Ke v R

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 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”:

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.

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:

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.

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.

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]

This is consistent with a long line of authority, in Australia and in England. In R v Stones, this Court said (emphasis added): [3]

In R v Cunningham, the English Court of Criminal Appeal approved the following as an accurate statement of the law (emphasis added): [4]

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]

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.

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]

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.

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.

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]

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]

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]

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 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:

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]

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]

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]

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.

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.

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.

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:

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:

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.

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).

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.

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.

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.

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]

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]

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.

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.

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:

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]

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.

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:

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.

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):

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.

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.

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).

For those reasons, in addition to the reasons given by Adamson J, leave to appeal against the conviction should be refused.

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.

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]

In AC v R , this Court said: [31]

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]

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]

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.

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.

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.

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]

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:

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:

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):

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:

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”.

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.

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.

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.

On that basis, the applicant was entitled to a discount of 25%, not the 10% she was allowed.

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.

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]

To similar effect, R A Hulme J said: [51]

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]

This approach was followed in Refaieh v R, in which the Court said: [53]

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”.

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.

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.

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.

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.

Three other matters require comment.

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.

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.

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.

I agree with the orders proposed by Bellew J.

ADAMSON J: Lie Ke (the applicant) seeks leave pursuant to s 5(1)(b) of the Criminal Appeal Act 1912 (NSW) to appeal against her conviction, following the entry of her plea of guilty on 27 March 2020, for one count of recklessly dealing with the proceeds of crime contrary to s 193B(3) of the Crimes Act 1900 (NSW). The substance of the plea was that the applicant sold baby formula which had been stolen, in circumstances where she was reckless as to whether it had been stolen. The maximum penalty for an offence under s 193B(3) is 10 years’ imprisonment.

On 24 June 2020, the applicant was sentenced by Herbert DCJ to a term of imprisonment of 2 years and 3 months, with a non-parole period of 18 months’ imprisonment commencing on 24 June 2020 and expiring on 23 December 2021. The applicant also seeks leave to appeal against the sentence.

Unless otherwise stated, all references to legislation in these reasons are references to the Crimes Act 1900 (NSW).

In support of her application for leave to appeal against conviction, the applicant relies on the following single ground, with nine particulars:

Both the applicant and the Crown tendered evidence in this Court as to the facts and circumstances surrounding the applicant’s plea. It is useful to set out what occurred in narrative form before turning to the grounds. The evidence adduced by the Crown comprised:

Mr Shukoor, Mr Park and Ms Chand were cross-examined. I accept their evidence.

The evidence adduced by the applicant comprised the following:

The applicant, Rosemary and Jay were cross-examined.

At about 8pm on 22 August 2018, the applicant was apprehended and charged with various offences arising from the sale of baby formula products. On 23 August 2018, the applicant participated in an ERISP. The ERISP commenced at 4.46am and concluded at 6.40am. Relevantly, in the course of the ERISP, the applicant admitted that she bought items at a cheap price from “suppliers” from whom she received no documentation. She said in her ERISP:

She was shown photographs of persons alleged to have been her suppliers, some of whom she identified as being known to her. She told police that she did not know that the suppliers had stolen the formula but acknowledged that she would only buy from those who contacted her and told her that they had baby formula for sale at a cheap price. She admitted that her suppliers obtained the formula from “supermarkets such as Woolworths” before they on-sold it to her. She sold the formula to people who wanted her to send it overseas to China.

Each of these suppliers, who were referred to as “rogue suppliers”, had been interviewed by, and made statements to, police to the effect that they had stolen the baby formula from major outlets and on-sold it to the applicant at various locations (which included carparks and back lanes) at times which were arranged shortly before the transaction took place to avoid detection by the police. The rogue suppliers said that the applicant knew that they had stolen the baby formula which she purchased from them. These statements were summarised in the Crown case statement, which is referred to below.

On 23 August 2018 at 2.25pm, the applicant was served with a court attendance notice which charged the following sequences (Charge H69424179) and which required her attendance at the Local Court at Burwood on 17 September 2018:

On 23 August 2018, the applicant and her partner were released from police custody. The applicant’s daughter, Rosemary (who was subsequently charged), took them to see a solicitor, whose identity is not revealed by the evidence.

On 17 September 2018, the applicant appeared at Burwood Local Court. She cannot recall whether she was represented by a solicitor on that occasion. At this stage of the proceedings, she instructed her then solicitors (who have not been identified) that she was not guilty because she “did not know the baby formula products were stolen at the time [she] was purchasing them.”

At about the end of 2018, the applicant changed her solicitor. She instructed Sydney Criminal Lawyers to represent her and her partner (and subsequently, her children). Initially, Fouwad Awada was the solicitor who had conduct of the matter. The initial costs agreement dated 27 December 2018 provided an estimate of $15,000 for each of the applicant and her partner for work done while the matter was still in the Local Court. It also provided that if the matter proceeded to the District Court, a further costs agreement would be advised.

Both Rosemary and Jay were subsequently charged with associated offences.

On 19 February 2019, the applicant was served with a further court attendance notice which required her attendance at Parramatta Local Court (where the matter had been transferred) and which charged a further sequence as follows:

On 13 June 2019, the ODPP filed a charge certificate which certified a single charge of knowingly deal with the proceeds of crime contrary to s 193B(2) of the Crimes Act against each of the applicant, her partner, Rosemary and Jay. The maximum penalty for an offence under s 193B(2) is 15 years’ imprisonment. This corresponded with sequence 7 above. The other six charges were withdrawn.

On 9 July 2019, Rosemary sent copies of invoices to Mr Awada to demonstrate that the applicant purchased stock from large suppliers. However, many of the invoices do not relate to the period of the charge to which the applicant pleaded guilty and do not concern the purchase of baby formula.

On 28 August 2019, a case conference was held at the ODPP which was attended by the applicant’s solicitor from Sydney Criminal Lawyers, who also represented the applicant’s partner, Rosemary and Jay. At the conference, the ODPP offered to accept a plea from the applicant to the charge contrary to s 193B(2) of the Crimes Act (knowingly deal with proceeds of crime), and a plea from the applicant’s partner and each of the two adult children to a charge contrary to s 193B(3) of the Crimes Act (recklessly deal with proceeds of crime). The offers were independent and not conditional on the acceptance of the offer by any one of the accused persons.

Mr Awada informed the ODPP that the accused persons needed more time to consider the offer. The ODPP confirmed the offer by email on 5 September 2019 and attached draft facts for the accused persons other than the applicant. Mr Awada replied the following day by email as follows:

Almost a month later, on 8 October 2019, Mr Awada wrote to the ODPP to inform it that that the applicant and her partner were willing to plead guilty to charges contrary to s 193B(3) of the Crimes Act and that their children would seek to have their matters committed for trial. This is consistent with what the applicant told Mr Shukoor on 6 March 2020 (see below).

The ODPP responded later that day (8 October 2019) by informing Mr Awada that the Officer-in-Charge (OIC) had indicated that she would accept a plea to a s 193B(2) charge in respect of the applicant and a plea to a s 193B(3) charge in respect of the applicant’s partner and, if pleas were entered on those bases, the charges against the children would be withdrawn. The ODPP requested a response.

On 9 October 2019, Mr Awada wrote to the ODPP to indicate that he would seek a further two-week adjournment of the matter on 10 October 2019 with a view to “confirming [the applicant’s] plea of guilty to the current charge”. Subsequently, by agreement between the practitioners, the length of the adjournment to be sought from the court was subsequently extended to three weeks.

On 17 October 2019, the ODPP wrote to Mr Awada to inform him that the Crown would accept a plea of guilty from the applicant to the s 193B(2) charge and from the applicant’s partner to the s 193B(3) charge. The ODPP indicated that if pleas were entered, it would withdraw the charges against the applicant’s children. This offer corresponded with the indication given by the OIC on 8 October 2019.

On 30 October 2019, Mr Awada wrote to the ODPP to inform it that his instructions were that each of the accused persons wished to maintain a plea of not guilty.

On 31 October 2019, the applicant and her partner were committed for trial in the District Court at Parramatta and the matter was listed for arraignment on 28 November 2019.

The Crown case statement, a draft of which was annexed to Mr Shukoor’s affidavit, summarised the Crown case, which comprised the following evidence:

The facts in the draft Crown case statement which related to Rosemary were: that she lives with the applicant and the applicant’s partner; telephone intercepts between the applicant and Rosemary relating to the sale of baby formula; $15,000 cash found in her bedroom when the search warrant was executed; and data extracted from her phone regarding the sale of baby formula.

The facts in the draft Crown case statement which related to Jay included his ownership of the property where the applicant, her partner and Rosemary live; his attendance at the Carlingford shopping centre after hours to receive baby formula from rogue suppliers; and his ownership of the Toyota Hiace and the Jeep Grand Cherokee vehicles which were used by the applicant to receive stolen baby formula.

On 28 November 2019, the Crown sought an adjournment for a fortnight to settle the indictment. It was granted by consent.

On 12 December 2019, the arraignment of the applicant in the District Court was adjourned for a week as no Mandarin interpreter was present.

On 19 December 2019, all four accused entered pleas of not guilty to charges contrary to s 193B(2) of the Crimes Act (knowingly deal with proceeds of crime). The matters were adjourned to 6 February 2020. Mr Bonnici, who appeared for the applicant in this Court, cross-examined Mr Shukoor at length about the arraignment of the four accused on 19 December 2019, apparently with a view to establishing that the accused did not intend to plead guilty. However, I understand the purpose of the arraignment on that date to be to confer jurisdiction on the District Court pursuant to s 130(2) of the Criminal Procedure Act 1986 (NSW). It is always open to an accused person to change his or her plea from not guilty to guilty, including during the course of a trial at any time until the jury has returned its verdict.

On 20 December 2019, the day after the arraignment in the District Court, Mr Awada left Sydney Criminal Lawyers which led to the matter being transferred to Ms Chand. She conferred with the accused persons on 21 January 2020 and told them that she would read the brief of evidence and provide advice to them. I accept the evidence of Mr Shukoor, Ms Chand and Mr Park that the applicant could speak and understand some English, although they accepted that she required an interpreter for significant matters, such as understanding the statement of agreed facts. From the time of these initial instructions, Ms Chand communicated with the applicant by sending documents to Rosemary’s email address, which was the only email address which had been provided to her for that purpose.

On 6 February 2020, Ms Chand appeared on behalf of all four accused persons before Hanley SC DCJ and acceded to the Crown’s request that the matter be listed in the super call-over on 6 March 2020. When his Honour asked Ms Chand whether anyone was briefed, she indicated that she had briefed Mr Shukoor on behalf of all four accused persons. His Honour alerted her to the possibility of a conflict of interest and advised her to be “very careful”. The matter was listed in the super call-over on 6 March 2020.

When Mr Shukoor received the brief from Ms Chand, he, too, was concerned about the potential for conflict between the four accused. Having reviewed the brief of evidence, he concluded that the case against the applicant was much stronger than the case against her partner and that the case against Rosemary and Jay (on the charge of dealing with knowledge) was weak. Ms Chand was also of that opinion. On this basis, he raised his concerns with Ms Chand and informed her that he could not advise or appear for all four accused but that he was prepared to advise and appear for the applicant. Mr Bonnici cross-examined Mr Shukoor and Ms Chand by putting to them that they ought to have applied to the Crown for a no bill to be filed in respect of the indictments presented against Rosemary and Jay. Mr Shukoor confirmed that as he was acting only for the applicant, he did not turn his mind to such an application. He also said that, although the case against Rosemary and Jay for dealing with proceeds of crime with knowledge was weak, there were other charges which could have been brought against them which could be supported by the evidence in the police brief.

On 11 February 2020, Sydney Criminal Lawyers sent a further costs agreement to act on behalf of all four accused persons at any eventual District Court trial. The total estimate was $528,000, which comprised $132,000 for each of the four accused persons. The figures were based on a six-week trial in the District Court with each of the accused being represented separately by a solicitor and a barrister. Ms Chand confirmed that she would have told the four accused that the firm could not proceed to brief barristers for a trial unless they had sufficient funds in trust. I accept Ms Chand’s evidence that nothing was raised by the applicant in relation to any inability to pay for the trial. I note that the further costs agreement referred (as had the original costs agreement) to the potential availability of legal aid as follows:

According to the applicant, by 11 February 2020, she had already paid more than $200,000 in legal fees which included work done in the criminal proceedings in the District Court, including counsel’s fees for Mr Shukoor, and a matter in the New South Wales Crime Commission including counsel’s fees for Greg Jones of counsel. I prefer the evidence of Ms Chand that, up until March 2020, the applicant and her family had paid a total of about $142,200 to Sydney Criminal Lawyers. It is not apparent from the evidence adduced on behalf of the applicant what she paid the lawyer who acted for her before Sydney Criminal Lawyers were retained.

On 19 February 2020, the ODPP sent Ms Chand a draft statement of agreed facts in preparation for the super call-over on 6 March 2020.

By email dated 20 February 2020, Ms Chand wrote to her principal, Ugur Nedim, informing him of the super call-over and the conflict between the four clients. She said, in part:

By email dated 28 February 2020, Mr Shukoor wrote to Ms Chand proposing that they represent the applicant, that the applicant’s partner be represented by a different lawyer and that the two children could be represented by a single lawyer. This led to Ms Chand briefing Mr Shukoor to advise the applicant and appear on her behalf at the super call-over which was listed at the Parramatta District Court on 6 March 2020.

Ms Chand sent an email to Mr Nedim setting out the possible conflicts including the following:

Ms Chand and Mr Nedim further considered the issue of conflict in emails exchanged between them on 3 March 2020, in which Ms Chand set out clause 11 of the Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015 (NSW), entitled “Conflict of duties concerning current clients”.

Prior to the super call-over, it was confirmed that Mr Shukoor and Ms Chand would represent the applicant; Fahim Khan, a senior criminal lawyer at Sydney Criminal Lawyers, would represent the applicant’s children; and Mariecar Capili, a criminal lawyer at Sydney Criminal Lawyers, would represent the applicant’s partner. At times, Rosemary acted as a go-between between the solicitors and the applicant and the applicant’s partner because she was bilingual in Mandarin and English.

By email sent on 5 March 2020, Mr Shukoor wrote to the ODPP to inform it that Ms Chand was instructed only by the applicant and that he (Mr Shukoor) was briefed by Ms Chand to appear on behalf of the applicant. He informed the ODPP that the other accused persons had instructed separate lawyers and that only correspondence concerning the applicant ought be directed to him or Ms Chand. He also proposed, in response to the Crown’s then offer that the applicant plead to an offence under s 193B(2), that the applicant would instead plead to an offence contrary to s 193C(1) (dealing with property suspected of being proceeds of crime), for which the maximum penalty is five years’ imprisonment (to be compared with a maximum of 15 years for s 193B(2) and 10 years for s 193B(3)). It is noteworthy that Mr Shukoor did not tie this proposed offer to a condition that the charges be withdrawn against the children.

At some time prior to 6 March 2020, probably on 5 March 2020, Mr Shukoor, Ms Chand, the applicant and an interpreter conferred, probably by telephone, in advance of the super call-over. During that conference, Mr Shukoor informed the applicant of the purpose of the super call-over and what was likely to occur (the Crown would indicate to which offence a plea would be accepted in substitution for the offence charged).

According to Mr Shukoor, the applicant instructed him that she wanted him to negotiate the best possible outcome for her and that she did not want the matter to go to trial. In her affidavit read in this Court, the applicant said that she told Mr Shukoor on 6 March 2020 that she was “never going to plead guilty to [a] charge of ‘knowingly’ purchasing stolen products.”

On 6 March 2020, Mr Shukoor announced his appearance for the applicant. Ms Capili announced her appearance for the applicant’s partner and Mr Khan announced his appearance for Jay and Rosemary. Mr Shukoor indicated that the applicant required an interpreter. At about this time, either before or after the appearances were taken, Mr Alder, Deputy Director of Public Prosecutions, informed Mr Shukoor that the Crown would accept a plea from the applicant and her partner to a s 193B(3) charge in satisfaction of the indictment and that, if pleas were entered, the charges against Rosemary and Jay would be withdrawn.

Mr Shukoor, Ms Chand, the applicant and the interpreter went into a conference room in the vicinity of Court 1 at Parramatta District Court so that the offer could be discussed. While they were in the conference room, Mr Shukoor advised the applicant that, from his consideration of the brief of evidence (which he had read in full by 6 March 2020), there was evidence to substantiate a finding beyond reasonable doubt that, from time to time, the applicant had actual knowledge that the relevant property (baby formula) was the proceeds of crime. Mr Shukoor explained to the applicant the difference between recklessness and knowledge by telling her that reckless dealing meant that she realised the possibility that the baby formula was stolen and dealt with it anyway but that dealing with knowledge meant that she actually knew that the baby formula was stolen. He also advised her of the difference between the maximum penalties for an offence under s 193B(2) (15 years’ imprisonment) and for an offence under s 193B(3) (10 years’ imprisonment).

He explained to her the concepts of the onus and standard of proof as they applied in a criminal trial. He also advised her that there was a strong case that she was reckless as to whether the baby formula was the proceeds of crime. He warned her that the jury might have trouble accepting the version she had given in her ERISP that she had no idea that the baby formula was stolen, in light of the other objective evidence in the Crown case, as well as the evidence of rogue suppliers.

Mr Shukoor annexed the draft Crown case statement to his affidavit to demonstrate to this Court the strength of the Crown case on the basis that this statement was an adequate summary of the brief of evidence. In oral evidence, Mr Shukoor referred to the following matters which he had identified for the applicant on 6 March 2020 as tending to establish that she was at least reckless that the baby formula which she purchased was stolen:

Mr Shukoor told the applicant that although the evidence of the rogue suppliers could be challenged on the basis that they were criminally involved and had given induced statements (which would mean that they would not be prosecuted), their evidence was substantially similar and was also consistent with the objective evidence, which would make it more likely that the jury would accept it.

In substance, Mr Shukoor told the applicant that she would have difficulty defending the matter on the basis of a charge of recklessness.

Mr Shukoor accepted that he had not provided a written advice to the applicant about these matters. He explained that he had not been briefed to provide a written advice and, had he been so briefed, it would have been “a very time consuming and costly exercise for the client [applicant].” Nor did he take notes of what he told the applicant because he relied on Ms Chand to take a file note. However, I am satisfied that his confirmatory email sent later that day (set out below) was drafted when what he had said to the applicant was still fresh in his memory and is accurate.

Mr Bonnici cross-examined Mr Shukoor about whether he sought the applicant’s response to each of the matters set out in the Crown case statement. I understood Mr Shukoor to have confirmed that he advised her of the strength of the Crown case by reference to the evidence referred to above. It is understandable that there would be circumspection on the part of defence counsel in asking direct questions of a client, lest the client confess guilt with the result that the barrister will be obliged to return the brief if the client proposes to plead not guilty at an eventual trial: rule 33 of the New South Wales Bar Association Rules.

I accept Mr Shukoor’s evidence that there was no improper conduct on the part of the ODPP in relation to the plea negotiations. I also accept his evidence that he did not recall the applicant ever expressing concerns to him about the matters proceeding to trial against her children. Had this been of concern to the applicant, I infer that she would have raised it with him. Further, I accept Mr Shukoor’s evidence as follows:

During the course of 6 March 2020, Mr Shukoor observed the applicant speaking to her partner as well as Rosemary and Jay. He said, of the four accused:

Mr Shukoor obtained instructions from the applicant on 6 March 2020 that she would accept Mr Alder’s offer. Indeed, she informed him (as recorded in his email referred to below) that she had always been open to pleading guilty to the charge based on recklessness (s 193B(3)). As a result, 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 negotiation to occur on the facts. I infer that Mr Shukoor wanted the opportunity to obtain a more favourable version of the agreed facts than had been offered to that date. By that stage, the Crown had informed Mr Shukoor that it would not accept the plea unless and until the facts had been agreed.

Mr Shukoor confirmed the matters set out above in a lengthy email sent to Ms Chand on 6 March 2020 at 4.37pm. He explained in oral evidence in this Court that it was his usual practice to send a detailed email to his solicitors, which served the same purpose as a file note. In Mr Shukoor’s email, he said:

Mr Shukoor confirmed in oral evidence before this Court that the basis for the highlighted portion was that the applicant indicated to him on 6 March 2020 that she was pleased with the offer made by the Crown that day because it corresponded with the offer she had made while the matter was in the Local Court. I do not accept the applicant’s denial in cross-examination in this Court that she had made such an offer. I do accept her admission that she told Mr Shukoor that she wanted to plead guilty to the less serious charge based on recklessness.

On 9 March 2020, Mr Shukoor emailed the ODPP and asked for a copy of the then current version of the agreed facts in Word format. Later that day, the version was sent although it was expressed to be “subject to the approval of Acting Deputy Director Alder”.

On 23 March 2020, Mr Shukoor sent a highlighted version of the agreed facts to the Crown (copied to Ms Chand) which indicated the amendments proposed on behalf of the applicant.

At 1.09pm on 26 March 2020, Mr Shukoor sent an email to the ODPP in which he proposed that, as the facts sheet was relatively complicated, the pleas ought be taken the following day and the discussions regarding the agreed facts could continue subsequently.

At 12.42pm, Ms Chand emailed Mr Shukoor with suggestions made by the applicant and her partner as to amendments to the agreed facts. He responded at 1.14pm to say that he would take them into account and that they could discuss them “shortly”.

At 3.23pm, the ODPP responded to Mr Shukoor’s request in part as follows:

At 3.37pm, Mr Shukoor responded by proposing that the matter be adjourned “for at least 2 weeks for finalisation of the facts”.

At 5.37pm on 26 March 2020, Mr Shukoor wrote to Mr Park and Ms Chand to inform them of the progress of negotiation of the agreed facts and proposed that the matter be adjourned to permit further time for negotiation. He concluded the email:

At 8.35am on 27 March 2020, the ODPP sent an email to Mr Shukoor, attaching “updated agreed facts”. At 8.44am, Mr Shukoor responded by informing the ODPP that he would not be appearing today but would forward the facts to his instructing solicitor. He explained in his oral evidence in this Court that he had not been briefed to appear on 27 March 2020 as it was expected that the arraignment would be a formality as there had been an agreement in principle that the applicant would plead guilty and it was expected that there would be agreement as to the facts. Although Mr Shukoor did not appear on 27 March 2020, he spoke to Ms Chand by telephone in the course of the morning about the facts.

At 9.04am Mr Shukoor responded to the ODPP with proposed amendments to paragraphs 10 and 14 of the draft statement of facts. He concluded the email:

At 9.13am, Mr Shukoor sent by email to Ms Chand the proposed amended facts which had been finalised overnight. He said:

At 9.18am, Mr Shukoor wrote to Ms Chand to inform her that the Crown had agreed to the proposed amendments to paragraphs 10 and 14.

At 9.18am, Ms Chand sent an email to the applicant via Rosemary which attached the final iteration of the proposed amended facts and said:

At 9.41am, Ms Chand sent a further email via Rosemary and said:

On 27 March 2020, as Ms Chand was unwell, Mr Park appeared on the applicant’s behalf in the arraignments list before Hanley SC DCJ. Each of the other accused persons was separately represented.

Mr Park’s understanding was that, on that day, either the applicant would plead guilty or that the matter would obtain a trial date. Mr Park informed his Honour that although the facts had been agreed between the lawyers he still needed to seek instructions in relation to some of them. Initially, Mr Park informed the court that he would require “half an hour to an hour”. However, he subsequently sought an adjournment of a week “just to finalise those facts”. Mr Park said:

His Honour indicated that a week’s adjournment would not be granted and that the matter had to be resolved that day or it would be allocated a trial date with the other three matters. His Honour subsequently asked why it was necessary for the matter to be adjourned for a week. Mr Park said that his client “just needs certainty in relation to those specific paragraphs”. Mr Park indicated that there were issues with paragraphs 7, 8 and 10 and that “counsel briefed in the matter” (Mr Shukoor) was speaking with the family.

When the matter was re-mentioned, the Crown informed the court that he had just learned that none of the accused was in court that day, which was accepted to be as a result of a misapprehension about the effects of COVID-19 restrictions. There was a discussion about the difficulties of taking a plea over the telephone. The matter was stood in the list.

When the applicant and her family arrived at court, Mr Park informed the applicant, as a result of what Hanley SC DCJ had said, that she would need either to enter a plea to the amended indictment or a trial date would be allocated. Mr Park observed the Mandarin interpreter interpret the proposed agreed facts for the applicant. Mr Park wrote out a document by hand which was then signed by the applicant, the interpreter and himself. It said:

I accept Mr Park’s evidence (in response to propositions put to him by Mr Bonnici in cross-examination) that he did not tell the interpreter only to translate the last two paragraphs of the statement of agreed facts; and that he did not tell the applicant to plead guilty or that she had no option other than to plead guilty (as alleged by the applicant). Although he did not recall how long it took the interpreter to translate the agreed facts, Mr Park said that it would have taken “a bit of time” given the length of the statement. Mr Park did not recall any member of the family bringing invoices to court on 27 March 2020 and, indeed, believed that it did not happen. Whether or not such invoices were brought to court on that day, I accept Mr Shukoor’s evidence that the invoices were no longer relevant as the Crown had earlier conceded that only part of the baby formula in the applicant’s possession amounted to proceeds of crime.

At some stage during the morning, Mr Shukoor spoke on the phone to Ms Chand and advised her to tell the applicant that she could go to trial if she was not happy with the facts and that she should not feel under pressure to plead guilty. As referred to below, Ms Chand gave this advice to the applicant.

After this document had been signed, the applicant signed the agreed facts, as did Mr Park and the Crown.

Mr Park acknowledged that the applicant was crying when she was outside the court prior to entering her plea. When he was asked why the applicant was crying, he said:

The matter was re-mentioned. Mr Park announced that there were signed agreed facts in the applicant’s matter.

The applicant and her partner were arraigned on a fresh indictment, which was filed ex officio (which was required because she had been committed for trial on the offence of dealing with proceeds of crime with knowledge), which charged as follows:

The indictment was translated for the applicant by a Mandarin interpreter before she entered her plea. I am satisfied that, at the time of her plea, the applicant understood the nature of the charge to which she pleaded guilty.

The applicant and her partner pleaded guilty to the new charge. The Crown announced that the charges against the other two accused had been withdrawn. The sentence hearing for the applicant and her partner was listed for 24 June 2020. Mr Park indicated that he might be seeking an alternative to full-time custody and would require a sentencing assessment report for the applicant. The signed agreed facts were provided to his Honour who enquired whether they had been interpreted for the applicant before being signed. Mr Park confirmed that they had been interpreted and explained that that was “the reason for the long adjournment”.

The applicant deposed in her affidavit affirmed on 21 June 2021 that she did not understand what “recklessness” was prior to entering her plea, although either on 6 March 2020 or “some later date” (27 March 2020) she was told that she was reckless because she “ought to have known the goods were stolen”. She also deposed that the agreed facts (which she eventually signed) were not fully read to her and that her complaints about particular aspects were ignored. She said that the interpreter only took her to the last few paragraphs of the facts and that she was told that she “had” to sign the agreed facts or the plea would not be accepted by the Crown. She found that whole procedure to be rushed and understood that she was being told by “everyone” to plead guilty as “it was the best and only thing to do”. She felt significant pressure. She deposed that she had brought receipts with her to Court to prove that she bought the formula from wholesalers and that she wanted her legal representatives to use the receipts and show them to the Crown but was told that it was too late for that. I do not except the applicant’s evidence in so far as it is contrary to my findings set out above.

The applicant also deposed that she was told that the judge would not allow any further adjournments and that if she did not plead guilty on 27 March 2020, the charges would be maintained against all four of the accused.

She deposed that she was not told by her lawyers about the effect that a conviction would have on her visa status. She said that her visa has been cancelled although her adult children are Australian citizens.

The applicant made several admissions in the course of her evidence, which I accept, as follows. She had been under considerable pressure since her arrest in August 2018. She appreciated from at least the beginning of 2020 when she instructed Mr Awada that she had been reckless as to whether the baby formula was stolen although she did not know that it had been stolen. By the time she decided to plead guilty, she realised that if she went to trial there was a risk that she would be found guilty. She also realised that it would be much more expensive, in financial terms, if she was to go to trial and concluded that she could not afford the legal fees which Sydney Criminal Lawyers had quoted for a trial in which each of the four accused was separately represented. She knew that it would benefit Jay and Rosemary (who was six months’ pregnant at the time of the super call-over) if the charges against them were dropped. She made her own decision to plead guilty and did so on the basis that she wanted to “end it because we didn’t have the money”. It is also significant that in the discussions between the applicant and her children, neither of her children attempted to influence her for their benefit. Indeed, both Rosemary and Jay told their mother that she should “trust her lawyers”.

As referred to above, Rosemary performed the role of interpreter for her mother at various times. However, on 6 March 2020, she had her own lawyer present and was not with the applicant for the entire period of the negotiations because the parties were separated to take account of the potential conflict.

Rosemary said that the applicant did not ask her children what she should do and that, as she understood it, her mother made her own decision. Rosemary, however, volunteered that, at the time of the super call-over, she was pregnant and that if she had to go to trial it would affect the whole family.

Rosemary deposed that she had brought invoices to court on 27 March 2020, some of which related to the purchase by the applicant of baby formula during the applicant’s charge period (between 17 November 2017 and 22 August 2018). She said that they had given the invoices to Mr Park but that he had said that it was too late for them. It was not suggested on behalf of the applicant that the invoices covered all of the baby formula which was located by police when they executed the search warrant referred to above.

I accept Rosemary’s admissions that what Ms Chand said at paragraphs 54 and 55 of her affidavit was correct, as follows:

Jay recalled Mr Shukoor saying to the family on 6 March 2020 that it would be their only chance to take the Crown’s offer that the applicant and her partner plead to recklessly dealing with proceeds of crime. He also recalled that Mr Shukoor said that a plea of guilty to the lesser offence was a good result for the applicant. I do not accept that Jay was present when Mr Shukoor gave this advice to the applicant. I consider that his evidence reflected discussions he had had with the applicant afterwards.

Jay drove the applicant, her partner and Rosemary to Parramatta District Court on 27 March 2020. He dropped them off and went to park the car which meant that he was absent for the initial period when they arrived. He gave evidence that Mr Park told him that if any one of the four accused did not sign the document, all of the four would have to go to trial. Jay was unable to identify any document which he had to sign although he agreed that draft facts concerned the applicant and not him.

The applicant made several concessions, which are recorded in the narrative above, which are sufficient to indicate that she was a generally honest witness. While I reject her evidence as to the statements attributed to Mr Shukoor, Ms Chand and Mr Park (set out above), I do not consider her evidence as to these matters to have been deliberately untrue. Rather, I consider that they were the product of the considerable strain which she was experiencing since the time of her arrest on 22 August 2018 and subsequently, particularly at the super call-over and, subsequently, when she entered the plea. Although I am satisfied that she appreciated that it was in her best interests to plead to the lesser offence on the basis of the statement of agreed facts which Mr Shukoor had managed to negotiate for her, it was, nonetheless, an important step which she appreciated at the time could lead to her spending time in custody.

I regard the evidence of Rosemary and Jay of having relatively little weight. They did not distinguish between what they observed and what they were told by the applicant, which meant that they appeared to corroborate what the applicant said, in circumstances where they were simply reiterating what they had been told by the applicant. I do not accept that Rosemary brought invoices to court on 27 March 2020 (since if she had, I consider that Mr Park would have remembered it) but, for the reasons given, nothing turns on that.

Where there is a conflict, I prefer the evidence of Mr Shukoor, Ms Chand and Mr Park to the evidence of the applicant, Rosemary and Jay.

On 3 June 2020, the applicant was assessed by Mr Awit, a registered psychologist, for the purposes of the proceedings on sentence. He took a history from her which included the following:

The applicant was cross-examined in this Court about the passage highlighted in the extract above. I do not accept her evidence that she did not appreciate at the time of the offending conduct that she was reckless as to whether the baby formula was stolen.

As referred to above, Mr Shukoor appeared for the applicant at the sentence hearing on 24 June 2020. The applicant was sentenced to a term of imprisonment of two years and three months, with a non-parole period of 18 months’ imprisonment commencing on 24 June 2020 and expiring on 23 December 2021. At no time prior to the sentence hearing did the applicant seek to withdraw her plea.

On 21 July 2020, the Department of Home Affairs wrote to the applicant to inform her that on 21 July 2020 her Class BB Subclass 155 Five Year Resident Return visa was cancelled under s 501(3A) of the Migration Act 1958 (Cth) because she did not pass the character test (because the sentence was for a period of 12 months or more) and because she was serving a full-time sentence of imprisonment for an offence against Australian law.

The applicant filed her application for leave to appeal against conviction on 6 January 2021.

Before turning to the grounds, it is useful to set out the principles to be applied when there is a challenge on appeal to a conviction following a plea of guilty, which were summarised in R v Thalari (2009) 75 NSWLR 307; [2009] NSWCCA 170 by Johnson J (Young JA and Latham J agreeing) as follows:

The ultimate question for this Court is whether the applicant has shown that there has been a miscarriage of justice. It is convenient to approach the broader question by reference to the particulars set out in the notice of appeal reproduced above, save for particular 9, which is non-specific.

Mr Bonnici submitted that the wording of the indictment as to the charge was bad in law in that the element of knowledge, as to the baby formula 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. He submitted that the applicable offence with which the applicant ought to have been charged was receiving stolen goods. He argued that, had this offence been charged, the Crown would have had to prove that the applicant knew that the baby formula was stolen. He sought to draw assistance from the Criminal Code Act 1995 (Cth) and, in particular, s 5.4(4), which provides that “[i]f recklessness is a fault element for a physical element of an offence, proof of intention, knowledge or recklessness will satisfy the fault element.” This provision is not applicable to an offence under the Crimes Act and, in any event, says no more than that intention is sufficient to prove recklessness, which is the effect of s 4A.

I reject Mr Bonnici’s submission. The charge to which the applicant pleaded guilty was the charge of reckless dealing of proceeds of crime under s 193B(3), not dealing with knowledge under s 193B(2). In these circumstances, while the Crown must prove that the goods (the baby formula) were stolen (and it was ultimately common ground in this Court that the goods were stolen), the Crown does not have to prove that the applicant knew that the goods were stolen. All that was required was that the applicant was aware of the possibility that the goods were stolen and decided to deal with them notwithstanding this possibility. This element of an offence under s 193B(3) was consistent with the applicant’s admissions in her ERISP and to Mr Awit (set out above).

Particular facts may give rise to any number of charges. The choice of charge is a matter for the prosecutor in the exercise of a discretion and is not reviewable by this Court: Magaming v The Queen (2013) 252 CLR 381; [2013] HCA 40 at [20] and [25] (French CJ, Hayne, Crennan, Kiefel and Bell JJ).

The phrase that forms the basis for this particular is derived from the following passage from R v Murphy [1965] VR 187 at 190-191 (Sholl J):

In the present case, the applicant has not shown that she did not plead guilty through a consciousness of her guilt to an offence under s 193B(3). Indeed, she had been prepared, at committal (when she had been advised by different, unidentified lawyers) to plead guilty to that very offence and was pleased when, on 6 March 2020, the Crown put back to her the offer which she had made to resolve the matter pre-committal. In addition to the admissions made by the applicant in her ERISP and to Mr Awit, the draft Crown case statement was redolent with facts which indicated that the applicant was at least aware of the possibility that the baby formula which she was purchasing was stolen and decided to purchase it anyway.

Mr Bonnici made several allegations against the applicant’s legal representatives, including that Mr Shukoor failed to advise the applicant as to the strength of the Crown case against her and pressured her into agreeing, subject to the agreed statement of facts, to plead guilty.

None of the allegations has been made out. The criticisms made of the applicant’s legal representatives were principally made against Mr Shukoor, although some allegations were also made against Mr Park for what occurred on 27 March 2020.

Mr Shukoor presented as an experienced, competent defence counsel who was alert to potential difficulties with representation (and wrote to Ms Chand to ensure that he was briefed only on behalf of the applicant because of the potential for conflict referred to above). He was conscientious and read the whole brief of evidence between 26 February 2020 (when he received the brief of evidence) and 6 March 2020, when he had been briefed to appear at the super call-over. His advice that the Crown case against the applicant for the offence contrary to s 193B(3) was strong has not been shown to be other than a correct assessment of the applicant’s prospects. Indeed, so much is evident from the draft Crown case statement, as elucidated in Mr Shukoor’s evidence.

Although he was not briefed to appear on 27 March 2020, Mr Shukoor was actively involved in the negotiations with the ODPP in the period from 6 March 2020 to 27 March 2020 about the statement of agreed facts, with a view to placing the most benign version of the facts before the Court for the proceedings on sentence. The ODPP responded to Mr Shukoor’s suggestions on 23 March 2020. Mr Shukoor provided an amended draft to the ODPP which he also provided to Ms Chand, who forwarded it to the applicant via Rosemary’s email (which was the only method ever used in the course of the matter to transmit written material to the applicant). Earlier drafts of the agreed facts provided by the ODPP included details of the amounts of baby formula which the ODPP said amounted to proceeds of crime which arose from the offending conduct. Mr Shukoor obtained a concession from the ODPP that not all of the baby formula in the applicant’s possession amounted to the proceeds of crime. In these circumstances, it was no longer necessary for the applicant to establish, for the purposes of the agreed facts, which part of the cash found in her possession was legitimate. Therefore, invoices which tended to show that the applicant had engaged in some transactions with legitimate wholesalers who provided invoices recording the transactions were no longer required. Mr Shukoor gave evidence that the receipts that were provided to him by the applicant legitimised “next to nothing” having regard to the ambit of the criminality, as reflected by the amount of cash found in the applicant’s home and the 4,000 tins of baby formula found at Jay’s wife’s residence.

The evidence before this Court, in the form of highlighted drafts of the agreed statement of facts, establishes Mr Shukoor’s appropriate and commendable attention to detail to advance the interests of the applicant. I accept Mr Shukoor’s opinion set out in his email dated 27 March 2020 as follows:

Further, Mr Shukoor negotiated facts for the agreed statement which were not strictly necessary but which he considered would advance the applicant’s position. The following agreed facts, which were included at his instigation are examples:

Mr Shukoor explained in oral evidence that paragraph 38 was included at his request to ensure that, notwithstanding the high level of recklessness on the part of the applicant, the sentencing court did not make an error by breaching the principle in De Simoni v The Queen (1981) 147 CLR 383; [1981] HCA 31 by sentencing on the basis of knowledge (being the more serious offence under s 193B(2)) rather than recklessness (being the relevant mental state for an offence under s 193B(3)).

Further, Mr Shukoor explained that he sought that the following fact be included because he wanted to avoid either Rosemary or Jay being defamed in the agreed statement of facts in circumstances where a no bill was to be filed in respect of the charge against each of them:

Mr Bonnici tried to characterise this agreed fact as an admission by the Crown which could be used by him in this Court to establish that the Crown could never have proved that either of the children was guilty of the offence charged against them (being an offence against s 193B(2)). This submission is misconceived. The status of agreed facts derives from s 191(1) of the Evidence Act 1995 (NSW), which defines “agreed fact” as “a fact that the parties to a proceeding have agreed is not, for the purposes of the proceeding, to be disputed.” The relevance and operation of the statement of agreed facts signed by the applicant and the Crown was limited to the issues between the applicant and the Crown. It did not establish the matter as a stand-alone fact and therefore cannot be used to assess the strength of the Crown case against Rosemary or Jay.

Where there is a strong Crown case against an accused person, it is generally, if not inevitably, in the interest of an accused to plead guilty. First, there is a discount for a plea of guilty. Secondly, a plea of guilty affords the accused the opportunity to agree on the factual basis which will bind the sentencing judge, which may be more favourable to an accused than the evidence at trial, which would otherwise form the factual basis for the sentence in accordance with the principles in The Queen v Olbrich (1999) 199 CLR 270; [1999] HCA 54 at [27], per Gleeson CJ, Gaudron, Hayne and Callinan JJ. Thirdly, in addition to the express discount for the utilitarian value of a plea of guilty, there are several factors which are relevant to the sentencing discretion, such as contrition, remorse, prospects of rehabilitation and chance of re-offending, which tend to be advanced by a plea of guilty rather than allowing the matter to go to trial. I am not persuaded that the applicant’s legal representatives fell short of the appropriate standard in any respect.

Mr Shukoor and Ms Chand accepted, in cross-examination, that neither had explained to the applicant the terms of the fresh indictment filed on 27 March 2020 as neither was present at court on 27 March 2020. However, it does not follow that the applicant did not understand to what offence she was pleading guilty. The difference between recklessness and knowledge (and therefore an offence contrary to s 193B(3) and s 193B(2)) had been adequately explained to her by Mr Shukoor on 6 March 2020, which led to her in-principle agreement on that day that she would plead guilty to the lesser offence. The condition that the plea not be taken until the facts had been agreed was one which was imposed by the ODPP and not by the legal representatives for the applicant.

Ms Chand gave evidence in a straightforward manner. She was hampered by the circumstance that Sydney Criminal Lawyers (with which she was no longer associated as she had left to set up her own firm) had shredded the file and, with it, her detailed file notes of conversations with the applicant and of the super call-over on 6 March 2020. Nonetheless, she had considerable recollection of the matter and of the occasion, which I accept as accurate.

The allegations against Mr Park were that he failed to explain the fresh indictment to the applicant and that he failed to ensure that the interpreter translated the whole of the statement of agreed facts to her before she signed it. While I accept that Mr Park did not explain the charge in the fresh indictment to the applicant in terms, there was no need for him to do so. She had obtained details and comprehensive advice from Mr Shukoor on 6 March 2020. Her plea on 27 March 2020 reflected her agreement in principle to that course on 6 March 2020. Further, Mr Park was careful to document his instructions from her and have them translated before she was asked to sign his file note recording what occurred. When the applicant was arraigned on the fresh indictment, the indictment was translated for her by an interpreter before she entered her plea.

Mr Park gave his evidence in a competent manner. He regularly resorted to reference to his usual practice where he had no particular recollection. I accept his evidence.

As set out above, I am satisfied that, on 6 March 2020, Mr Shukoor advised the applicant of the elements of the offence (reckless dealing with the proceeds of crime) which was the subject of the Crown offer at the super call-over. He also advised her of the strength of the Crown case in respect of that charge. There was a qualified Mandarin interpreter who translated what he was saying to her. Further, as referred to above, she had been prepared to plead guilty to that offence since before committal.

Further, the applicant had the opportunity to comment on the various drafts of the statement of facts in the days leading up to 27 March 2020 and to have them translated for her with the assistance of a Mandarin interpreter. This process was completed before she entered her plea to the offence under s 193B(3).

The first part of this particular would appear to be a reiteration of the first particular. The second part would appear to be a reiteration of particulars (3) and (4) above. It is, accordingly, not necessary to address this particular further.

The principal basis for the allegation that the prosecuting authorities misconducted themselves is that Mr Alder offered to file a no bill in respect of the indictments presented against Rosemary and Jay as long as the applicant and her partner pleaded guilty to the s 193B(3) offence. Mr Bonnici argued that this led to the applicant being improperly influenced by concern for her children and agreeing to plead guilty to an offence to which she would otherwise have maintained her plea of not guilty. I understood him to submit that it was improper on the part of the prosecuting authorities to maintain the charge against Rosemary and Jay because the evidence against them was weak and that the effect of maintaining such charges was to bring inappropriate pressure to bear on the applicant to plead guilty. Mr Bonnici repeatedly submitted that the ODPP’s position was that the only basis on which the charges against Rosemary and Jay would be withdrawn was if the applicant pleaded guilty. Although Mr Bonnici expressly eschewed an allegation of misconduct against the ODPP, he contended that the ODPP used the withdrawal of the charges against the children as a “bargaining chip” to induce the applicant to plead guilty.

The evidence does not support these submissions. The applicant said in her evidence that she had several motivations for pleading guilty: to save the considerable cost of a trial, to obtain the expected discount for the plea, to obtain a lesser sentence than if she was convicted after trial, and, most importantly, that if she did not plead to the lesser offence contrary to s 193B(3), she would have to go to trial for the offence contrary to s 193B(2), for which the maximum penalty was an additional five years’ imprisonment. It may be that she was also motivated by concern for her children, a concern which she nominated in her evidence but did not communicate to her legal representatives. There is no basis for any suggestion that the applicant was induced to plead to a more serious offence than was appropriate in return for the withdrawal of the charges against her children. Indeed, to the contrary, she obtained the considerable benefit in the course of the plea negotiations at the super call-over of having the Crown offer to accept a plea to a lesser charge than the one for which she had been indicted. I accept Mr Shukoor’s opinion that there was evidence which could have established the more serious charge to the requisite standard against the applicant contrary to s 193B(2) and that the evidence to establish that the applicant had committed an offence under s 193B(3) (being the lesser charge to which the Crown offered to accept a plea) was strong.

Further, it does not follow from the fact that the ODPP was prepared to withdraw the charges against Rosemary and Jay if the applicant and her husband pleaded guilty, that the only reason the children were charged was to obtain pleas from the applicant and her partner or that the ODPP would not have filed a no bill if an application for a no bill had been made by either or both of Rosemary or Jay.

It is also highly significant that on 8 October 2019, when the applicant and her partner offered to plead guilty to an offence under s 193B(3), that offer was not dependent on the withdrawal of charges against Rosemary or Jay. Indeed, the proposal was that the charges against Rosemary and Jay be committed for trial. This is powerful evidence that the fate of her children was not a determining factor in the applicant’s decision to plead to the charge under s 193B(3). When the withdrawal of the charges was offered by Mr Alder on 6 March 2020, this was, from the applicant’s perspective, an added bonus, rather than a “bargaining chip” or “leverage” to induce her to plead.

I accept the Crown’s submission that there was nothing improper in the Crown agreeing to accept the applicant and her partner’s plea as part of a package which would include the Crown filing a no bill in respect of the children.

Mr Bonnici submitted that Hanley SC DCJ ought to have granted an adjournment on 27 March 2020 to give the applicant further time to consider the form of the draft agreed facts before she entered the plea on that date. While it would have been open to Judge Hanley to stand the matter over further, I discern no error in his Honour’s decision either to list the matter for hearing or to take the plea on the fresh indictment. This decision had no adverse consequences for the applicant.

An accused person is, as referred to above, entitled to change a plea at any time from not guilty to guilty. On several occasions, Mr Bonnici referred to the applicant’s change of plea to guilty as amounting to a “traversal” of her plea of not guilty when she was first arraigned in the District Court on 19 December 2019. This expression is inapt. A change of plea from not guilty to guilty is not a “traversal” of the plea; it constitutes the exercise of a right which can be exercised at will by an accused person. A change of plea from guilty to not guilty is, however, a traversal and cannot be done without leave of the court. A plea of guilty amounts to an admission of the elements of the offence and, as such, cannot be withdrawn at will.

Had the applicant not been prepared to sign the draft agreed statement of facts on 27 March 2020, she could have allowed the trial date to be set. She had been expressly advised by Mr Shukoor and Ms Chand that she was at liberty to defend the matter at trial and that she ought feel no pressure to plead guilty. Had his Honour granted the adjournment and had the applicant decided not to plead guilty, her trial date would have been inevitably delayed. His Honour was entitled to be concerned about setting a trial date if the plea was not taken.

I do not accept that comments made by the sentencing judge on 24 June 2020, approximately three months after the applicant entered her plea to the fresh indictment on 27 March 2020, could bear on the plea, as opposed to the sentence imposed on 24 June 2020.

I am not satisfied that the applicant did not understand the nature of the charge, or did not intend by her plea to admit her guilt of the offence. To the contrary, the evidence adduced in this Court established that the applicant understood the distinction between an offence under ss 193B(2) and (3) and had been prepared, since at least pre-committal, to plead to a charge under s 193B(3). The first time the ODPP agreed to accept such a plea was on 6 March 2020 at the super call-over. On that day, after having received detailed and comprehensive advice from Mr Shukoor, she agreed in principle to accept the offer. There followed, up until 27 March 2020, detailed negotiations between the parties as to the agreed facts. Mr Bonnici has not been able to identify any basis on which the agreed facts were not as favourable to the applicant as they could have been or any remaining contention regarding the agreed facts which affected the validity or appropriateness of the plea.

For the reasons given above, I am not satisfied that a miscarriage of justice has occurred.

For the reasons given above, I propose the following orders:

I agree with the reasons of Bellew J on the sentencing appeal and with the orders which his Honour proposes.

BELLEW J: I have had the advantage of reading in draft the judgment of Adamson J.

In respect of the application for leave to appeal against conviction, I agree with the order that her Honour proposes, for the reasons that her Honour has given. There are, however, two observations that I wish to make.

The first concerns Mr Shukoor, who was cross-examined before this Court at considerable length. In the course of that cross-examination, many of the determinations made by Mr Shukoor in the course of advising and appearing for the applicant were subject to close scrutiny. For the reasons given by Adamson J in determining the application for leave to appeal against conviction, I am satisfied that nothing done by Mr Shukoor, on any asserted failure on his part, gave rise to a material irregularity, or a miscarriage of justice. For the reasons set out below, I have come to the same view in relation to those grounds advanced in support of the application for leave to appeal against sentence which questioned Mr Shukoor’s competence. In arriving that those views, I have had regard to the fact that, having had the opportunity to observe him during the course of cross-examination, Mr Shukoor impressed me as counsel who, at all times, discharged his professional responsibilities to the applicant in a manner which was careful, conscientious and diligent.

The second concerns the submission, repeatedly advanced by counsel for the applicant in support of the application for leave to appeal against conviction, that the ODPP had induced the applicant to enter a plea of guilty in a manner which was intimidatory and/or unfair. Counsel advanced, as the primary basis of that submission, the circumstances surrounding the decision of the ODPP to discontinue the proceedings which had been brought against the applicant's children. Although in doing so, counsel specifically eschewed the suggestion that he was alleging prosecutorial misconduct, he did put to the Court that the ODPP had engaged in what he described as “prosecutorial impropriety”. Any attempted distinction between prosecutorial misconduct and prosecutorial impropriety is, in my view, a distinction without a difference. More importantly, as Adamson J has pointed out, there was insufficient evidence to support the submission, however it might be labelled. The submission encompassed a most serious allegation. Advancing it in the absence of evidence to support it was, in my view, improper in itself. The submission should never have been made.

The essential facts of the offending found by the sentencing judge may be shortly summarised as follows.

A strike force was formed by the NSW State Crime Command to investigate the theft, and subsequent distribution, of baby formula. The thefts were identified as having been committed at various stores across Sydney, the Central Coast and Newcastle between about November 2017 and August 2018.

The applicant operated a business which she described as a “gift shop”, and from which she sold baby formula and miscellaneous goods.

A number of the persons identified as being responsible for the thefts informed police that they had sold the stolen baby formula to the applicant and had, for that purpose, met with the applicant at various locations. Those locations included a rear lane behind the applicant’s business premises in Bankstown, and suburban car parks, after hours.

An analysis of the applicant’s mobile phone established that she had used the phone app known as “WeChat” to facilitate contact with persons in China, to whom she sold the stolen baby formula at a profit between November 2017 and August 2018.

It is noted that the applicant appeared for sentence with her partner (the co-offender) who had pleaded guilty to the same offence.

A report of Chafic Awit, Psychologist, dated 3 June 2020 was tendered before the sentencing judge. I draw the following summary of the applicant's background from that report, which was prepared following two interviews.

The applicant is 51 years of age and was born in China. She is the second eldest of six children and experienced a generally poor upbringing. She completed only 6 years of formal education, leaving school when she was 13 years of age. Thereafter, she was employed in various paid positions, including as a factory worker and a bank teller.

Following her separation from her partner, the applicant migrated to Australia with her two children in 2002. Her partner subsequently migrated to Australia around 2008, following which their relationship recommenced.

After arriving in Australia, the applicant worked spasmodically between 2002 and 2005, before commencing in a “pick/packing” role in a fruit factory where she remained until she suffered a wrist injury in 2012. She then established the business to which I previously referred, which closed down in September 2019 due to the proceedings brought against her.

The applicant told Mr Awit that she had commenced experiencing symptoms of anxiety and depression following her separation, and had been referred for psychological and psychiatric intervention. However, it was in fact not until 2018 that she commenced seeing a psychologist, Ms Ng. Ms Ng provided a short report in which she confirmed that the applicant had consulted her on 13 occasions between 26 October 2018 and 22 April 2020 for treatment of symptoms of depression, anxiety and stress. The applicant then commenced seeing a psychiatrist, Dr Chan, in 2019, who provided a short report in which he confirmed that the applicant had consulted him on 6 occasions between 16 May 2019 and 31 March 2020. Dr Chan diagnosed the applicant as suffering from major depression, and prescribed anti-depressant medication.

Mr Awit concluded that the results of the psychometric testing he had administered were consistent with the applicant suffering from extreme depression, and that her reported symptoms met the diagnostic criteria for generalised anxiety disorder and major depressive disorder.

There was no issue on sentence that the applicant was a person of prior good character. A number of references tendered to the sentencing judge attested to her work in her community, and to her good character generally. The applicant did not give evidence in her sentence proceedings, but provided an unsworn statement to the sentencing judge in which she expressed her remorse for the offending.

I have set out the grounds of appeal in the precise terms in which they were drafted.

Mr Awit’s report included the following:

Having set out his diagnoses, Mr Awit continued:

Mr Awit emphasised that his opinions were based on the applicant’s reported history of symptoms, the results of psychometric testing, his analysis of the applicant’s offending behaviour, and the application of relevant diagnostic criteria.

In the course of oral submissions in the sentence proceedings, the Crown took issue with Mr Awit’s opinion as to the existence of a causal nexus between the applicant’s mental state and her offending. The Crown submitted that in light of the sophisticated nature of the offending, such opinion was deserving of little weight.

In written submissions provided to the sentencing judge, Mr Shukoor advanced the proposition that there was such a causal nexus. In a lengthy exchange with Mr Shukoor in the course of the sentence proceedings, her Honour expressed a preliminary view that there was nothing in the report of Mr Awit to support a conclusion that the applicant was suffering from symptoms of mental illness at the time of her offending. The exchange ended with Mr Shukoor making the following submission to her Honour:

The sentencing judge reached the following conclusions as to the applicant’s mental health:

The essence of counsel’s submission was that a miscarriage of justice had arisen as a consequence of Mr Shukoor’s failure, in the face of her Honour’s indications that she was having some difficulty in accepting Mr Awit’s opinion, to seek an adjournment of the sentence proceedings in order to obtain further evidence.

Counsel for the applicant submitted, in particular, that “there should have been more fully and properly obtained instructions and investigation on this mental health and psychological health issue” on the part of Mr Shukoor, because the applicant’s mental state “did not arise overnight”.

The Crown submitted that there was nothing to suggest that the sentencing judge had been deprived of relevant evidence in respect of any aspect of the applicant's subjective case. It was submitted that there was simply no evidence that the applicant had been suffering from any mental health issue(s) in the period leading up to, or at the time of, the offending. It was further submitted that counsel’s reference to the applicant's mental state not having arisen “overnight” was an assertion which was entirely unsupported by the evidence.

As is the case with a number of the grounds relied upon in support of the application for leave to appeal against sentence, this ground does not assert an error on the part of the sentencing judge. Rather, it asserts incompetence on the part of Mr Shukoor in failing to seek an adjournment to obtain further evidence once it became clear that her Honour was having some difficulty accepting Mr Awit’s opinion.

As a general proposition, a party to proceedings is bound by the conduct of his or her counsel, who has a wide discretion as to the manner in which the proceedings are conducted: R v Birks (1990) 19 NSWLR 677; TKWJ v The Queen (2002) 212 CLR 124; [2002] HCA 46. In order to succeed on any ground which asserts incompetence on the part of Mr Shukoor arising from his conduct of the sentence proceedings, the applicant must establish that something done by Mr Shukoor, or something that he omitted to do, has given rise to a miscarriage of justice. This requires consideration of:

Put simply, what occurred in the present case was that the sentencing judge raised an issue concerning what she considered to be the reliability of Mr Awit’s opinion as to the existence of a causal connection between the applicant's mental state and her offending. It is obviously not uncommon for a sentencing judge to raise issues which he or she considers arise from the evidence, so as to give counsel the opportunity to address them.

In the present case, the applicant did not suggest to Mr Awit that she was suffering from any symptoms of any mental illness at the time of the offending. There was no evidence that the applicant had raised any mental health issue with any treating health professional prior to her arrest. The evidence established that the applicant had not been referred for any psychological or psychiatric treatment until after the offending had ceased. She had also told Mr Awit that she had “always felt that she could handle her symptoms”. In all of these circumstances, the fact that her Honour raised an issue regarding the veracity of Mr Awit’s opinion is entirely unsurprising.

In his affidavit, Mr Shukoor set out the matters which caused him to take the position that he did. They included the fact that:

These aspects of Mr Shukoor’s evidence were not the subject of cross-examination.

Mr Shukoor was obviously conscious of the weaknesses in this aspect of the applicant’s subjective case well before her Honour raised any issue. The overwhelming conclusion is that he formed the view that the shortcomings in the evidence could not be rectified. In the circumstances I have outlined that view was both entirely reasonable, and completely understandable.

It is also noteworthy that Mr Shukoor made reference to the fact that he had formed the view that the opinions expressed by Mr Awit were based upon assertions made by the applicant which he (Mr Shukoor) considered to be “verifiably false”. That evidence was also unchallenged.

This is clearly not a case in which Mr Shukoor ignored the issue of the applicant's mental health in his preparation and conduct of the sentence proceedings. On the contrary, I am satisfied that he considered that issue carefully, and that he took the decisions to which he referred in his affidavit in a careful and measured fashion. No material irregularity, and no miscarriage of justice, have arisen as a consequence of anything done or not done by Mr Shukoor in this respect.

For these reasons this ground is not made out.

The written submissions provided by Mr Shukoor to the sentencing judge contained the following under the heading “Assessing Objective Gravity”:

The submissions went on to cite, in a comprehensive fashion, a series of factors which were relevant to her Honour’s assessment of the objective seriousness of the applicant's offending. As might be expected from any counsel adopting a balanced and responsible approach to such an issue, some of those factors assisted the applicant, whilst others did not. In addressing aggravating factors, Mr Shukoor’s submissions accepted that the offending was planned and organised.

The sentencing judge found that the objective seriousness of the offending fell above the mid-range, and that the applicant’s level of recklessness fell at the upper range. In reaching those findings, her Honour had regard to (inter alia) the fact that the applicant:

Many of the submissions advanced by counsel for the applicant in support of this ground repeated those advanced in support of particular (1) of the application for leave to appeal against conviction, which raised an issue as to the terms of the indictment. In light of the conclusion reached in respect of that particular, those submissions cannot be accepted.

However, in support of this ground counsel also took particular issue with Mr Shukoor’s concession before the sentencing judge that the offending was planned and organised. It was submitted that such a proposition had a tendency to convey the suggestion that the applicant had knowledge of the fact that the goods were proceeds of crime, as opposed to being reckless as to that fact. Counsel went so far as to submit that on the whole of the evidence, aspects of the applicant’s offending were properly regarded as “spontaneous” and “ad hoc”.

The Crown submitted that the concession that the offending was organised and planned was entirely appropriate in light of the evidence. The Crown submitted that this was an obvious concession to make given (inter alia) the circumstances in which the applicant had met with those responsible for the thefts for the purposes of receiving the stolen baby formula.

In my view, no part of any submission advanced by Mr Shukoor, be it orally or in writing, had any tendency whatsoever to convey a suggestion that the applicant had acted with knowledge rather than recklessness. Indeed, Mr Shukoor’s written submissions specifically drew a distinction between the two states of mind. Moreover, on the entirety of the evidence, Mr Shukoor’s concession that the offending was entirely appropriate. The fact that the applicant engaged in a sustained course of offending over a period of nine months could not, as counsel for the applicant submitted, be regarded in any sense as conduct which was spontaneous or ad hoc.

It follows that no material irregularity, and no miscarriage of justice, have arisen as a consequence of anything done or not done by Mr Shukoor in terms of his assessment of, and submissions as to, the seriousness of the applicant’s offending.

For these reasons, this ground is not made out.

In her unsworn statement tendered to the sentencing judge the applicant said the following:

Other than what was said in that statement, there was no other reference in the evidence, or in the sentence proceedings, to the possibility of the applicant being deported as a consequence of any penalty imposed by the Court.

In her affidavit of 21 June 2021 which was read on the application for leave to appeal against sentence, the applicant said:

There is no dispute 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.

The evidence of Mr Shukoor was that he understood that his instructing solicitor had referred the applicant to a lawyer experienced in migration law, in order to allow her to obtain advice in relation to the potential ramifications of the proceedings on the continuation of her visa. Mr Shukoor went to some lengths to point out that even if the applicant had asked him for advice in relation to this issue, he would have deferred to any advice provided to her from an appropriately qualified migration lawyer or migration agent. He went on to say that in circumstances where any determination of deportation would necessarily depend on a variety of factors, he did not consider it permissible to ask the sentencing judge to structure a sentence which would alleviate the risk of deportation. None of this evidence was challenged.

Counsel for the applicant submitted that the applicant’s likely deportation upon her release from custody constituted a “real and exceptional hardship” which had not been drawn to the attention of the sentencing judge by Mr Shukoor. Although not expressly stated, inherent in this submission was the proposition that Mr Shukoor’s omission to do so gave rise to a miscarriage of justice.

Put simply, the Crown submitted, by reference to authority, that the question of deportation was irrelevant on sentence.

No aspect of Mr Shukoor’s approach to the issue of the applicant’s deportation gives rise to a material irregularity or a miscarriage of justice. Moreover, the submissions of counsel for the applicant are contrary to authority. Even if the applicant’s deportation was considered inevitable, that was irrelevant to the sentencing exercise. Had her Honour taken it into account, she would have been in error: R v Van Hong Pham [2005] NSWCCA 94 at [13] – [14] per Wood CJ at CL.

For these reasons, this ground is not made out.

As to ground (13)(i) Mr Awit, stated the following:

As to ground (13)(ii), the Sentence Assessment Report included the following:

As to ground 13(3)(iii) the applicant's record of interview formed no part of the evidence which was tendered by the Crown before the sentencing judge. The agreed statement of facts contained the following references to that interview:

The applicant's submissions in support of this ground essentially repeated those advanced in support of particular (1) of the application for leave to appeal against conviction concerning the terms of the indictment.

The Crown submitted that there was no basis on which it had been open to the sentencing judge to reject the applicant's plea. Whilst acknowledging that circumstances may arise where it is incumbent upon a sentencing judge to reject a plea of guilty where an essential element of the offence is traversed, the Crown submitted that this did not occur in the present case because the three statements upon which this ground relied were not inconsistent with the plea of guilty which had been entered.

As Adamson J has pointed out (at [187]) in addressing the first particular of the application for leave to appeal against conviction, the Crown did not have to prove that the applicant knew that the baby formula was stolen. What the Crown had to prove was that the applicant was reckless as to that fact, or in other words, that she was aware of the possibility that the baby formula was stolen, and decided to deal with it, notwithstanding that possibility. In this respect, the reference in this ground of appeal to “the crucial element of knowledge” is entirely misplaced. The applicant was not charged with an offence that required proof of knowledge.

Neither the statements attributed to the applicant by Mr Awit, nor those attributed to the applicant by the author of the Sentence Assessment Report, were at odds with the element of recklessness that the Crown was required to prove, and which the applicant had conceded by virtue of her plea. Similarly, at their highest, the applicant’s statements in the record of interview to which reference was made in the agreed facts (bearing in mind that the entirety of the interview was not before the sentencing judge) were to the effect that she did not know that the baby formula was stolen. That did not amount to a traversal of her plea, because the Crown was not required to prove such knowledge.

For these reasons, this ground is not made out.

The findings of the sentencing judge as to the applicant’s role have been previously set out at [260] above.

The written submissions upon which counsel for the applicant relied did not precisely articulate the particular matter(s) to which her Honour is said to have ascribed too much weight. A complaint appeared to be made as to the manner in which her Honour addressed the issue of money derived by the applicant from her offending, as well as a complaint that her Honour’s reasons reflect a finding that the applicant had “organised” those responsible for the theft of the baby formula.

In short, the Crown submitted that the sentencing judge was bound to, and did, consider the agreed facts, and that her reasons reflect findings made in accordance with those facts.

The terms in which this ground is drafted, and the submissions in support of it, are both vague and imprecise. The ground does not specify the facts to which her Honour is said to have ascribed too much weight. Moreover, if it is assumed that the reference to “related stealing offences” is a reference to the theft of the baby formula, it was not part of the Crown case against the applicant that she participated in such theft. Accordingly, the reference in the ground of appeal to the “real role of the applicant's conduct in the … related stealing offences” is something of a non-sequitur.

The nature and extent of the applicant’s offending was encapsulated in the agreed facts which were before her Honour. Her Honour's findings as to the role of the applicant were entirely consistent with those agreed facts. Nowhere in her Honour’s judgment is there a finding that the applicant was responsible for “organising” those who had stolen the baby formula. The applicant's interaction with those persons was accurately described by her Honour in the findings set out at [260] above.

For all of these reasons, this ground is not made out.

The sentencing judge commenced her assessment of the applicant’s subjective case by referring to the fact that she had no prior convictions. Her Honour went on to summarise, at considerable length, the applicant's personal background which was set out in the report of Mr Awit. Her Honour also made express reference to the testimonials tendered on the applicant's behalf, and found that she was a person of otherwise good character. However, in light of the nature of the offending, her Honour considered that such prior good character was of less weight than would have been the case in an offence “which [was] a one-off aberration”. Her Honour made specific reference to the fact that the applicant had co-operated by participating in an interview with police, and accepted that her expressed remorse and contrition were genuine.

Her Honour summarised the contents of the applicant’s unsworn statement, and in doing so made specific reference to the applicant’s role within her family. The overwhelming inference is that her Honour generally accepted the contents of that unsworn statement, even though it was not tested by cross-examination.

Her Honour found that the applicant's prospects of rehabilitation were reasonable, but was concerned by the fact that she had engaged in multiple transactions over a significant period of time. In all of the circumstances, her Honour considered that the applicant was at risk of further offending.

Her Honour accepted that the applicant was presently suffering from a mental illness and that she was, as a consequence, someone upon whom a custodial sentence would weigh more heavily. In the latter context, her Honour made express reference to the applicant’s wrist injury sustained in 2012, and its effect on her physical condition. Her Honour also accepted that there would be an additional degree of hardship imposed upon the applicant in custody as a consequence of the current pandemic.

Her Honour regarded general deterrence as an important consideration, although she accepted that its significance was reduced on account of the applicant's mental illness. Her Honour also considered that personal deterrence and denunciation were relevant considerations.

Finally, her Honour made a finding of special circumstances in favour of the applicant on the basis that she would benefit from an extended period of supervision so as to ensure that she had the opportunity to address her ongoing mental health issues in the course of reintegrating into the community.

Counsel for the applicant submitted that the sentencing judge had “erroneously used objective facts to downgrade the [applicant’s] strong subjective factors”. It was submitted that there were a series of subjective factors “which should have been given far more weight” by the sentencing judge, namely:

The Crown submitted that all subjective factors that were open to be considered by the sentencing judge were, in fact, considered.

The gravamen of the applicant's complaint under this ground is that the sentencing judge should have given “far more weight” to each of the factors set out above. Inherent in that submission is an acceptance of the fact that the sentencing judge gave those factors some weight. This Court has observed on a number of occasions that attribution of weight to a particular factor or factors on sentence is a matter wholly within the discretion of the sentencing judge: R v Baker [2000] NSWCCA 85 at [11]; Ryan v R [2009] NSWCCA 183 at [33]. It follows that the circumstances in which issues of weight will justify intervention by this Court are narrowly confined.

The manner in which the sentencing judge assessed the applicant’s subjective case was, to say the least, comprehensive. Each and every one of the matters set out in the written submissions of the applicant was expressly referred to by the sentencing judge in her reasons. As to the matter in (8), I again note that the applicant was not charged with an offence which required the Crown to prove knowledge. In all of these circumstances, there is no occasion for intervention by this Court.

For these reasons, this ground is not made out.

These grounds may be conveniently dealt with together.

Before the sentencing judge, Mr Shukoor conceded that no penalty other than imprisonment was appropriate, but submitted that a custodial sentence of two years or less was warranted. He further submitted that in those circumstances, it was appropriate that any term of imprisonment be served by way of an Intensive Corrections Order. He urged, in the event that the sentencing judge was not minded to take that course, that her Honour make a finding of special circumstances. Whilst her Honour rejected the submissions that an Intensive Corrections Order was appropriate, she acceded to the submission as to special circumstances. In doing so, her Honour specifically referred to the statutory threshold set out in s 5 of the Crimes (Sentencing Procedure) Act 1999 (NSW) (the Sentencing Act).

Counsel for the applicant submitted the sentencing judge had erred in imposing a full-time custodial sentence in circumstances where:

It was further submitted that the applicant's conduct had amounted to nothing more than a “reckless mistake” and that her plea of guilty had saved a lengthy trial. It was submitted that in these circumstances, a sentence of full-time imprisonment should not have been imposed.

Whilst counsel for the applicant made what might be described as a general complaint of manifest excess, he advanced, effectively as a particular of that complaint, two further matters.

The first was a complaint of unjustified disparity between the sentence imposed on the applicant and that imposed upon her co-offender.

The second centred upon the fact that when the matter was still before the Local Court, the applicant had offered to plead guilty to a charge contrary to s 193B(3) of the Act, and that this offer had been refused by the Crown. Counsel pointed out that in circumstances where that plea had ultimately been accepted, and because of the necessity to have regard to the entire history of the proceedings, the Crown’s reliance before this Court on “procedural aspects to attempt to negate the real and substantive utilitarian value” of the plea were “incorrect and inappropriate”. Counsel’s submissions did not include any examination of the legislation creating those “procedural aspects” and did not otherwise articulate why the Crown’s position was said to be “incorrect and inappropriate”, although there was a passing reference to the fact that the copy of the case conference certificate provided to this Court (the significance of which I have discussed further below) was unsigned.

In terms of the general complaint of manifest excess, the Crown submitted that on the whole of the evidence, and particularly having regard to the applicant's role in the offending, the sentence imposed was not unreasonable or plainly unjust.

As to the parity issue the Crown, whilst acknowledging that the sentences imposed upon the applicant and her co-offender were disparate, submitted that such disparity was completely justified having regard to the applicant's role in the offending, compared with that of her co-offender.

As to the issue regarding the discount applied to reflect the applicant’s plea of guilty, the Crown submitted that the issue was governed by various provisions of the Sentencing Act and the Criminal Procedure Act 1986 (NSW) (the CPA). By reference to those provisions, which I have considered in detail below, the Crown submitted that the discount applied by the sentencing judge was assessed strictly in accordance with those provisions, and was therefore correct.

It is convenient to deal firstly with the parity issue.

The principle of equal justice requires, so far as the law permits, that like cases be treated alike. Equal justice also requires, where permissible, the different treatment of persons according to the differences between them. Consistency in the punishment of offences finds its expression in the parity principle which requires that like offenders be treated in a like manner, and which allows for different sentences to be imposed on like offenders to reflect different degrees of culpability and/or different circumstances: Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49 at [28].

The parity principle also recognises that equal justice requires that, as between co-offenders, there should not be a marked disparity which gives rise to one offender having a justifiable sense of grievance. The question is always one of due proportion being structured between those sentences which is to be determined having regard to the different circumstances of the co-offenders and their differing degrees of criminality: Postiglione v The Queen (1997) 189 CLR 295 at 301; [1997] HCA 26; Lowe v The Queen (1984) 154 CLR 606 at 610 – 611; [1984] HCA 49. Importantly, the sense of grievance necessary to attract appellate intervention with respect to sentences which are said to be disparate is to be assessed by objective criteria. It does not involve a judgment about the feelings of the person who complains of the disparity. It follows from all of these considerations, that this Court will refuse to intervene when disparity is justified by the differences between co-offenders: Green at [31].

The co-offender was sentenced to imprisonment for 1 year and 4 months. The sentencing judge determined that such imprisonment should be served by way of an Intensive Corrections Order. In the course of her reasons on sentence, her Honour observed that the applicant was the person who had direct contact with those responsible for the theft of the baby formula, and that most of the time she would directly meet with those persons for the purposes of purchasing it. Her Honour observed that “on occasions” the applicant would arrange for the co-offender to perform that role. Beyond that, none of the aspects of the applicant’s role which her Honour had identified were attributed to the co-offender. There was, therefore, a marked difference between the objective criminality of each of them.

In my view, the applicant has no justifiable sense of grievance arising out of the sentence imposed upon the co-offender. In the circumstances that I have outlined, and having regard to the conclusions of the sentencing judge, the role played by the applicant, and thus her criminality, was substantially higher than that of the co-offender. That completely explains the different sentences which were imposed.

In addressing the issue raised regarding the discount applied to the applicant’s plea of guilty, it is firstly necessary to set out some background.

The Justice Legislation Amendment (Committals and Guilty Pleas) Act 2017 (NSW) made a number of amendments to the CPA and the Sentencing Act which saw the introduction of what is generally referred to as the “Early Appropriate Guilty Plea Scheme” (the scheme). The scheme applies to all sentence proceedings for indictable offences, other than those specifically exempted by s 25A(1)(a) and (b) of the Sentencing Act, commenced on or after 30 April 2018. There is no issue that the scheme applied to the applicant’s proceedings.

A principal feature of the scheme was the introduction of a system of fixed discounts to reflect an accused’s plea of guilty in place of the calculation of such discounts in the exercise of discretion of a sentencing judge. The strict application of the scheme is reflected in s 25A(2) of the Sentencing Act which provides:

The scheme is given effect, firstly by a series of procedural provisions set out in the CPA, and secondly by a series of practical provisions set out in the Sentencing Act.

In terms of the procedural provisions, s 70 of the CPA mandates, as part of the scheme, the convening of a case conference, a principal objective of which is to determine whether there are any offences to which an accused person is willing to plead guilty: s 70(2).

Section 74 of the CPA requires that a case conference certificate be filed following the case conference. To the extent relevant for present purposes, s 75 of the CPA addresses the content of such a certificate, and provides:

Section 77 of the CPA addresses the situation where an accused person makes an offer to plead to an offence after the filing of the case conference certificate:

The chronology of events which are relevant to this ground commences in the judgment of Adamson J at [99]. However, for the purposes of considering this ground, and from the point of view of the procedure prescribed by the CPA, that chronology must be supplemented by reference to two additional matters.

Firstly, the copy of the case conference certificate provided to this Court by the Crown states that it was “filed on 31 October 2019 at Parramatta Local Court”. That is consistent with the fact that the applicant was committed for trial on that day.

Secondly, and significantly, the certificate did not record the applicant’s offer which was made on 8 October 2019 to plead guilty to an offence contrary to s 193B(3) of the Act, as was required by s 75(1)(b) of the CPA. The certificate stated the following:

The omission of any reference to the applicant’s offer, particularly where there was a reference to the Crown’s stated position, is not explained in the evidence. No affidavit from Mr Awada, the solicitor who had the carriage of the matter at the time and who communicated the offer, was filed in this Court. Mr Shukoor had not been retained in the matter at that point and in those circumstances, no allegation of incompetence was made against him in this respect.

In all of the circumstances I am left to conclude that the omission was simply a mistake, and was the result of the statutory requirement simply being overlooked, both by Mr Awada and by the solicitor from the ODPP who had the carriage of the matter.

Bearing in mind the procedural requirements of the scheme to which I have referred, and also bearing mind what occurred (and did not occur) in the present case in terms of those requirements, it is convenient to turn to the provisions of the Sentencing Act which prescribe the discount to be applied to reflect a plea of guilty. In doing so, it is relevant to note that s 25B of the Sentencing Act relevantly defines the term “negotiations document” as meaning:

In prescribing the applicable discounts, s 25D(2) provides as follows:

Section 25E makes provision for the application of a discount where a plea of guilty is offered by an accused person, but is refused by the Crown when it is made. That reflects, prima facie, what occurred in the present case. Specifically, ss 25E(2) and (3) provide as follows:

The Crown who appeared on sentence (who was not the Crown before this Court) provided written submissions to the sentencing judge in which he relied upon s 25D(2)(b) as the section which governed the discount, stating:

The written submissions of Mr Shukoor outlined the procedural history of the matter. Those submissions made reference to the procedural history of the matter, but did not refer to the applicant’s earlier offer. That is understandable, given that the offer was made well before he was retained in the matter. In those circumstances, Mr Shukoor accepted that the applicable discount was 10%.

The sentencing judge stated the following in her reasons:

It is evident that her Honour took the view that the provision which governed the discount was s 25D(3)(b). That was not the provision relied upon by the Crown, or by Mr Shukoor.

In any event, the Crown before this Court submitted that the discount of 10% applied by the sentencing judge was correct because:

It is important to note that the position taken by the Crown before this Court appeared to accept that the applicant met the conditions of s 25E(2)(b)-(d), in which case, leaving aside the asserted failure to comply with s 25E(2)(a), she would otherwise have been entitled to a discount of 25% as provided for by s 25E(3)(a).

There is no doubt that the case conference certificate is a “negotiations document”. There is also no doubt that there was no reference to the applicant’s offer in that certificate. The question, therefore, turns on the interpretation of the phrase “an offer recorded in a negotiations document” in s 25E(2)(a). The Crown advances a literal interpretation of that phrase, such that the absence of any reference to the applicant’s offer in the case conference certificate means that the offer was not “recorded”.

Acceptance of that interpretation would bring about a result which in my view could not possibly have been intended by the Parliament when enacting the scheme. Specifically in my view, it could not possibly have been the Parliament’s intention, in enacting s 25E, to bring about a result whereby an offender was deprived of the benefit of a significant discount on his or her sentence as the result of both parties to the proceedings simply overlooking a requirement to record the undisputed fact of a previous offer to plead guilty. That is particularly so in circumstances where the clear intention of the Parliament, reflected in s 75(1)(b), was that any offer to plead guilty to (inter alia) a different offence be recorded in the case conference certificate.

In all of these circumstances, I take the view that for the purposes of s 25E(2)(a), the phrase “an offer recorded in a negotiations document” as it appears in s 25E(2) should be construed as meaning “an offer which was recorded or which was required to be recorded in a negotiations document”. I have reached that view for a number of reasons.

Firstly, such an interpretation avoids what would otherwise be a plainly unjust outcome being visited upon the applicant.

Secondly, it is an interpretation which is consistent with the intention underlying s 75(1)(b) that offers be recorded.

Thirdly, it is consistent with principles of statutory interpretation, including that:

For the sake of completeness I should note that I have also considered whether s 25E was engaged by virtue of the provisions of s 77 of the CPA, but I am satisfied that it was not. The applicant’s offer of 8 October 2019 was not an offer made after the filing of the case conference certificate, and accordingly the requirement in s 77(1)(a) of the CPA was not met. The Crown’s offer to accept the plea which was made on 6 March 2020 was made after the filing of the Crown case statement, but not before the applicant was committed for trial (the applicant having been committed on 31 October 2019). Accordingly, once again the requirement in s 77(1)(a) of the CPA is not met. In this regard, it is to be noted that the requirements in ss 77(1)(a) to (d) are cumulative.

For these reasons, the sentencing judge erred by allowing a discount of 10%. The discount should have been 25%. I hasten to add, however, that in the circumstances of this case, there can be no criticism whatsoever levelled at her Honour for the course that she took.

Having found error, it is necessary for this Court to proceed to re-sentence the applicant in the fresh exercise of the sentencing discretion. The general complaint of manifest excess need not be considered in those circumstances.

In light of the conclusions I have reached, a discount of 25% should be applied to the sentence that would otherwise have been imposed.

Having considered the evidence, I adopt the findings of the sentencing judge as to the objective seriousness of the offending, and the level of the applicant’s recklessness. I also adopt the observations and findings of the sentencing judge in relation to the applicant's subjective case. The aspects of that subjective case were not insignificant. As against that, the seriousness of the offending was reflected in the fact that it was committed over a significant period of time, involved considerable planning and was conducted for what was, on the evidence, a substantial profit. I am also mindful of the fact that a subjective case, no matter how powerful, cannot be permitted to result in the imposition of a sentence which does not reflect the objective gravity of the offending.

In light of the applicant’s mental illness I am prepared to make a finding of special circumstances, on the basis that her rehabilitation will be assisted by a longer period on parole. In that regard I propose to adopt the ratio adopted by the sentencing judge, namely one of 66.67%.

For the foregoing reasons I propose the following orders: