Criminal law: September 2021

Ke v R [2021] NSWCCA 177

Sentencing – EAGP discount regime

In this case the Court of Criminal Appeal (‘CCA’) has held that when considering the Early Appropriate Guilty Plea (‘EAGP’) sentencing discounts, if it happens to be the case that the parties failed to record in the Case Conferencing Certificate an offer which was formally made in writing by a defendant, they will still be entitled to the discount despite the literal words of the legislation.

The applicant pleaded guilty to offences relating to selling baby formula which had been stolen, in circumstances where she had been reckless as to that fact. She was originally charged with actual knowledge that the formula had been stolen. Before being committed for trial, her representatives sent the Crown an email offering to plead guilty on the basis of recklessness, but the DPP rejected the offer and she was duly committed for trial. Subsequently, the Crown had a change of heart at a ‘Super Callover’ and the offer was belatedly accepted after all. However, her offer in the Local Court had not been recorded in the Case Conference Certificate – an omission which appears to have been merely a mistake. Counsel appearing for the appellant at sentence seemed not to have known about the earlier offer, and conceded that the appropriate discount was 10% because of the timing of the plea; a concession the sentencing judge acted upon. The applicant was sentenced to 2 years and 3 months, with a non-parole period of 18 months. She appealed her sentence and (unusually, given the plea of guilty) also appealed against her conviction, although this summary only discusses that part of the appeal dealing with the discount on sentence – making up just one of the 17 grounds / particulars argued, and the only successful one.

Bellew J (with whom Brereton JA and Adamson J agreed, each with additional reasons) found that there had been an error in relation to the determination of the discount.

Criminal law practitioners will be aware of the ‘Early Appropriate Guilty Plea’ reforms applying to matters proceeding on indictment. A key feature of that regime was fixed discounts to be applied for a plea of guilty, and there is a small summary of this part of the regime at [317]-[322] of the judgment. Also included is the protection that if a defendant makes a formal offer which is initially rejected, that has the effect of locking in the discount that would have applied at the time (in this case 25%) if it is subsequently accepted.

In responding to the appeal, the Crown defended the application of the 10% discount on what might be regarded as a highly technical basis. Specifically, the legislation requires that the offer be recorded in a ‘negotiations document’ – which, for present purposes, means the Case Conference Certificate. The Case Conference Certificate is supposed to summarise the various parties’ positions during the Case Conferencing process and gets filed when the defendant is committed for trial or sentence. Given that in this case the offer was not recorded in the document, the Crown argued that s 25E of the Crimes (Sentencing Procedure) Act 1999 (‘the Act’) did not recognise the plea offer for the purpose of the discount regime (at [335]).

Bellew J observed that there is no doubt that the Case Conference Certificate is a ‘negotiations document’, nor is there a doubt that there was no reference in the document to the applicant’s offer. Accordingly, the question turned on the interpretation of the phrase ‘an offer recorded in a negotiations document’ in s 25E(2)(a) of the Act. The interpretation advanced by the Crown on appeal was a literal one, but acceptance of that interpretation would bring about a result which could not possibly have been intended by Parliament (at [337]-[338]). In his Honour’s view, it could not possibly have been Parliament’s intention to bring about a result whereby an offender was deprived of the benefit of a significant discount on sentence merely because the parties overlooked a requirement to record on a document the undisputed fact that an offer was made to plead guilty (at [338]). His Honour considered that for the purposes of s 25E(2)(a), the phrase ‘an offer recorded in a negotiations document’ should be taken to mean ‘an offer which was recorded or which was required to be recorded in a negotiations document’ (at [339] – interpreted in very similar terms in the separate reasons of Brereton JA at [63]).

Although the sentencing judge was blameless (the 10% discount having been erroneously conceded at first instance) this was nevertheless an error. The applicant was resentenced to 1 year and 10 months with a non-parole period of 1 year and 2 months.