a construction which did not result in manifest injustice being visited on the applicant – Where on a proper construction of the legislation a discount of 25% was warranted – Where the relevant negotiations had taken place prior to counsel who appeared on sentence being retained in the matter – Where Crown did not draw the attention of the sentencing judge to those negotiations – Error established in circumstances where the relevant issues were not raised by the Crown for the consideration of the sentencing judge – Applicant resentenced
STATUTORY INTERPRETATION - Necessity to interpret legislation in a way which avoided manifest injustice and which produced less hardship to the applicant
WORDS AND PHRASES – “offer recorded in a negotiations document”
Legislation Cited:
Crimes (Sentencing Procedure) Act 1999 (NSW), ss 5, 25A, 25B, 25C, 25D, 25E, 25F
Crimes (Sentencing Procedure) Amendment (Sentencing Options) Act 2017 (NSW)
Crimes Act 1900 (NSW), ss 4A, 5, 33, 61R, 93T, 193B, 193C
Criminal Appeal Act 1912 (NSW), s 5
Criminal Code Act 1995 (Cth), s 5.4
Criminal Procedure Act 1986 (NSW), ss 53, 55, 70, 72, 74, 75, 77, 130
Evidence Act 1995 (NSW), s 191
Justice Legislation Amendment (Committals and Guilty Pleas) Act 2017 (NSW), s 2
Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015 (NSW), cl 11
Migration Act 1958 (Cth), ss 501, 501CA
Migration Amendment (Character and General Visa Cancellation) Act 2014 (Cth), s 2(1)
Cases Cited:
AC v R [2016] NSWCCA 107
Afful v R [2021] NSWCCA 111
Angre v Chief of Navy (No 3) [2017] ADFDAT 2
Banat v R [2020] NSWCCA 321
Banditt v The Queen (2005) 224 CLR 262; [2005] HCA 80
Blackwell v R (2011) 81 NSWLR 119; [2011] NSWCCA 93
Borsa v The Queen [2003] WASCA 254
Charlesworth v R (2009) 193 A Crim R 300; [2009] NSWCCA 27
De Simoni v The Queen (1981) 147 CLR 383; [1981] HCA 31
Federal Commissioner of Taxation v Smorgon (1977) 16 ALR 721
Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49
House v The King (1936) 55 CLR 499; [1936] HCA 40
Hura v R (2001) 121 A Crim R 472; [2001] NSWCCA 61
Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
Kristensen v R [2018] NSWCCA 189
Kumar v The Queen [2014] VSCA 102
Lehn v R (2016) 93 NSWLR 205; [2016] NSWCCA 255
Liberti v The Queen (1991) 55 A Crim R 120
Lowe v The Queen (1984) 154 CLR 606; [1984] HCA 46
Magaming v The Queen (2013) 252 CLR 381; [2013] HCA 40
Maxwell v The Queen (1996) 184 CLR 501; [1996] HCA 46
McLean v R (2001) 121 A Crim R 484; [2001] NSWCCA 58
Meissner v The Queen (1995) 184 CLR 132; [1995] HCA 41
Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26
Public Transport Commission of New South Wales v J Murray-More (NSW) Pty Limited (1975) 132 CLR 336; [1975] HCA 28
R v Baker [2000] NSWCCA 85
R v Birks (1990) 19 NSWLR 677
R v Campbell [1997] 2 VR 585; (1995) 80 A Crim R 461
R v Carkeet [2009] 1 Qd R 190; [2008] QCA 143
R v Chiron [1980] 1 NSWLR 218
R v Coleman (1990) 19 NSWLR 467; 47 A Crim R 306
R v Collis (1989) 43 A Crim R 371
R v Cunningham [1957] 2 QB 396
R v Kennedy [2014] NSWSC 1921
R v Marchando (2000) 110 A Crim R 337; [2000] NSWCCA 8
R v Murphy [1965] VicRp 26; [1965] VR 187
R v Parkes [2004] NSWCCA 377
R v Pham [2005] NSWCCA 94
R v Pugh (2005) 158 A Crim R 302; [2005] SASC 427
R v Sagiv (1986) 22 A Crim R 73
R v Schelvis (2016) 263 A Crim R 1; [2016] QCA 294
R v SL [2004] NSWCCA 397
R v Stones (1955) 56 SR (NSW) 25
R v Thalari (2009) 75 NSWLR 307; [2009] NSWCCA 170
R v Toro-Martinez (2000) 114 A Crim R 533; [2000] NSWCCA 216
R v Van Hong Pham [2005] NSWCCA 94
Refaieh v R (2018) 272 A Crim R 245 [2018] NSWCCA 72
Ryan v R [2009] NSWCCA 183
Saik v R [2004] EWCA Crim 2936
Sauer v R [2006] NSWCCA 81
State of Victoria v R [2014] VSCA 311
The Queen v Olbrich (1999) 199 CLR 270; [1999] HCA 54
Thompson v Chief of Navy [2015] ADFDAT 1
TKWJ v The Queen (2002) 212 CLR 124; [2002] HCA 46
Tsiakas v R [2015] NSWCCA 187
Wilkes v R (2001) 122 A Crim R 310; [2001] NSWCCA 97
Wong v Director of Public Prosecutions (NSW) (2005) 155 A Crim R 37; [2005] NSWSC 129
Texts Cited:
New South Wales Bar Association Rules, r 33
Category:
Principal judgment
Parties:
Lie Ke (Applicant)
Regina (Crown)
Representation:
Counsel:
R Bonnici (Applicant)
G Newton (Crown)
Solicitors:
Vision Legal Pty Ltd (Applicant)
Office of Director of Public Prosecutions (Crown)
File Number(s):
2018/259332
Decision under appeal:
Court or Tribunal:
District Court
Jurisdiction:
Criminal
Date of Decision:
24 June 2020
Before:
Herbert DCJ
File Number(s):
2018/259332
HEADNOTE
[This headnote is not to be read as part of the judgment]
The applicant pleaded guilty to an offence of recklessly dealing with the proceeds of crime contrary to s 193B(3) of the Crimes Act 1900 (NSW). The substance of the case against the applicant was that she sold baby formula which had been stolen, in circumstances where she was reckless as to that fact. Prior to being committed for trial, the applicant had offered to plead guilty to that offence, but that offer was rejected by the Crown who indicated at that time that it would only accept a plea of guilty to the more serious offence created by s 193B(2) of knowingly dealing with the proceeds of crime. The applicant’s offer had not been recorded in the relevant documentation which was required to be filed pursuant to the Early Appropriate Guilty Plea Scheme. The Crown ultimately accepted the applicant’s offer but the sentencing judge was not made aware of the fact that such offer had been made. The applicant was sentenced to a term of imprisonment of 2 years and 3 months, with a non-parole period of 18 months’ imprisonment. That sentence incorporated a discount of 10% to reflect the applicant’s plea of guilty. The applicant sought leave to appeal against her conviction and sentence. In respect of the appeal against conviction, the applicant asserted that the circumstances in which the plea had been entered gave rise to a miscarriage of justice because:
(1) the terms in which the indictment was drafted rendered it bad in law;
(2) the plea of guilty which was entered was not attributable to a true consciousness of guilt of the applicant;
(3) the advice and conduct of her lawyer(s) was imprudent, inappropriate and/or incorrect, particularly as to the entry of the plea of guilty, and amounted to incompetence;
(4) she did not fully understand and/or appreciate the nature and complexity of the charge and the essential elements to which the plea of guilty was entered;
(5) the agreed facts were inconsistent with the elements of the offence and were signed without her being given full and proper advice at the relevant time;
(6) the plea of guilty was induced by intimidation and/or by unfair and improper undue pressure by the Director of Public Prosecutions;
(7) some of the actions and rulings of the judge who presided at the call-over of the matter were questionable and/or erroneous; and
(8) some of the actions and comments of the sentencing judge were questionable and/or erroneous.
The applicant pleaded the following as a further ground in support of the application for leave to appeal against her conviction:
(9) Any other reasons that may arise in the course of these proceedings and are deemed to be relevant to the Conviction Appeal.
In terms of her application for leave to appeal against sentence, the applicant relied on grounds pleaded in the following terms:
(1) her former defence counsel on sentence failed to ask for an adjournment to obtain further instructions and additional expert evidence on the medical and psychological nexus between the psychology report tendered and the state of mind of the applicant at the important time of the offending;
(2) her former defence counsel, in his written submissions, inappropriately and incorrectly elevated the applicant’s part in her overall offending;
(3) neither the applicant nor the sentencing court were made aware by the legal representatives of the applicant of the extreme hardship and trauma that may arise, and in fact has arisen, because of the full-time custodial sentence imposed upon the applicant’s visa status as a permanent resident;
(4) the sentencing judge failed to acknowledge, or even mention, the obvious traversing of the applicant’s plea of guilty on the crucial element of knowledge and/or recklessness based on the applicant’s statements;
(5) the sentencing judge gave too much weight and disproportionate weight to the agreed facts vis-à-vis the real role of the applicant’s conduct in the commission of this charge and related stealing offences;
(6) the sentencing judge failed to give appropriate consideration and weight to the subjective factors in favour of the applicant;
(7) the sentencing judge did not fully and properly consider all the alternatives to a full time term of imprisonment; and
(8) the sentencing judge imposed an excessive custodial sentence in the overall and prevailing special circumstances of this matter.
Held:
(1) Refusing leave to appeal against conviction;
(2) Granting leave to appeal against sentence, allowing the appeal, quashing the sentence imposed at first instance and imposing, in lieu thereof, imprisonment for 1 year and 10 months, with a non-parole period of 14 months.
In respect of the application for leave to appeal against conviction:
Per Adamson J (Brereton JA and Bellew J agreeing):
1. The ultimate question for the Court was whether the applicant had established a miscarriage of justice: at [185].
2. For the purposes of the charge against the applicant, the Crown was required to prove that the applicant was aware of the possibility that the goods were stolen, and decided to deal with them notwithstanding that possibility. Accordingly, the indictment was not bad: at [187].
3. The applicant had not demonstrated that she did not plead guilty through a consciousness of guilt: at [189].
R v Murphy [1965] VicRp 26; [1965] VR 187 referred to.
4. 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].
5. 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].
6. 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].
7. There was no error arising from anything said, either by the judge who presided at the call-over of the proceedings or by the sentencing judge: at [213]; [216].
Per Brereton JA:
1. The complaint as to the indictment, and the criticism of the terms in which the concept of recklessness was explained to the applicant by her former counsel, were misconceived. It is not an element of an offence of recklessly dealing with proceeds of crime that an accused knew that the subject matter were proceeds of crime. Where the mental element of an offence is recklessness, the Crown must establish awareness of the possibility of the relevant result or circumstance, and that the accused proceeded with that awareness to perform the relevant act: at [4]-[14].
Blackwell v R; (2011) 81 NSWLR 119; [2011] NSWCCA 93; Banditt v The Queen (2005) 224 CLR 262; [2005] HCA 80; R v Coleman (1990) 19 NSWLR 467; R v Cunningham [1957] 2 QB 396; R v Stones (1955) 56 SR (NSW) 35, considered; R v Campbell [1997] 2 VR 585; (1995) 80 A Crim R 461, not followed.
2. 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.
3. Statements attributed to the applicant in a medical report tendered on sentence confirmed the plea of guilty, and demonstrated that the applicant understood the offence to which the plea had been entered. There was no doubt that the plea reflected a settled intention and was voluntarily entered. There was no miscarriage of justice: at [24]-[45].
Per Bellew J:
1. Counsel who appeared for the applicant on sentence discharged his responsibilities in a careful, conscientious and diligent manner: at [223].
2. Advancing the submission of prosecutorial impropriety in the absence of evidence supporting it was, of itself, improper, and the submission should not have been made: at [224].
In respect of the application for leave to appeal against sentence:
Per Bellew J (Brereton JA and Adamson J agreeing):
1. To the extent that the applicant asserted incompetence on the part of counsel who appeared on sentence, it was necessary for her to demonstrate that a miscarriage of justice had arisen. Counsel had a wide discretion as to the manner in which proceedings are conducted: at [248]-[249].
R v Birks (1990) 19 NSWLR 677; TKWJ v The Queen (2002) 212 CLR 124; [2002] HCA 46 applied.
2. 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].
3. 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].
4. 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.
5. No statement attributed to the applicant had the effect of traversing her plea of guilty: at [282].
6. 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].
7. 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.
8. 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.
9. In circumstances where the applicant had offered, prior to being committed for trial, to plead guilty to an offence based upon recklessness, and given that the Crown, having initially rejected that offer, ultimately proceeded on an indictment alleging that offence, the applicant was entitled to a discount of 25% even though that offer was not recorded in the case conference certificate. In that regard the phrase “an offer recorded” in s 25E of the Crimes (Sentencing Procedure) Act 1999 (NSW) should be construed as meaning “an offer which was recorded or which ought to have been recorded”. Such an approach was consistent with principles of statutory construction and any other construction would, in the circumstances, have resulted in manifest injustice to the applicant: at [338]-[342].
Public Transport Commission of NSW v J Murray-More (NSW) Pty Limited (1975) 132 CLR 336; [1975] HCA 28; Federal Commissioner of Taxation v Smorgon (1977) 16 ALR 721; State of Victoria v R [2014] VSCA 311 applied.
Per Brereton JA:
1. In the current state of the law, the applicant’s deportation was not a permissible consideration on sentence, and this case was not an appropriate vehicle to reconsider that principle: at [48]-[51].
R v Pham [2005] NSWCCA 94, applied; Afful v R [2021] NSWCCA 111; AC v R [2016] NSWCCA 10, considered.
2. 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].
3. 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.
4. 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.
5. The allegation of incompetence of counsel was unfair. Far from incompetence, counsel was highly careful, capable and competent and used considerable care, skill and acumen to obtain the best realistic result for his client. It was regrettable that the allegation was ever made: at [77].
JUDGMENT
1. BRERETON JA: On 31 October 2019, the applicant Lie Ke, her partner Yueqi Ke, their adult son Jianfeng Ke (Jay) and their adult daughter Xiaoyu Ke (Rosemary), were committed for trial in the District Court at Parramatta, charged with knowingly dealing with the proceeds of crime (primarily, baby formula which had been stolen), contrary to Crimes Act 1900 (NSW) (“Crimes Act”), s 193B(2), for which the maximum penalty is fifteen years’ imprisonment. When arraigned on those charges before Herbert DCJ on 19 December 2019, all four accused entered pleas of not guilty. Subsequently, before the matter was set down for trial, at a “super call-over” before Hanley SC DCJ on 6 March 2020, the applicant and her partner indicated that they would plead guilty to the lesser charge of recklessly dealing with the proceeds of crime, contrary to Crimes Act, s 193B(3), for which the maximum penalty is ten years’ imprisonment. Those pleas of guilty were formally entered before his Honour on 27 March 2020, whereupon the proceedings against Jay and Rosemary were discontinued. On 24 June 2020, the applicant was sentenced by Herbert DCJ to a term of imprisonment of two years and three months, with a non-parole period of eighteen months commencing on 24 June 2020 and expiring on 23 December 2021. She now seeks leave, pursuant to Criminal Appeal Act 1912 (NSW), s 5(1)(b), to appeal against her conviction, and also, pursuant to s 5(1)(c), to appeal against the sentence.
THE CONVICTION APPEAL
2. The substance of the charge to which the applicant pleaded guilty was that she purchased baby formula, from “rogue suppliers” who had stolen it, and then on-sold it, in circumstances where she was reckless as to whether it had been stolen. There was a single ground of appeal in the application for leave to appeal against conviction, albeit with nine “particulars”:
“Leave to appeal against the Plea of Guilty and Conviction of the Applicant/Appellant on the basis the Plea of Guilty was entered and continued in circumstances and occurrences that give rise to a MISCARRIAGE OF JUSTICE including a lack of INTEGRITY of the Plea, on the basis of one or more of the following Grounds:
(1) The wording of the Indictment as to the charge is bad in law in that the element of knowledge as to the baby powder being stolen must be actual and cannot be reckless in the context and wording of the charge to which the plea of guilty was entered.
(2) The plea of guilty entered was not attributable to a true consciousness of guilt of the Applicant.
(3) The advice and conduct of the Applicant’s Lawyer(s) was imprudent, inappropriate and/or incorrect, particularly as to the entry of the plea of guilty, and amounting to incompetence of Counsel.
(4) The Applicant did not fully understand/and or appreciate the nature and complexity of the charge and the essential elements to which the plea of guilty was entered.
(5) The Agreed Facts are inconsistent with the elements of the offence and were signed by the Applicant without full and proper advice and instructions at the appropriate and relevant time.
(6) The plea of guilty by the Applicant was induced by intimidation and/or by unfair and improper undue pressure by the Prosecuting Authorities.
(7) Some of the actions and rulings of the Presiding Judge on 27 March 2020, were questionable and/or erroneous.
(8) Some of the actions and comments of the Sentencing Judge on 24 June 2020, were questionable and/or erroneous.
(9) Any other reasons that may arise in the course of these proceedings and are deemed to be relevant to the Conviction Appeal.”
3. The course of the proceedings culminating in the applicant’s plea of guilty and the sentencing proceedings, and the evidence, including the cross-examination which occupied most of the two days over which the appeal was heard in this Court, are set out in the judgment of Adamson J, which I have had the benefit of reading in draft. I agree with the disposition of the conviction appeal which her Honour proposes, and with her Honour’s conclusions on each of the “particulars” of the ground of appeal, but I wish to add my own reasons.
4. Particular (1) is somewhat distinct from others, in that it complains that the indictment to which the applicant pleaded was “bad in law in that the element of knowledge as to the baby powder being stolen must be actual and cannot be reckless”. This complaint is entirely misconceived. Crimes Act, s 193B, provides as follows:
193B Money laundering
(1) A person who deals with proceeds of crime—
(a) knowing that it is proceeds of crime, and
(b) intending to conceal that it is proceeds of crime,
is guilty of an offence.
Maximum penalty—imprisonment for 20 years.
(2) A person who deals with proceeds of crime knowing that it is proceeds of crime is guilty of an offence.
Maximum penalty—imprisonment for 15 years.
(3) A person who deals with proceeds of crime being reckless as to whether it is proceeds of crime is guilty of an offence.
Maximum penalty—imprisonment for 10 years.
(4) It is a defence to a prosecution for an offence under this section if the defendant satisfies the court that the defendant dealt with the proceeds of crime to assist the enforcement of a law of the Commonwealth, a State or a Territory.
5. It is not an element of an offence of recklessly dealing with proceeds of crime under s 193B(3) that the accused knows that the subject matter are proceeds of crime; that is the very distinction between s 193B(2) (knowingly dealing with proceeds of crime) and the lesser offence in s 193B(3). While it is an element of both offences that the subject matter is in fact proceeds of crime, the offence under s 193B(3) requires only that the accused be aware of the possibility that that is so.[1] In this case, the baby formula was proceeds of crime, because it was stolen (by “rogue suppliers”, from supermarkets). The fact that the basis for the allegation that the baby formula was proceeds of crime was that it had been stolen does not mean that the prosecution must prove that the accused knew that it was stolen. As explained in the judgment of Adamson J, while the Crown would have had to prove that the baby formula was stolen, it would not have had to prove that the applicant knew it had been stolen, but only that, being aware of the possibility that it was stolen, she proceeded to deal with it. It may be that malady which the offences in s 193B were intended to remedy was “money-laundering”, as the heading to the section suggests; but that does not mean that it cannot be used to capture other conduct that falls within its terms.
6. It is convenient at this point to deal with the submission made on behalf of the applicant in connection with particular (4), that insofar as the charge was explained to her in terms of it involving “a possibility” that the baby formula was stolen, that explanation was inaccurate, and that a “possibility” was insufficient. According to Mr Shukoor of counsel, who appeared for the applicant on 6 March 2020 and at the sentencing hearing on 24 June 2020, he explained “recklessly” in terms of “being aware of the possibility that the formula was stolen, and proceeding nonetheless”. Mr Bonnici, who appeared for the applicant before us, criticised this, but the criticism is misconceived: Mr Shukoor’s description accords with the law. “Recklessness” as a mental element of a criminal offence is most often encountered in the context of the result of conduct (such as the infliction of harm of various degrees), but it also occurs, as in s 193B(3), in the context of the circumstances in which conduct takes place. Much of the law has been stated in the context of offences involving recklessness as to the result (such as wounding or inflicting bodily harm), in which context there have been statutory amendments, but those amendments do not affect the general notion of what is “reckless” for the purposes of the criminal law.
7. In R v Coleman, Hunt J (as he then was), in the context of the reference to “reckless” in the then definition of “malicious” in Crimes Act, s 5, said (emphasis added):[2]
“... in statutory offences other than murder, the degree of recklessness required in order to establish that an act was done maliciously was a realisation on the part of the accused that the particular kind of harm in fact done (that is, some physical harm – but not necessarily the degree of harm in fact so done) might be inflicted (that is, may possibly be inflicted) yet he went ahead and acted.”
8. This is consistent with a long line of authority, in Australia and in England. In R v Stones, this Court said (emphasis added):[3]
“Generally speaking, malice aforethought means only intention, but the combined effect of s. 5 and of s. 18 of the Crimes Act 1900, in New South Wales, is to set up exceptional cases of constructive murder where it includes states of mind other than an intention to kill. ... The important thing is not the desire of consequence, i.e. motive or intent, but merely foresight of consequence which is the common factor to intention and recklessness. ... If [a person] applied his mind to the consequences, and without concluding that they would probably happen (which is criminal intent) his state of mind was that he did not care whether they happened or not, that is recklessness. The task of a jury is to infer to what extent the accused appreciated the consequences of his act.”
9. In R v Cunningham, the English Court of Criminal Appeal approved the following as an accurate statement of the law (emphasis added):[4]
“In any statutory definition of a crime, malice ... [requires] either:
(1) An actual intention to do the particular kind of harm that in fact was done; or
(2) recklessness as to whether such harm should occur or not (ie, the accused has foreseen that the particular kind of harm might be done and yet has gone on to take the risk of it).”
10. In a context somewhat closer to the present, where the element of “recklessness” was not concerned with the result but with the circumstances, the High Court, in Banditt v The Queen,[5] was concerned with the meaning of “reckless” in Crimes Act, s 61R, which provided that a person who had sexual intercourse with another without the consent of the other person and who was reckless as to whether the other person consented was to be taken to have known that the other person did not consent. Gummow, Hayne and Heydon JJ said that there was a need to accommodate the term “reckless” as it appeared in this provision with the requisite mental element, that is, knowledge of absence of consent,[6] and considered that the following comments of Professor Sir John Smith were apposite (emphasis added):[7]
“If D is aware that there is any possibility that P is not consenting and proceeds to have intercourse, he does so recklessly.”
11. Their Honours rejected a submission that proceeding with an awareness of a risk of non-consent could not suffice without the “discrete mental state” of, “even if I know, I would continue. It does not matter to me”.[8] In other words, proceeding with awareness of the possibility that the other person had not consented sufficed.
12. In Blackwell v R,[9] this Court refused to follow the decision of the Victorian Court of Appeal in R v Campbell,[10] which had held that the test required the accused to think that injury would probably, as distinct from possibly, result, and that conduct is relevantly reckless if there was foresight on the part of the accused of the probable consequences of his actions and indifference as to whether or not those consequences would occur. Declining to follow that approach, Beazley JA, with whom James J and Hall J agreed, said (emphasis added):[11]
“In my opinion, this Court should not follow the Victorian decision of Campbell. That decision is inconsistent with authority in the High Court, New South Wales and in England. The Attorney General expressly referred to the test for recklessness stated by Hunt J in Coleman when commenting upon the proposed legislative changes to s 35. Accordingly, in this case, the jury should have been directed in terms that if the appellant was to be found guilty on the alternative count, they had to be satisfied that he realised that by thrusting the glass into Mr Ward's face, it was possible that grievous bodily harm, that is really serious injury, would be inflicted and yet went ahead and acted.”
13. Although subsequent amendments have had the effect that, in the context of the offence there under consideration (being maliciously inflict grievous bodily harm with intent, under Crimes Act, s 33(1)(b)), what must be foreseen is the possibility of actual bodily harm as distinct from really serious harm, they do not affect that what must be foreseen is no more than a possibility, as distinct from the probability, of such harm.
14. The effect of this line of authority is that where the mental element of an offence is recklessness, the Crown must establish awareness of the possibility of the relevant result or circumstance, and that the accused proceeds with that awareness to perform the relevant act. By circumstance, I refer to, for example, the absence of consent in a sexual assault case, and, in the present case, that the subject matter was proceeds of crime. Thus, in the present case, if the applicant was aware that there was any possibility that the baby formula was stolen, and proceeded to deal with it, she did so recklessly. Mr Shukoor’s explanation, that recklessness involved “being aware of the possibility that the formula was stolen, and proceeding nonetheless”, accurately captured this.
15. I turn then to why I am unable to accept the applicant’s fundamental contention that there was a miscarriage of justice by reason of circumstances affecting the “integrity of the plea”. The principles which guide courts of criminal appeal when they are invited to quash convictions which have been recorded following pleas of guilty were authoritatively stated by the High Court in Meissner v The Queen, as follows (citations omitted):[12]
“A person charged with an offence is at liberty to plead guilty or not guilty to the charge, whether or not that person is in truth guilty or not guilty. An inducement to plead guilty does not necessarily have a tendency to pervert the course of justice, for the inducement may be offered simply to assist the person charged to make a free choice in that person’s own interests. A court will act on a plea of guilty when it is entered in open court by a person who is of full age and apparently of sound mind and understanding, provided the plea is entered in exercise of a free choice in the interests of the person entering the plea. There is no miscarriage of justice if a court does act on such a plea, even if the person entering it is not in truth guilty of the offence. The principle is stated by Lawton LJ in R v Inns:
‘The whole basis of a plea on arraignment is that in open court an accused freely says what he is going to do; and the law attaches so much importance to a plea of guilty in open court that no further proof is required of the accused’s guilt. When the accused is making a plea of guilty under pressure and threats, he does not make a free plea and the trial starts without there being a proper plea at all. All that follows thereafter is, in our judgment, a nullity.’
It may not be strictly accurate to describe what follows as a nullity, but it is certainly liable to be set aside and a new trial ordered. If a plea of guilty is entered by the person charged in purported exercise of a free choice to serve that person’s own interests, but the plea is in fact procured by pressure and threats, there is a miscarriage of justice. In such a case, the court is falsely led to dispense with a trial on the faith of a defective plea. The course of justice is thus perverted.”
16. It is for an appellant to establish, on the balance of probabilities, that a miscarriage of justice has occurred,[13] and such a finding is not lightly to be made. As Kirby P observed in Liberti v The Queen:[14]
“For good reasons, courts approach attempts at trial or on appeal in effect to change a plea of guilty or to assert a want of understanding of what was involved in such a plea with caution bordering on circumspection. This attitude rests on the high public interest in the finality of legal proceedings and upon the principle that a plea of guilty by a person in possession of all relevant facts is normally taken to be an admission by that person of the necessary legal ingredients of the offence”
17. In this respect, “[t]he presence or absence of a genuine consciousness of guilt on the part of the accused may well be relevant, but will not be decisive” in determining whether a miscarriage of justice has occurred.[15] The plea of guilty itself is a cogent admission of the ingredients of the offence.[16]
18. The appellant’s case was founded on the proposition, sourced in Meissner, that “[i]f a plea of guilty is entered by the person charged in purported exercise of a free choice to serve that person’s own interests, but the plea is in fact procured by pressure and threats, there is a miscarriage of justice”.[17] However, as the context in which that passage appears, and other cases, illustrate, it is not every pressure that will have that result. Thus, in Maxwell v The Queen, it was emphasised that, normally, a plea of guilty will constitute an admission of all the essential elements of the relevant offence, subject to the qualification that:[18]
“The plea of guilty must however be unequivocal and not made in circumstances suggesting that it is not a true admission of guilt. Those circumstances include ignorance, fear, duress, mistake or even the desire to gain a technical advantage.”
19. The reference to duress, as distinct from mere “pressure”, is significant, and more aptly captures the type of “vitiating factor” that must be demonstrated. In Kumar v The Queen,[19] the Victorian Court of Appeal summarised the position following Meissner and Maxwell, as follows:
“(a) A true admission of guilt of an offence means an admission freely made of an offence of which the accused is truly guilty.
(b) An admission of guilt is not freely made and, therefore, is not a true admission of guilt if the accused’s exercise of free will to make or withhold the admission is overborne or otherwise substantially compromised by factors such as fraud, duress, intimidation, improper inducement or misrepresentation.
(c) Likewise, an admission of guilt, even if freely made, may not be a true admission of guilt if it results from a mistake as to the nature of the admission, including without limitation, a mistake as to the nature of the offence admitted.
(d) If, however, an admission of guilt is freely made, the fact that it might have been motivated by hope or expectation of forensic, sentencing or other technical advantage will not deprive it of the quality of a true admission of guilt unless it be shown that the accused did not intend thereby to accept guilt for an offence of which he believed himself to be guilty.”
20. Proposition (d) needs to be understood as referring to a misconceived hope or expectation of the kind mentioned. It should not be understood as detracting from the proposition that “a person may plead guilty upon grounds which extend beyond that person's belief in his guilt, and the entry of a plea of guilty upon such grounds nevertheless constitutes an admission of all the elements of the offence, and a conviction entered upon the basis of such a plea will not be set aside on appeal unless it can be shown that a miscarriage of justice has occurred”, which “will normally only arise where the accused person did not understand the nature of the charge, or did not intend by his plea to admit his guilt of it”.[20]
21. To the catalogue of vitiating factors referred to in Maxwell and in Kumar might be added “inappropriate advice” (although mere erroneous advice by defence counsel as to prospective penalty is unlikely to be sufficient to impugn the integrity of a plea of guilty).[21]
22. With the recent reforms of the committal procedure, plea-bargaining is institutionalised. Case conferences are mandatory, except where an accused person is not legally represented.[22] “The principal objective of the case conference is to determine whether there are any offences to which the accused person is willing to plead guilty”.[23] Before participating in a case conference, an accused person’s lawyer is obliged to explain “the effect of the scheme for the sentencing discount applied under Part 3 of the Crimes (Sentencing Procedure) Act 1999 for a plea of guilty”.[24]
23. The environment of criminal proceedings is stressful for many, if not all, accused.[25] With the institutionalisation of plea-bargaining, case conferences and other settings in which such bargaining might take place will inevitably involve the application of “pressure”, of a kind, on an accused person, to plead guilty. The combination of the opportunity to plead guilty and obtain a discount, coupled with the decreasing discount available if the opportunity is allowed to pass, provides an incentive – and thereby creates “pressure” – to plead guilty. The context of plea-bargaining, at a case conference or otherwise, where there is a substantial incentive for a plea of guilty which will be lost if not availed of in a timely manner, inevitably places a form of pressure on an accused person, through the combination of the incentive and its reduction if a plea is not made early. However, that is not improper pressure; indeed, it is the purpose of the legislation to encourage early pleas of guilty, and to create incentives – and commensurate pressures – to do so.
24. At the case conference on 28 August 2019, at which the applicant, her partner, Jay, and Rosemary were represented by the same solicitor, the ODPP offered to accept a plea from the applicant to the charge under s 193B(2) (knowingly deal with proceeds of crime), and a plea from each of the applicant’s partner, Jay, and Rosemary to charges under s 193B(3) (recklessly deal with proceeds of crime). Their solicitor informed the ODPP that more time was needed to reply to the offer. The ODPP confirmed the offer by email on 5 September 2019, attaching draft facts for the accused persons other than the applicant. The offer to each accused was not expressed to be conditional on any one or more of the others accepting the offer to them. Mr Awada, solicitor, replied on 6 September 2019, stating “I do envision that there are very real prospects of resolving these matters”, and foreshadowing an application for a further adjournment “for consideration of the attached facts and my clients’ respective positions.” The committal proceedings were adjourned accordingly.
25. Next, on 8 October 2019, Mr Awada sent an email to the ODPP stating that the applicant, and her partner, were each willing to plead guilty to offences contrary to s 193B(3) (recklessly deal with proceeds of crime), but he was instructed that the matters against Jay and Rosemary were to be committed for trial. This is most significant: the applicant was willing to plead guilty to an offence under s 193B(3) (recklessly deal with proceeds of crime), in the context that the cases against her children would proceed to trial.
26. The ODPP responded on the same day, at 8:09pm, that the Officer-in-Charge (OIC) had indicated, provisionally, that she was likely to accept a plea to the extant s 193B(2) (knowingly deal with proceeds of crime) charge in respect of the applicant, and a plea to a s 193B(3) (recklessly deal with proceeds of crime) charge in respect of the applicant’s partner, and that if such pleas were entered, the charges against the two children could be withdrawn. Mr Awada replied a few minutes later, at 8:15pm, stating:
“I will obtain instructions regarding [the applicant] pleading to the current charge and [her partner] pleading to the reckless offence.
In saying that, and I know this is subject to further consideration, I would be submitting that charges against the children be withdrawn.”
27. On 9 October 2019, Mr Awada sent a further email to ODPP, stating that he would seek a further adjournment of the matter on 10 October 2019, to:
“1. Confirm [the applicant’s] plea of guilty to the current charge;
2. Confirm [her partner’s] plea of guilty to the reckless offence; and
3. Potential [sic] allow you to confirm whether the charges against the children can be withdrawn.”
28. On 17 October 2019, the ODPP submitted proposed statements of agreed facts in relation the applicant and her partner to Mr Awada, under cover of an email which stated that in relation to the applicant, the Crown would accept a plea of guilty to the extant charge under s 193B(2); in relation to the applicant’s partner, that the Crown would accept a plea of guilty to a charge under s 193B(3) of recklessly dealing with proceeds of crime; and that on the basis that such pleas were entered and the attached statements of facts were agreed, the Crown would withdraw the charges against Jay and Rosemary. This offer formally confirmed the indication that had been given by the OIC on 8 October 2019.
29. On 30 October 2019, Mr Awada informed ODPP that his instructions were that each of the accused persons would maintain a plea of not guilty, and that the matters would be committed for trial. The case conference certificate was then drafted by the ODPP, and signed on its behalf, on 30 October 2019. In respect of the applicant, it certified that the prosecution during the case conference had informed the defence that the only charge in respect of which the Crown would accept a plea of guilty would be an offence under s 193B(2) (knowingly dealing with proceeds of crime). It did not refer to the applicant’s 8 October 2019 offer to plead guilty to an offence under s 193B(3).
30. On 31 October 2019, the applicant, her partner, Jay, and Rosemary were committed to the District Court at Parramatta for trial on charges under s 193B(2) (knowingly dealing with proceeds of crime), and the matter was listed for arraignment on 28 November 2019. The arraignment was adjourned, ultimately to 19 December 2019, when all four accused pleaded not guilty to a charge under s 193B(2) (knowingly dealing with proceeds of crime) before Herbert DCJ. Because of their anticipated length, the proceedings were not immediately set down for trial, and in due course were listed in the “super-callover” to be held on 6 March 2020.
31. Immediately before the super-callover, on 5 March 2020 at 11:04am, following a conference with the applicant, her counsel Mr Shukoor – who was acting for her alone, her partner and the children now being separately represented – raised with the ODPP the possibility that she might plead guilty to a lesser offence, being an offence contrary to s 193C(1) (dealing with property suspected of being proceeds of crime), for which the maximum penalty is imprisonment for five years. Again, this was not conditioned on or attached to any outcome so far as the charges against the children were concerned.
32. At the super-callover, the prosecution offered to accept pleas of guilty from each of the applicant and her partner to offences under s 193B(3) (recklessly deal with proceeds of crime), and stipulated that if that were accepted, the charges against the children would be discontinued. The applicant instructed Mr Shukoor to accept the offer. I accept Mr Shukoor’s evidence that the applicant was pleased to receive that offer, which is entirely consistent with her having made that offer at the committal stage, and having discussed it in conference the previous day. As he recorded in his email of that date, reporting on the outcome, she told him that she had always been open to pleading guilty to the charge based on recklessness. That accords with the plea offer of 8 October 2019. I am satisfied that the notion of recklessness (as described above), and the difference between it and “knowingly”, was properly and sufficiently explained to the applicant by Mr Shukoor, as he testified. Moreover, the applicant in her own evidence deposes to having it explained to her that “she ought to have known” that the baby formula was stolen.
33. There was a strong prosecution case on recklessness, and at least a substantial risk that if the matter went to trial, the applicant would be convicted of the more serious offence under s 193B(2) (knowingly deal with proceeds of crime). In this respect, it was particularly significant that there was an intercepted telephone conversation between the applicant and one of the “rogue suppliers”, in which the supplier referred to the presence of police at a location where it was proposed to deliver baby formula to the applicant; and when this conversation was put to the applicant in her ERISP, she did not dispute it, and offered no explanation for it. Moreover, before us, she gave this evidence:[26]
“Q. I think you instructed your lawyer Mr Awada that you were willing to plead guilty to a charge of recklessly deal with proceeds of crime in October 2019 that’s what you told him to communicate to the DPP, you agree or disagree?
A. INTERPRETER: I was reckless but I didn’t know that it was proceed of crime.”
34. In the light of those matters, there were significant benefits for herself, her children, and her family in her pleading guilty: first, there was a high risk of conviction in any event at least of an offence under s 193B(3); secondly, a plea of guilty would avoid the costs to her family of the great expense of a defended trial, which would still likely result in her conviction at least of the lesser offence under s 193B(3); thirdly, she would be entitled to a discount on the sentence which would otherwise be imposed on the lesser charge, and would have at least a chance of avoiding a fulltime custodial sentence; fourthly, she would avoid the risk of conviction on the more serious charge under s 193B(2); and fifthly, her children would be exonerated. Before us, she agreed to much of this:[27]
“Q. ... you said a little while ago that you had been - or when you decided to plead guilty, you had been under pressure for some time, is that right?
A. INTERPRETER: Yes.
Q. Had that pressure existed since the time that you had been arrested?
A. INTERPRETER: Yes.
Q. At the time that you decided to plead guilty did you think that if you went to trial before a jury there was a risk that you would be found guilty?
A. INTERPRETER: Yes.
Q. And did you think that if you went to trial there was a risk that you would be found guilty of the more serious charge of knowing the proceeds were stolen rather than recklessness?
A. INTERPRETER: I’m sorry I got confused.
Q. Did you think that if you went to trial there was at least the risk that a jury would convict you of the more serious charge of knowing actually knowing the proceeds were stolen rather than being reckless?
A. INTERPRETER: I do not know.
Q. Did you think that if you went to trial and were convicted you would probably get a sterner or longer sentence than if you pleaded guilty?
A. INTERPRETER: I don’t know I never thought about it.
Q. Did you think that if you went to trial it would be much more expensive for you and your family than if you pleaded guilty?
A. INTERPRETER: Yes for sure we cannot afford it.
Q. Did you think that it would be a benefit for your son and daughter if you pleaded guilty because the charges against would be dropped?
A. INTERPRETER: Yes.
Q. Did you discuss with your son and your daughter and your partner whether you would plead guilty?
A. INTERPRETER: Well on the last stage I did make my own decisions because even though they told me and I think I just want to end it quickly because we don’t have money.”
35. Having obtained the applicant’s instructions, Mr Shukoor informed Hanley SC DCJ that there had been “in principle agreement in relation to [his] client and that will, without going into detail, have a cascading effect on everyone else”. The matter was stood over to 27 March 2020, to permit agreed facts to be negotiated. However, what is presently important is that the applicant had by now decided to plead guilty (to the lesser offence), and that this was entirely consistent with the offer she had made to do so on 8 October 2019. Moreover, and contrary to the submission now made on her behalf, it was not inconsistent with the plea of not guilty to an offence under s 193B(2) which had been entered upon arraignment in December 2019: it was entirely consistent with her denial that she knew that the baby formula she acquired from the “rogue suppliers” was stolen, while involving acceptance that she was aware of the possibility that it was stolen.
36. There was no suggestion of any reservation, let alone a change of mind, in that respect, between then and the adjourned hearing on 27 March 2020, when the plea was formally taken. The outstanding issues were not about the plea, but about the agreed facts, and in particular the quantities of baby formula and money involved.
37. On 26 March 2020, Mr Shukoor proposed that on 27 March 2020, there be a further adjournment, to permit negotiations about the agreed facts to be finalised. There was no reason for contemplating an adjournment, to finalise the agreed facts, unless there was to be a plea of guilty. The fact that an adjournment, rather than a trial date, was sought, confirms that it remained the applicant’s intention to plead guilty. When the judge, entirely properly, indicated that a further adjournment would not be granted and the matter would be set down, if not for sentence on a plea of guilty, then for trial, that imposed some pressure – but not improper pressure – to reach agreement on the facts. At 10.39am, in response to an email from Mr Park, the solicitor who was appearing at court that morning, reporting, “Judge just said that if it’s not agreed today, we will be getting trial dates”, Mr Shukoor sent an email to his instructing solicitor Ms Chand:
“Sherleen, please advise them that the facts have been heavily negotiated in their favour and so have the charges. I believe they already understand this.
Please inform her of the choice presented to her by the Judge. She should feel no pressure and can go to trial is she prefers.
As far as I am able to tell, the dpp solicitor has made all the concessions he is able.”
38. Ms Chand conveyed to the applicant “that she should feel no pressure to accept the facts if they are not agreed by her and again it was open for her to take the matter to trial”.[28]
39. No doubt the rush to get to court – in circumstances that, in the context of the recently imposed COVID-19 lockdown, the applicant (and the other accused) had not attended court at the outset – would have given an impression of a hurry. No doubt the combination of the judge’s insistence that the matter would be set down for trial if there were not a plea of guilty that day, and the prosecutor’s insistence that the facts be agreed before he would accept a plea, created an environment of pressure to reach agreement on the facts. No doubt the applicant was under pressure, as she had been from the time of her arrest, and was emotional. However, none of that amounts to illegitimate or improper pressure; it is no more than the inevitable concomitant of being a defendant in criminal proceedings. I can readily see that in some circumstances, the use of a threat of proceedings against a defendant’s child as leverage to secure a plea might be illegitimate. However, in the present context it was not: the applicant had originally, on 8 October 2019, offered to plead guilty to an offence under s 193B(3) quite independently of the outcome of the proceedings against her children, and on the basis that they would be committed for trial; I accept Mr Shukoor’s evidence that he did not recall the applicant ever expressing concerns to him about the matters proceeding to trial against the children; and there is no evidence of any discussion between her and any member of her family in which reference was made to the benefit that would accrue to the children in that way if she were to plead guilty.
40. On 27 March 2020, the applicant gave written instructions for the plea of guilty, after they were translated to her in Mandarin. She, and her partner, were arraigned on a fresh ex officio indictment:
“For that they between 17 November 2017 and 22 August 2018 in Carlingford and elsewhere in the State of New South Wales did engage in transactions with proceeds of crime, being stolen baby formula, in circumstances where Yueqi Ke and Lie Ke were reckless as to whether the baby formula was the proceeds of crime.”
41. After the indictment was translated to the applicant in Mandarin by an interpreter, she, and her partner, pleaded guilty, and the proceedings were set down for sentence on 24 June 2020.
42. Between the plea of guilty and the sentence hearing on 24 June, there was no indication of any reservation about the plea of guilty. On 3 June 2020, the applicant was seen by Mr Awit, a registered psychologist, for the purposes of providing a report for the proceedings on sentence. The history he elicited included the following (emphasis added):
“Ms. Ke advised that she understood that it was reckless not to question where the products were coming from, and that from time to time she did wonder; but given her physical condition as well as her ongoing stressors, she was just happy that she did not have to go herself to get the products. Ms. Ke further advised that she did not give much thought to where the products were picked up from. Ms. Ke advised that she purchased the products from wherever the sellers felt most comfortable.”
43. Before us, the applicant was cross-examined about the first sentence of the passage extracted above, and maintained that she did not appreciate at the time of the offending conduct that she was reckless as to whether the baby formula was stolen, that being a realisation she had been brought to only as a result of the proceedings. Although I found the applicant generally a credible witness who made concessions adverse to her interest, and whose lack of recollection of some of what was explained to her on 6 March 2020 and on other occasions is likely to be attributable to the inevitable pressures and emotions of the situation, her reported statement to Mr Awit “that from time to time she did wonder” where the cheap baby formula was coming from is confirmatory that she was aware of the possibility that it was stolen, consistent with her plea of guilty to an offence under s 193B(3). In any event, it demonstrates that she understood what she had pleaded guilty to.
44. Thus, the applicant’s intention to plead guilty to an offence under s 193B(3) (recklessly dealing with proceeds of crime) had been settled by, at the latest, the super-callover on 6 March 2019, more than a fortnight before it was formally entered on 27 March 2020, and reflecting an intention which the applicant had harboured since at least 8 October 2019 when she first offered to do so. It was thereafter adhered to over a period of two months. After 6 March 2020, the outstanding issues concerned the contents of the agreed facts, assuming a plea of guilty – not whether there was to be a plea of guilty. The plea was consistent with her consistent denial that she knew that the baby formula was proceeds of crime, but her acceptance that she had been reckless as to that circumstance. There was no suggestion of any reservation about the plea (as distinct from dispute about the facts on which she would be sentenced) between 6 March 2020 and 27 March 2020. Nor was there any suggestion of any such reservation between 27 March 2020 and the proceedings on sentence on 24 June 2020.
45. In my view, there is no doubt that this was a voluntary plea to an offence of which the applicant realised, on proper advice, that she was likely to be convicted. There was no such vitiating factor as might have resulted in a miscarriage of justice. The applicant had a well settled intention, of her own volition, and for good reason, to plead guilty to an offence under s 193B(3).
46. For those reasons, in addition to the reasons given by Adamson J, leave to appeal against the conviction should be refused.
THE SENTENCE APPEAL
47. The facts of the offending, the applicant’s subjective circumstances, the course of the sentencing proceedings, and the grounds of appeal are set out in the judgment of Bellew J, which I have had the benefit of reading in draft. I agree with his Honour’s conclusions in respect of each of the grounds of appeal, and with his Honour’s reasons for them. I wish however to provide my own additional reasons in respect of three issues.
48. First, ground 12 complained that “the Applicant nor the Court was made aware by the Legal Representatives of the Applicant of the extreme hardship and trauma that may arise and in fact has arisen because of the full-time custodial sentence imposed upon the Applicant's visa status as a permanent resident”. As Bellew J explains, the applicant herself drew this matter to the attention of the Court in her written letter of apology. However, as Mr Shukoor rightly explained, the jeopardy to her visa was not, in the circumstances, a permissible consideration. In New South Wales, the possibility or actuality of deportation is not a relevant factor in sentencing.[29] In R v Pham, this Court said:[30]
“It is established principle that the fact of deportation is irrelevant as a sentencing consideration, it being a matter exclusively for the Executive Government: R v Jap NSWCCA 20 July 1998 and R v Latumetan and Murwanto [2003] NSWCCA 70 . Moreover the High Court has held that a foreign national should receive the benefit of being eligible for release on parole: Shrestha v R [1991] HCA 26; (1991) 173 CLR 48 at 71 per Deane, Dawson and Toohey JJ.”
49. In AC v R , this Court said:[31]
“It appears that the applicant is at risk of deportation once his sentence is served. This was not a relevant consideration on sentence, even in fixing the applicant’s non-parole period. Deportation is a matter for the Executive Government (see R v Van Hong Pham [2005] NSWCCA 94 referring to Shrestha v R [1991] HCA 26; (1991) 173 CLR 48).”
50. It might be thought that it is anomalous that the Court does not take into account an adverse extra-curial consequence that will flow for an offender, and the New South Wales approach is not universal; differing practices in other jurisdictions were summarised by Fraser JA in R v Schelvis,[32] and reviewed by this Court in Kristensen v R,[33] and most recently in Afful.[34]
51. These issues of principle were not argued before us. Moreover, although the Court was informed that on 21 July 2020, following the sentence proceedings, the Department of Home Affairs advised the applicant that, in light of the sentence imposed, a decision had been made to cancel her visa – presumably on “character” grounds pursuant to Migration Act 1958 (Cth) (“Migration Act”), s 501(3A), which provides for the mandatory cancellation of a person’s visa if they have a substantial criminal record (defined to include a term of imprisonment of twelve months or more), the Court was not informed whether she had made representations to the Minister requesting a revocation of the cancellation under Migration Act, s 501CA, which provides that the Minister may revoke a visa cancellation based on representations made by the person subject of the cancellation and was introduced into the Migration Act by the same amendment as introduced s 501(3A).[35] For those reasons, like Afful, this case is not a suitable vehicle to reconsider the longstanding practice in New South Wales regarding the irrelevance of deportation on sentence.[36]
52. Secondly, ground 14 complained that “the Sentencing Judge gave too much weight and disproportionate weight to the Agreed Facts vis-a-vis the real role of the Applicant's conduct in the commission of this charge and related stealing offences”. It is with respect difficult to understood what is the contention that underlies this ground. If, as appears to be the case, it is that rather than relying on facts which had been agreed between the parties for the purpose of sentencing on a plea of guilty, the sentencing judge should have gone behind them and conducted some further inquiry into the facts, it is entirely misconceived. It would have been erroneous for her Honour to sentence the appellant on any other basis than the agreed facts, at least without affording the parties notice that that course was under consideration, and an opportunity to address it.
53. Thirdly, I turn then to the issue on which, like Bellew J, I consider that the appeal must succeed, being the amount of the discount to which the applicant was entitled for her plea of guilty. As has been noted, by email sent to ODPP on 8 October 2019, the applicant offered to plead guilty to an offence under s 193B(3) of recklessly deal with proceeds of crime. Although the Crown rejected that offer, stating it would accept only a plea to an offence under s 193B(2), ultimately it accepted a plea of guilty to an offence under s 193B(3). The question is whether her Honour erred in applying a discount of only 10% for the utilitarian value of the plea of guilty, albeit that before her the parties agreed that 10% was the appropriate discount under the applicable legislation.
54. The applicable legislation was that resulting from the amendments made, with effect from 30 April 2018, to the Criminal Procedure Act and the Crimes (Sentencing Procedure) Act 1999 (NSW) (“Sentencing Procedure Act”), to enact what is commonly referred to as the “Early Appropriate Guilty Plea” scheme, and which apply to proceedings commenced after 30 April 2018.[37] As the proceedings against the applicant were commenced by Court Attendance Notices dated 23 August 2018,[38] those provisions apply.
55. The amendments to the Sentencing Procedure Act have the effect that the discounts to be applied on sentence following a guilty plea are prescribed in numerical terms, dependent on the status of the proceedings when the plea is entered (thus, 25% before committal, and 10% following committal but more than 14 days before trial).[39] The discounts are mandatory; there is no residual discretion.[40]
56. Provision is made for the circumstance where an offender has made an earlier offer to plead guilty that is later accepted by s 25E(2), as follows:
(2) Discount where offer later accepted. In determining the sentence for an offence, the court is to apply a sentencing discount for the utilitarian value of a guilty plea in accordance with this section if—
(a) the offender made an offer recorded in a negotiations document to plead guilty to an offence, and
(b) that offence (the “different offence”) was not the offence the subject of the proceedings when the offer was made, and
(c) the offer was refused but accepted by the prosecutor after the offender was committed for trial, and
(d) the offender pleaded guilty to the different offence at the first available opportunity able to be obtained by the offender.
57. The Crown points out that para (a) requires that the offer must have been recorded in a “negotiations document”. The term “negotiations document” is defined, in s 25B, as follows:
“negotiations document” means—
(a) if an offender was represented by an Australian legal practitioner in proceedings—
(i) a case conference certificate (including any later plea offer) filed in committal proceedings for the offence concerned under the Criminal Procedure Act 1986, or
(ii) any other document that records an offer made by the offender to plead guilty to an offence specified in the document, served on the prosecutor in proceedings for the offence—
(A) following committal for trial or sentence, or
(B) after an indictment containing a new count offence is filed.
58. Reference has already been made to the requirement for a “case conference” prior to committal to the District Court,[41] the principal objective of which is “to determine whether there are any offences to which a person will plead guilty”.[42] A “case conference certificate” must be filed prior to committal.[43] The case conference certificate must include, inter alia, any offers made by the prosecution or accused to plead guilty to the offence charged or some other offence.[44] CPA, s 75, relevantly provides (emphasis added):
75 Contents of case conference certificate
(1) The case conference certificate is to be in the form prescribed by the regulations and is to certify as to the following matters—
...
(b) any offers by the accused person to plead guilty to an offence specified in the charge certificate or to different offences,
(c) any offers by the prosecution to the accused person to accept guilty pleas to an offence specified in the charge certificate or to different offences,
(d) whether the accused person or prosecution has accepted or rejected any such offers,
(e) the offence or offences for which the prosecution will seek committal for trial or sentence,
.....
(4) A case conference certificate must certify as to all the matters of the kind referred to in subsection (1) that occur before the certificate is filed, including any written offers of a kind referred to in subsection (1) that were made by the accused person or the prosecutor, and served on the prosecutor or accused person, before or after any case conference was held.
59. The intent that all pre-committal offers must be included in the certificate is confirmed by s 77, which provides that a plea offer made after the certificate is filed but before committal is deemed to be included in the certificate:
77 Further offers
(1) This section applies to an offer (a plea offer) if—
(a) the offer is made by the accused person or the prosecutor after the filing of the case conference certificate in committal proceedings, and before the accused person is committed for trial or sentence, and
(b) the offer is an offer of a kind that would have been required to be included in a case conference certificate if it had been made before the filing of the certificate, and
(c) the offer is made in writing and served on the other party, and
(d) the offer is filed in the registry of the Local Court.
(2) A plea offer is, for all purposes, to be treated as if it formed part of the case conference certificate.
(3) A plea offer is to be annexed to the case conference certificate in the committal proceedings.
60. The Crown submitted that to fall within the definition of “negotiations document”, any offer made prior to committal was required to be recorded in the case conference certificate and not otherwise. “Put simply, to engage s 25E the offer made by email on 8 October 2019 needed to be recorded in the case conference certificate. It was not”.
61. In the present case, the case conference was conducted on 28 August 2019. The certificate was prepared and signed by the prosecutor on 30 October 2019, and filed on 31 October 2019, when the applicant was committed for trial to the District Court. In respect of offers, it certified only that the prosecution during the case conference had informed the defence that the only charge that the Crown would accept a plea of guilty to would be an offence under s 193B(2) (knowingly dealing with proceeds of crime). It did not refer to the offer to plead guilty to an offence under s 193B(3) of recklessly deal with proceeds of crime, which was made by the applicant on 8 October 2019 – after the case conference, but before committal.
62. The 8 October 2019 offer was plainly one that fell within s 75(1)(b) and was required to be included in the certificate by s 75(4). It ought to have been included, and its omission from the certificate was a mistake. The idea that the accused should be disadvantaged by a mistaken omission from the certificate is most unattractive, and not one which should be attributed to the legislature.
63. In my opinion, insofar as Sentencing Procedure Act, s 25E(2)(a), refers to “an offer recorded in a negotiations document to plead guilty to an offence”, and s 25B defines “negotiations document” as “a case conference certificate (including any later plea offer)”, s 25E(2)(a) should be construed as capturing an offer which was recorded, or ought to have been recorded, in a negotiations document.
64. On that basis, the applicant was entitled to a discount of 25%, not the 10% she was allowed.
65. This was not a House v The King[45] error in the exercise of a discretion, but in the nature of a slip, in that neither the prosecution, nor the defence, nor the judge adverted to the correct position so far as entitlement to a discount was concerned. It affected only a discrete element of the sentence, namely the amount of the utilitarian discount. This then gives rise to the question whether this Court must, in conformity with Kentwell v The Queen (“Kentwell”),[46] re-exercise the sentencing discretion afresh, or whether it can simply adjust the sentence to correct the slip.
66. A similar – but as will be seen, not identical – question arose in Lehn v R (“Lehn”),[47] which, however, predated the “Early Appropriate Guilty Plea” scheme and was decided under legislation which provided for a discretion as to the appropriate discount. In Lehn, a guilty plea had been entered at the earliest opportunity. The Crown made no submission that less than the full 25% utilitarian discount should be applied, but the sentencing judge applied a discount of only 20%, noting that “care must be taken not to attribute a discount that would have the effect of reducing a sentence to below that which would be recognised to accurately reflect the Court’s assessment of the objective gravity of the offending conduct”.[48] On appeal, it was accepted by both parties that the failure of the sentencing judge to raise this with the parties at the hearing was a denial of procedural fairness. In those circumstances, a five-judge bench of this Court held that it was required by Kentwell fully to re-exercise the sentencing discretion. The Court held that where the discretion has miscarried in respect of a discrete component of the sentencing process, just as where it has miscarried generally, it is the duty of the Court of Criminal Appeal to exercise the discretion afresh.[49] However, a significant reason for that approach was that the “instinctive synthesis” approach to sentencing was not consistent with a separate adjustment of a discrete component, as all the components had to be considered together. As the Chief Justice said:[50]
“Further, there are difficulties with the alternative approach. The instinctive synthesis approach to sentencing is now well-established. As explained by McHugh J in Markarian, it involves identifying all factors relevant to the sentencing discretion, discussing their significance and making a value judgment as to what is the appropriate sentence: at [51]. A separate adjustment of a particular component of a sentence infected by error does not seem consistent with this approach.”
67. 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].”
68. 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.”
69. 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].”
70. 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”.
71. 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.
72. 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.
73. 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.
CONCLUSION
74. It follows that in my opinion, leave to appeal against the conviction should be refused. In respect of the sentence appeal, leave to appeal should be granted, the appeal allowed, the sentence imposed by the District Court on 24 June 2020 quashed, and in lieu thereof the applicant should be sentenced to a term of imprisonment of one year and ten months, with a non-parole period of fourteen months commencing on 24 June 2020 and expiring on 23 August 2021.
75. Three other matters require comment.
76. First, much attention was given in the course of the hearing in this Court to a suggestion that the applicant had endeavoured to provide to her lawyers invoices evidencing the sourcing of baby formula from legitimate sources, but that these had not been accepted or acted upon by her lawyers. Such invoices were irrelevant to the plea of guilty: they might have established that the applicant sourced formula from legitimate as well as rogue suppliers, but they could not show, nor even raise a doubt, that she did not source it also from rogue suppliers. They might arguably have been relevant to the agreed facts, insofar as there was dispute over of the quantities; but this was effectively resolved when the Crown agreed to include in the agreed facts that not all of the baby formula with which she dealt was stolen, and that not all the monetary receipts were attributable to stolen formula.
77. Secondly, the allegation of incompetence of counsel made in respect of Mr Shukoor, both in the conviction appeal and in the sentence appeal, was unfair. Far from incompetence, Mr Shukoor, who impressed as a highly careful, capable, and competent counsel, used considerable care, skill, and acumen to obtain the best realistic result for his client. The applicant was very well served by him. It is regrettable that the allegation was ever made.
78. Thirdly, if the applicant has not availed herself of the opportunity to make representations to the Minister under Migration Act, s 501CA, to revoke the cancellation of her visa, it might remain open to her to do so.
79. I agree with the orders proposed by Bellew J.
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