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Key decisions

  • Ke v R [2021] NSWCCA 177
  • Naberezhnov v R [2021] NSWCCA 142

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.

Naberezhnov v R [2021] NSWCCA 142

Sentencing – objective seriousness – drugs and music festivals

You might think drugs and music festivals seem to go hand-in-glove; a fact which was as true at Woodstock (where a whopping 742 people overdosed in three days) as it is today.

In this decision, however, the CCA has used the occasion to observe that just because it might be notorious that drugs are consumed and distributed at music festivals, that general fact is not relevant to the objective seriousness of the particular offence. It might be relevant to general deterrence, but whatever the case, if a judicial officer is going to comment about the state of things outside the facts of what the offender actually did, it is vital they identify how (if at all) that is relevant to the case at hand.

The applicant was sentenced (along with some co-offenders) for drug supply offences: ongoing supply of cocaine (three instances, totalling about 194g), one count of offering to supply over 2kg of MDMA, and one count of actually supplying about 95.5g of MDMA. Other than the last offence, the offences involved an undercover operative. But it was the last offence which is more important to the appeal (and this summary): the offender went to a dance festival, and was found with MDMA, separated into about 500 capsules. This summary only deals with that offence, and the error which attended it.

On sentence, the Crown had submitted that at the festival where the offender had intended to sell his wares, two people died and 13 other people were variously treated for serious drug-related issues. Those submissions appeared in the Crown’s written submissions under the heading ‘Objective Seriousness’, although they were expressed to be in reference to general deterrence. At first instance, counsel for the applicant observed (and the judge confirmed) that nobody had ever asserted that it was the offender’s drugs that caused the deaths. That notwithstanding, in the sentencing judgment the judge commented that he had taken judicial notice of the fact that drugs are on occasions supplied at festivals, that it is well known in the community that people have died as a result of these substances, and that many of the people who commit this kind of offence at festivals are young.

[T]he CCA has used the occasion to observe that just because it might be notorious that drugs are consumed and distributed at music festivals, that general fact is not relevant to the objective seriousness of the particular offence…

Bearing in mind that there were also other, more serious offences to be dealt with, the judge imposed an aggregate sentence of 12 years imprisonment with a non-parole period of 8 years. The applicant appealed on the basis, inter alia, that the sentencing judge had impermissibly taken into account the observations about drugs at music festivals generally in assessing the objective seriousness of the festival offence.

In the judgment of Bellew J (with whom Adamson J agreed, offering some additional remarks; Harrison J agreeing with both) it was somewhat infelicitous of the Crown to submit on the subject of deaths at music festivals under the heading ‘Objective Seriousness’, but it was not necessary to determine whether that reference led the judge into error (at [48]). The objective seriousness of an offence must be assessed wholly by reference to the nature of a person’s offending. In the context of the present offence, the fact that people may have died at music festivals, the fact that supply and consumption of drugs happens regularly at music festivals, and the fact (if it be that) that offending of this kind is often committed by people in a particular demographic, although relevant to general deterrence, were not factors relevant to the applicant’s offending. By taking them into account in assessing objective seriousness, the sentencing judge erred (at [49]).

Adamson J (with whom Harrison J agreed) appeared less certain whether the sentencing judge had actually taken the impugned matters into account (see [4]). The setting in which the offending took place was relevant to the objective seriousness of the offending, and so it was, at least potentially, relevant that the offending occurred in the context of a music festival. The potential consequences of an offence in general can be assumed to have been taken into account by the legislature in prescribing the maximum penalty. So, in the context of drug supply, the potential consequences included that one or more people might die or suffer catastrophic health consequences. But the potential consequences of particular offending by reference to what has happened in unrelated cases does not increase the objective seriousness of the particular offending (at [3]). Judges are entitled to make observations on topics of community concern and topical interest in remarks on sentence. But if they do so, they are obliged to make clear whether those matters bear on the sentence imposed on the offender. Because the sentencing judge’s reasons were insufficiently clear as to the matters his Honour had taken into account in assessing objective seriousness, and because there was a risk that his Honour had done so, her Honour considered the ground made out (at [4]-[5]).

This was, however, a pyrrhic victory: despite the error the Court declined to impose a lesser sentence.



Thomas Spohr
is a solicitor, Legal Aid NSW and a member of the Law Society of NSW Criminal Law and Ethics Committees.