Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Black v R [2022] NSWCCA 17 Hearing dates: 24 November 2021 Date of orders: 11 February 2022 Decision date: 11 February 2022 Before: Simpson AJA at [1] Ierace J at [56] Dhanji J at [57] Decision: 1. Leave to appeal granted. 2. Appeal allowed, the sentence imposed in the Supreme Court quashed. 3. The applicant be resentenced to a term of imprisonment made up of a non-parole period of 3 years, 7 months and 10 days commencing on 7 July 2018, and expiring on 16 February 2022, with a balance of term of 2 years 5 days, expiring on 21 February 2024. Catchwords: CRIME — sentencing — manslaughter — guilty plea — discount to be applied — whether utilitarian discount under s 25E(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW) is available where offer to plead guilty to an offence made but initially refused by prosecutor — statutory construction — whether alternative less serious offence is a "different offence" to the subject of the proceedings — found — 25% discount applied under operation of s 25E(3)(a) of the Crimes (Sentencing Procedure) Act 1999 (NSW) Legislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW) Criminal Procedure Act 1986 (NSW) Justice Legislation Amendment (Committal and Guilty Pleas) Act 2017 (NSW) Cases Cited: Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 Lehn v R (2016) 93 NSWLR 205; [2016] NSWCCA 255 R v Black (No 1) [2021] NSWSC 73 R v Black (No 2) [2021] NSWSC 77 R v Edigarov [2001] NSWCCA 436; 125 A Crim R 551 R v Holmes (No 7) [2021] NSWSC 570 R v Tailford (No 2) [2021] NSWSC 695 R v Thomson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309 Category: Principal judgment Parties: Benjamin Black (Applicant) The Crown Representation: Counsel: M Avenell SC (Applicant) B K Baker/K Beattie (Crown) Solicitors: Legal Aid NSW (Applicant) Solicitor for Public Prosecutions (Crown) File Number(s): 2018/143212 Decision under appeal Court or tribunal: Supreme Court of NSW Jurisdiction: Criminal Citation: [2021] NSWSC 77 Date of Decision: 12 February 2021 Before: Cavanagh J File Number(s): 2018/143212 Judgment 1. SIMPSON AJA: The sole issue for determination in this application for leave to appeal against sentence is the extent of the reduction on sentence to which the applicant is entitled as a result of his plea of guilty to a charge of manslaughter. So to state the issue disguises both its complexity and its importance. Resolution of the issue ultimately turns on the proper construction of Div 1A (ss 25A-25F) of Pt 3 of the Crimes (Sentencing Procedure) Act 1999 (NSW) ("the Sentencing Procedure Act"). 2. Part 3 of the Sentencing Procedure Act addresses "Sentencing procedures generally". Prior to the enactment of Div 1A, s 22(1) provided that a court passing sentence on an offender who has pleaded guilty must take into account that fact, the timing of the plea or indication of an intention to plead guilty and the circumstances in which that indication is given, and may accordingly impose a lesser sentence than it otherwise would. A considerable body of case law developed in relation to the quantification of any such reduction in sentence, starting with R v Thomson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309. Numerous subsequent decisions have explained and refined the principles there discussed. By the amending legislation that introduced Div 1A into the Sentencing Procedure Act, a new subs (5) was inserted into s 22, limiting the effect of subs (1) to summary offences and some other (presently irrelevant) offences, and expressly excluding most offences dealt with on indictment. Division 1A constitutes a mandatory and exclusive code for the application of sentencing discounts for the utilitarian value of pleas of guilty to charges of indictable offences: ss 25A(2), 25D(1) and 25E(1). 3. Relevantly, s 25D and s 25E provide: 25D Sentencing discounts for guilty plea for offences dealt with on indictment (1) Mandatory nature of sentencing discount In determining the sentence for an offence, the court is to apply a sentencing discount for the utilitarian value of a guilty plea in accordance with this section if the offender pleaded guilty to the offence at any time before being sentenced. (2) Amounts of sentencing discounts The discount for a guilty plea by an offender (other than an offender referred to in subsection (3) or (5) or section 25E) is as follows— (a) a reduction of 25% in any sentence that would otherwise have been imposed, if the plea was accepted by the Magistrate in committal proceedings for the offence, (b) a reduction of 10% in any sentence that would otherwise have been imposed, if the offender was committed for trial and the offender— (i) pleaded guilty at least 14 days before the first day of the trial of the offender, or (ii) complied with the pre-trial notice requirements and pleaded guilty at the first available opportunity able to be obtained by the offender, (c) a reduction of 5% in any sentence that would otherwise have been imposed, if paragraph (a) or (b) does not apply. 25E Sentencing discounts to apply in certain cases where guilty plea offer made for different offences and refused when made (1) Discount where offer not accepted. In determining the sentence for an offence, the court is to apply a sentencing discount in accordance with this section if— (a) the offender made an offer recorded in a negotiations document to plead guilty to an offence, and (b) that offence (the "different offence") was not the offence the subject of the proceedings when the offer was made, and (c) the offer was not accepted by the prosecutor, and (d) the offer was not subsequently withdrawn, and (e) the offender was found guilty of the different offence or an offence that is reasonably equivalent to the different offence. For the purposes of this subsection, an offence is reasonably equivalent to a different offence if— (a) the facts of the offence are capable of constituting the different offence, and (b) the maximum penalty for the offence is the same or less than the different offence. (2) Discount where offer later accepted In determining the sentence for an offence, the court is to apply a sentencing discount for the utilitarian value of a guilty plea in accordance with this section if— (a) the offender made an offer recorded in a negotiations document to plead guilty to an offence, and (b) that offence (the "different offence") was not the offence the subject of the proceedings when the offer was made, and (c) the offer was refused but accepted by the prosecutor after the offender was committed for trial, and (d) the offender pleaded guilty to the different offence at the first available opportunity able to be obtained by the offender. (3) Discount variation—offer to plead guilty to different offence The discount to be applied by the court is as follows— (a) a reduction of 25% in any sentence that would otherwise have been imposed, if the offer was made before the offender was committed for trial, (b) a reduction of 10% in any sentence that would otherwise have been imposed, if the offer was made after the offender was committed for trial and at least 14 days before the first day of the trial of the offender, (c) a reduction of 5% in any sentence that would otherwise have been imposed, if the offer was made less than 14 days before or on or after the first day of the trial of the offender. 1. A "negotiations document" is defined in the Sentencing Procedure Act, s 25B to include a "case conference certificate" filed under Criminal Procedure Act 1986 (NSW), s 74 to which further reference will be made below, or any other document that records an offer to plead guilty to a specified offence made after committal for trial or sentence. 2. On 5 February 2021, in circumstances more fully to be recounted below, the applicant was arraigned in the Supreme Court on an indictment that charged him with one count of murder and, in the alternative, manslaughter. He entered a plea of not guilty to the murder count and a plea of guilty to the manslaughter count. The Crown accepted the plea of guilty to the charge of manslaughter in full satisfaction of the indictment. On 12 February 2021 the sentencing judge, Cavanagh J, sentenced the applicant to imprisonment for 6 years and 9 months and specified a non-parole period of 4 years and 4 months which is due to expire on 6 November 2022: R v Black (No 2) [2021] NSWSC 77. In so sentencing, in recognition of the plea of guilty, his Honour reduced by 10% the sentence he otherwise would have imposed. He took that course because he considered (and the Crown maintains) that the circumstances in which the plea was entered came within s 25D(2)(b)(ii) of the Sentencing Procedure Act. 3. The applicant contends that he was entitled, as a matter of law, to a reduction of 25% in accordance with s 25E(2) and subs (3)(a). Therein lies the issue for present determination. It is purely a question of statutory construction. If the applicant is correct, the head sentence imposed should be reduced by 13 months and 2 weeks and the non-parole period by approximately 9 months. He would become eligible for release on parole on 17 February 2022. Legislative context 1. Before moving to the facts, it is necessary to say something about the legislative context. Division 1A of Pt 3 was introduced into the Sentencing Procedure Act by the Justice Legislation Amendment (Committal and Guilty Pleas) Act 2017 (NSW) (to which I will refer as "the amending legislation"). The principal focus of the amending legislation was on the prosecution of indictable offences, specifically the committal stage of those prosecutions. Significant amendments were effected to Pt 2 (ss 47-120) of Ch 3 of the Criminal Procedure Act. Chapter 3 of the Criminal Procedure Act was and is directed to "Indictable procedure". Part 2 of Ch 3 was and is concerned with "Committal proceedings". By s 47, committal proceedings begin with the issue and filing of a court attendance notice (usually by a state or federal police officer). Section 47 was not affected by the amending legislation. What followed s 47 underwent significant revision. The amending legislation swept away the old procedures and installed an entirely new regime consisting of a number of steps to be taken progressively in the committal process. Where formerly a magistrate in the Local Court had an important role to play in the determination of whether a person accused of an indictable offence should be committed to the District Court or the Supreme Court for trial or for sentence, the role of the magistrate is now essentially supervisory, to ensure compliance with the procedural regime newly enacted. 2. The underlying purpose of the amending legislation, it is apparent, was to streamline committal procedures, with significant emphasis on cooperation between the prosecution and legal representatives of the accused person with a view to the identification of a charge or charges to which the accused person is prepared to plead guilty and which the prosecution is prepared to accept as a sufficient answer to the charges initially preferred. For that reason, the package of reforms has been dubbed "The Early Appropriate Guilty Pleas Scheme". 3. Section 55 of the Criminal Procedure Act outlines, in a summary way, the steps that are "generally" to be taken. Section 55 provides: 55 Outline of committal proceedings steps Subject to this Part, the steps for committal proceedings are generally as follows— (a) committal proceedings are commenced by the issuing and filing of a court attendance notice, (b) a brief of evidence is served on the accused person by the prosecutor, (c) a charge certificate setting out the offences that are to be proceeded with is filed in the Local Court and served by the prosecutor on the accused person, (d) if the accused person is represented, 1 or more case conferences are held by the prosecutor and the legal representative for the accused person, (e) if the accused person is represented, a case conference certificate is filed in the Local Court, (f) the accused person pleads guilty or not guilty to each offence being proceeded with and the Magistrate commits the accused person for trial (if the accused person pleads not guilty) or for sentence (if the accused person pleads guilty). Section 55 does not mandate or prescribe the procedures: rather, it is a useful compilation of what is prescribed in the succeeding provisions. 1. For the purposes of this application, it is only necessary to notice steps (c), (d) and (e). By s 67(1) a charge certificate must be filed by the prosecutor and served on the accused person no later than a date set by the magistrate. By s 66 a charge certificate is a document that has certain characteristics. Relevantly, a charge certificate: (a) relates to the offences specified in a court attendance notice for the committal proceedings, and (b) specifies the offences that are to be the subject of the proceedings against the accused person … 1. By s 70(1) (subject to some presently irrelevant exceptions) a case conference is to be held between the prosecutor and the legal representatives of the accused person, the principal objective of which is, by subs (2), to determine whether there are any offences to which the accused person is willing to plead guilty. Subsidiary objectives, also designed to facilitate the process, are stated in subs (3). 2. The present significance of the case conference is that, by s 74(3), a case conference certificate is to be completed and signed, and, by subs (4), filed by the prosecutor. By s 75(1) certain matters are to be certified in the case conference certificate, including, relevantly: (a) the offence or offences with which the accused person had been charged before the case conference and which the prosecution had specified in the charge certificate as offences that will be proceeding or are the subject of a certificate under section 166, (b) any offers by the accused person to plead guilty to an offence specified in the charge certificate or to different offences, … (e) the offence or offences for which the prosecution will seek committal for trial or sentence … 1. It is also necessary to notice ss 95-97, which appear in Div 8, under the heading "Committal for trial or sentence". Relevantly, those sections provide: 95 Committal timing generally (1) The Magistrate in committal proceedings is to commit the accused person for trial or sentence— (a) after the case conference certificate is filed under Division 5, or (b) if a case conference is not required to be held in the proceedings, after the charge certificate is filed under Division 4. (2) Despite subsection (1), a Magistrate may commit an accused person for sentence— (a) before a charge certificate is filed, if the prosecutor required to file the charge certificate advises the Magistrate that the prosecutor consents to the accused person being committed for sentence for that offence, or (b) if a charge certificate has been filed but no case conference has yet been held. … (4) Before committing an accused person under this section, the Magistrate must ascertain whether or not the accused person pleads guilty to the offences that are being proceeded with. 96 Committal for trial (1) The Magistrate must commit an accused person for trial for an offence unless the Magistrate accepts a plea of guilty to the offence by the accused person. … 97 Guilty pleas and committal for sentence (1) An accused person may at any time in committal proceedings plead guilty to an offence. (2) The Magistrate may accept or reject a guilty plea. … (6) If the guilty plea is accepted, the Magistrate must commit the accused person to the District Court or the Supreme Court for sentence. 1. Notwithstanding the introduction of subs (5) into s 22 of the Sentencing Procedure Act, Div 1A continues to provide an incentive by which the ambition of the Early Appropriate Guilty Pleas Scheme is to be achieved in sentencing for indictable offences. It ensures that guilty pleas (or offers to plead guilty to appropriate charges) are rewarded by the appropriate reduction in sentence, depending on the timing of the plea or offer of a plea. It ensures, by s 25E, that where what proves to be a realistic compromise offer is made by an accused person but not accepted by the prosecutor, the reward is not lost. That is an important consideration in the present determination. Relevant factual background 1. The relevant facts lie within a narrow compass. On 4 May 2018, at Port Macquarie, the applicant engaged in a fracas with his friend, Mr Jacob John King, as a result of which Mr King died. On 7 May 2018, the applicant presented himself to the Port Macquarie police station where he was arrested and charged with the murder of Mr King. 2. No charge certificate was included in the materials before this Court but there is no issue that one was filed and served in accordance with s 67(1) of the Criminal Procedure Act. On 3 April 2019, a case conference in accordance with s 74 was held, and on or about 10 April 2019 a case conference certificate was filed as required by s 74. The case conference certificate stated that the offences shown in the charge certificate were murder and, in the alternative, manslaughter. It also stated that, on 20 March 2019, the applicant offered to plead guilty to manslaughter (based on excessive self-defence), "in full satisfaction", and that the offer was rejected by the prosecution. As required by s 75(1)(e), the case conference certificate identified murder, and, in the alternative, manslaughter as "the offences that are being proceeded with". 3. In light of the prosecution's rejection of the proffered plea of guilty to manslaughter as a complete answer to the prosecution, the applicant entered a plea of not guilty to the murder count and declined to enter a plea to the manslaughter count. He was committed for trial in the Supreme Court on the count of murder, and on the count of manslaughter in the alternative. 4. The matter was listed for arraignment in the Supreme Court on 12 July 2019. An indictment containing a count of murder, and a count of manslaughter in the alternative, was presented. The applicant entered a plea of not guilty to the murder count and a plea of guilty to the manslaughter count. Again, the prosecution declined to accept the plea of guilty in discharge of the indictment. 5. A trial was fixed to commence on 1 February 2021 at Port Macquarie. The applicant sought and was granted leave to withdraw his plea of guilty to manslaughter: R v Black (No 1) [2021] NSWSC 73. 6. The following day, 2 February 2021, the applicant was arraigned in the presence of a jury panel. He entered pleas of not guilty to both counts on the indictment. A jury was empanelled. As a result of the failure of a prosecution witness to attend, the trial was adjourned to 5 February. In the interim, negotiations between the prosecution and the applicant's legal representatives took place, resulting in the applicant again offering, and this time the prosecution accepting, a plea of guilty to manslaughter in full satisfaction of the indictment. The jury was discharged and the sentencing judge proceeded to sentence. The sentencing proceedings 1. At sentencing it was contended on behalf of the applicant that he was entitled to a reduction of 25% in the sentence that otherwise would have been imposed in accordance with s 25E(2) and subs (3)(a) of the Sentencing Procedure Act. The Crown's contention, to the contrary, was that the relevant provision was s 25D(2)(b), entitling the applicant to a reduction of 10%. The sentencing judge accepted the Crown's contention and sentenced accordingly. 2. As will be seen, debate centred on par (b) of s 25E(2), which requires, if subs (2) is to apply, that the offence to which a plea of guilty was offered but not (initially) accepted by the prosecution was a "different offence" as defined – that is, was not "the offence the subject of the proceedings when the offer was made". 3. In carefully considered reasons, the sentencing judge concluded that, because manslaughter was expressly identified in a "negotiations document" (the case conference certificate) it was "the subject of the proceedings when the offer was made". He considered therefore that the applicant was entitled to a 10% reduction in accordance with s 25D(2)(b)(ii) because he had complied with pre-trial notice requirements and pleaded guilty at the first available opportunity. The application for leave to appeal against sentence 1. By his sole ground of appeal the applicant asserts that the sentencing judge erroneously categorised his case as coming within s 25D(2)(b)(ii); it is properly seen, he contends, as within s 25E(2), entitling him to a sentence reduction in accordance with s 25E(3). Whether he is correct depends upon whether he can satisfy the four cumulative criteria stated in s 25E(2), that is: (a) that he made an offer recorded in a "negotiations document" to plead guilty to "an offence"; (b) that that offence ("the different offence") was not "the offence the subject of the proceedings when the offer was made"; (c) that the offer was refused by the Crown but subsequently (after the applicant was committed for trial) accepted; and (d) that the applicant pleaded guilty at the first available opportunity. 1. It was not in issue that criteria (a), (c) and (d) were satisfied. The applicant had made an offer, recorded in a "negotiations document" (the case conference certificate) to plead guilty to "an offence" (manslaughter); the offer was initially rejected by the Crown but subsequently (after the applicant was committed for trial) accepted; and the applicant pleaded guilty to manslaughter at the first available opportunity. 2. The critical question was and is whether criterion (b) was satisfied – whether manslaughter was a "different offence" – that is "not the offence the subject of the proceeding when the offer was made". 3. As outlined above, the sentencing judge held that, because manslaughter was identified in the charge certificate and the case conference certificate as an alternative to the count of murder, it was "the subject of the proceedings when the offer was made". The applicant therefore could not satisfy criterion (b) and s 25E(2) did not apply. 4. The applicant's contention is that that reasoning is flawed and that, when criterion (b) of s 25E(2) is properly construed (with due attention to the precision of the language), manslaughter was a "different offence" – that is, it was not "the offence the subject of the proceedings when the offer was made" and all four criteria of subs (2) were satisfied. 5. In one sense, it is correct that manslaughter was, from the beginning, the subject of the proceedings. It was nominated as an alternative on the charge certificate and again in the case conference certificate. But that is not the question for determination – the question for present determination is, whether, for the purposes of s 25E(2)(b), manslaughter was "the offence the subject of the proceedings". 6. Counsel for the applicant drew support from a decision of Campbell J, subsequent to the present decision, in which a similar (if not relevantly identical) issue was raised: R v Holmes (No 7) [2021] NSWSC 570. 7. Like the applicant, Mr Holmes was charged with murder, and, in the alternative, manslaughter. At trial Mr Holmes entered a plea of not guilty to the murder count, and a plea of guilty to the manslaughter count. The Crown declined to accept the plea to manslaughter in full satisfaction of the indictment and Mr Holmes went to trial on the murder count. He was acquitted of murder and convicted of manslaughter. The relevant provision was, therefore, not s 25E(2) but s 25E(1). Entitlement to the reduction in sentence afforded by s 25E(3) depended on satisfaction of the five criteria stated in s 25E(1), that is: (a) that Mr Holmes made an offer recorded in a negotiations document to plead guilty to "an offence"; (b) that that offence ("the difference offence") was not "the offence the subject of the proceedings when the offer was made"; (c) that the offer was not accepted by the prosecutor; (d) that the offer was not subsequently withdrawn; and (e) that Mr Holmes was found guilty of the "different offence". 1. It was not in issue that criteria (a), (c) and (d) were satisfied – that is, Mr Holmes had made an offer recorded in a negotiations document to plead guilty to an offence (manslaughter), the offer was not accepted by the prosecution and was not subsequently withdrawn. As in the present case, the critical question was whether, for the purposes of criteria (b) and (e) of s 25E(1), manslaughter was "a different offence" (to repeat, that it was not "the offence the subject of the proceedings when the offer was made"). After careful consideration, Campbell J departed from the reasoning of the sentencing judge in the present case. He considered that manslaughter was a "different offence" and therefore Mr Holmes came within s 25E(1) and was entitled to a reduction in sentence provided by subs (3). Central to his Honour's reasoning was the use of the indefinite article in criterion (a) of s 25E(1) and the definite article in criteria (b) and (e). His Honour concluded: "71 Essentially, in my opinion an offence specified in a Charge Certificate only as an alternative to a more serious offence certified in that Charge Certificate is not the offence the subject of the proceedings when the offer was made[.] … 73 In arriving at this conclusion different from that of Cavanagh J, I have placed emphasis upon the use of the indefinite article in paragraph (a) of subsection (1) of s 25E to qualify 'offence' and the definite article qualifying 'offence the subject of the proceeding' in paragraph (b) (my emphasis). I accept that commonly an accused person may be required to stand trial in relation to a large number of separate offences, all included in the one indictment and which are not alternatives: ss 29 and 29A [Criminal Procedure Act]. But when that occurs each offence, although all tried together, must be proved individually, and if the accused is convicted, considered separately for sentencing purposes. That is a different situation from the situation here, where the Charge Certificate, and subsequently the Indictment, contain more than one count, but each strictly in the alternative. I make these observations to demonstrate that the singular use of 'an offence' in paragraph (a) and 'the offence' in paragraph (b) represents a deliberate drafting choice. Where an accused stands trial on two or more separate charges at the same time, the question of an available reduction for an early plea will be considered separately for each charge of which the accused is convicted. In my opinion these matters of context displace the general rule created by s 8(b) Interpretation Act 1987 (NSW) that 'a reference to a word or expression in the singular form includes a reference to the word or expression in the plural form'. 74 I am also of the view that treating matters which are strictly alternatives, either because they are included offences or statutory alternatives, as different offences for the purpose of s 25E is more consistent with the whole scheme of the legislation reading Division 1A of Part 3 of the [Sentencing Procedure Act] together with Part 2 of Chapter 3 of the [Criminal Procedure Act], particularly Divisions 4 and 5 thereof. The approach is also generally consistent with s 153 of the [Criminal Procedure Act] entitling a person to plead guilty on arraignment to an included, but uncharged offence putting the Crown on its election whether to accept the plea in discharge of the whole indictment. 75 Manslaughter is an included offence in any charge of murder. Whether specifically pleaded or not, manslaughter is always an available alternative to a charge of murder. It is to my mind unreasonable to approach 25E on the basis that, if the only charge specified in the Charge Certificate is murder, an offer to plead guilty to manslaughter prior to committal is a different offence for the purpose of s 25E, but the same offer is not where the prosecution chooses to specify manslaughter in the Charge Certificate, but strictly in the alternative only. Section 70(2) [Criminal Procedure Act] specifies that 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. Normally, where murder is charged, an offer to plead guilty to manslaughter if made is intended to operate in satisfaction of the murder charge. The purpose of the offer is not to permit the prosecution to 'pocket', as it were, the guilty plea as a backup to the principal charge lest the jury find the accused not guilty of murder, at the expense of the accused forfeiting his or her chance of an outright acquittal." 1. If Campbell J's reasoning is correct, it is equally applicable to s 25E(2). The beauty of the reasoning in [73] is that it depends purely on the language of the statute without resort to other principles of statutory construction. 2. Referring to the principle that, in the construction of one statute, regard may be had to cognate legislation (R v Edigarov [2001] NSWCCA 436; 125 A Crim R 551 at [30]) the Crown relied on s 66 of the Criminal Procedure Act. Section 66, it may be recalled, states what is to be contained in a charge certificate, including specification of "the offences [plural] that are to be the subject of the proceeding against the accused person" (emphasis added): s 66(1)(b). That, the Crown argued, confirms that more than one offence may be "the subject of the proceedings". The Crown pointed out that the form of words "the subject of the proceedings" is identical in both provisions. 3. The argument is misconceived. It is undoubtedly correct, that, in the event of ambiguity or uncertainty of the meaning of the language used in one statutory provision, assistance may be derived from reference to the same language used elsewhere in the same or in cognate legislation. (Division 1A of Part 3 of the Sentencing Procedure Act having been inserted by the same amending legislation as inserted s 66 into the Criminal Procedure Act, and as part of the same legislative reform process, it is reasonable to treat the two provisions as "cognate legislation".) However, what has to be construed is not (as the Crown would have it) the phrase "the subject of the proceedings"; it is the phrase (in s 25E(1) and (2) of the Sentencing Procedure Act) "the offence [singular] the subject of the proceedings" (emphasis added). No assistance is to be derived from s 66 of the Criminal Procedure Act, in which the critical language is "the offences [plural] the subject of the proceedings" (emphasis added). Section 66 of the Criminal Procedure Act, and Div 1A of Pt 2 of the Sentencing Procedure Act serve entirely different purposes. A charge certificate, with which s 66 is concerned, is intended to identify all charges to be prosecuted against an accused person. Division 1A is concerned with sentencing, which must be directed to offences individually (as the opening words of s 25E(1) and s 25E(2) make clear). 4. I agree with Campbell J that the use of the definite article in s 25E(1)(b) is a clear indication that the legislature contemplated that, for the purpose of that provision, only one offence – the principal offence – is "the offence the subject of the proceedings". That is equally so in respect to s 25E(2). "The offence the subject of the proceedings" was murder. It is not for the point that, for the purposes of a charge certificate, multiple offences may be "the subject of the proceedings". 5. That is consistent with the reality of how trials of alternative offences are in practice conducted. A jury will be asked to consider and determine the principal count; if that results in conviction, no verdict will be taken on the alternative count. The alternative count truly becomes "the subject of the proceedings" only if and when a verdict of not guilty is returned for the principal count. If, and when, a not guilty verdict to the principal offence is returned the alternative count will become "the offence the subject of the proceedings". Until then the alternative offence is only contingently "the subject of the proceedings". 6. This construction, as I have indicated, also gives a fair result. An offender whose offer to plead guilty to an alternative offence has been rejected by the Crown will not be denied (as would be the case on the Crown construction) the benefit of a reduction in sentence that reflects the utilitarian value of the proffered plea had the plea been accepted by the Crown. An early offer of the plea of guilty to the very charge for which the offender ultimately stands to be sentenced merits reduction as prescribed by subs (3) of s 25E (depending on the timing of the offer of the plea). 7. Attention should also be drawn to another feature of the Crown's argument. It is that manslaughter was not a "different offence" because it was expressly nominated, in the charge certificate and the case conference certificate, and included as a proposed alternative to the principal charge of murder. Inherent in that argument is the proposition, from which the Crown did not shrink, that manslaughter was an offence "the subject of the proceedings when the offer was made" because it had been so nominated. On the Crown argument, had manslaughter not been expressly nominated as an alternative, it would not have been "the subject of the proceedings", criterion (b) would be satisfied, and the conditions required to bring the applicant within s 25(2) would have been met. That would be so even if manslaughter was, consistently with common law principles and long established criminal practice, available as an alternative. A similar contention was disposed of by Campbell J in Holmes at [75]. 8. It is an unattractive argument. If accepted, it would mean that the decision of the Crown to nominate, expressly, in the charge certificate or case conference certificate, an alternative offence could deprive an offender offering a realistic plea of guilty of a substantial reduction. This, I think, is what Campbell J had in mind when he suggested, in [75] that a consequence of accepting the Crown's argument would be to allow the Crown to "pocket" a plea of guilty to a lesser charge, while persisting in the prosecution of a more serious charge. I do not accept that such a construction ought to be accepted, where an equally open but more just construction is available. 9. The discounts prescribed in s 25E(3) operate and are intended to operate as an incentive to offenders to offer realistic pleas of guilty. To deny a reduction to an offender who has offered a realistic plea of guilty to an alternative charge, merely because the alternative charge is specified in the charge certificate or case conference certificate, would be to undermine the purpose for which the reduction is prescribed. It would be at least potentially productive of unfairness. 10. There are numerous offences to which alternatives are available, whether at common law or by statute. It has not been necessary that alternatives be specified in an indictment and there is nothing in the amending legislation that requires that alternatives be specified in a charge certificate or case conference certificate. It is unlikely that the legislature intended that the entitlement of an offender to a prescribed (and mandated) reduction on sentence be dependent on whether or not the Crown chooses to specify the alternative in the charge certificate or case conference certificate. 11. At the conclusion of the argument in which the issues of construction were explored, the parties were given leave to supplement their submissions. The Crown postulated two questions: "(1) whether, where an accused pleads guilty to an alternative offence, but not guilty to the primary offence, the Magistrate may accept the guilty plea and commit the accused for sentence on the alternative offence at the same time as committing the accused for trial on the primary offence; and (2) whether the Crown should list alternative offences, whether common law (for example, murder/manslaughter), statutory (for example aggravated sexual assault/sexual assault), or other alternatives (for example break and enter and commit serious indictable offence/the serious indictable offence alleged to have been committed therein) on a charge certificate under s 66 of the Criminal Procedure Act 1986 (NSW)." 1. In support of its contention, the Crown turned to s 97 of the Criminal Procedure Act. As indicated above, by subs (2) of s 97, the Crown may accept or reject a plea of guilty. Although subs (2) is framed in language that ordinarily confers a discretion, no indication is given of the basis on which such a discretion is to be exercised. By subs (6), if the guilty plea is accepted, the magistrate must commit the accused person to the District Court or the Supreme Court for sentence. 2. In this respect the Crown's submission was that: "… it is open (and indeed mandatory) for a Magistrate to accept an accused's unconditional plea to an alternative offence of manslaughter, even where that accused pleads not guilty to the primary offence of murder. Where such pleas are entered, the Magistrate must commit an accused person for trial on the charge of murder, and for sentence in relation to the alternative charge of manslaughter." 1. Reliance was placed on the decision of Rothman J in R v Tailford (No 2) [2021] NSWSC 695 for the proposition that it is "indeed mandatory" for a magistrate to accept an unconditional plea of guilty to manslaughter. I have read the decision in Tailford (No 2). Rothman J said: "142 Where, as here and as in Holmes, there are two charges preferred and a plea of guilty is entered to one of them, the Magistrate is required, subject to acceptance of the plea by the Crown in satisfaction of the entire indictment or some valid reason to reject a plea, to commit the accused for trial on any charge to which there is plea of not guilty and commit the accused for sentence on any charge to which there has been a plea of guilty. … 144 As a consequence of the foregoing, I should recount the following circumstance. The offender pleaded guilty to manslaughter at committal, it was affirmed at each arraignment in this Court, and the trial proceeded only for murder. The plea of guilty at committal was not, and could not have been, rejected. The provisions of s 25D(2)(a) of the [Sentencing Procedure Act] apply to that offence; and it is that offence for which the offender is to be sentenced." No mention was made of s 97 of the Criminal Procedure Act. I am not persuaded that a magistrate must accept a plea of guilty to an alternative offence, even if offered unconditionally, and commit for sentence, in circumstances where the Crown proposes to proceed to trial on the principal charge. 1. The Crown's proposition was that, in the circumstances postulated (which are not the present circumstances) an accused person could be committed both for trial on the principal charge, and sentence on the alternative charge, on the same factual matrix, and that, if the trial results in conviction, the committal for sentence will, somehow, fall away, as the conviction would give rise to a successful plea of autrefois convict. 2. Given the hypothetical nature of the proposition, it is unnecessary to attempt a definitive response. It is sufficient to observe that committal for both trial and sentence on the same set of facts would be novel in criminal procedure and there is no indication in the amending legislation that the legislature intended to make that procedural change. In any event, the proposition does not bear upon the construction of s 25E(2) of the Sentencing Procedure Act which is, as I have mentioned above, concerned with offers to plead guilty to an offence different from that charged. Nothing in s 25E(1) or subs (2) suggests that an offender who does not enter a plea under s 97(1) of the Criminal Procedure Act will or should lose the benefit of the discounts prescribed by s 25E(3) of the Sentencing Procedure Act. 3. It would, in my opinion, be quite inappropriate for a magistrate, under s 97(2) of the Criminal Procedure Act to accept a guilty plea to an alternative count where the prosecution proposed to proceed to trial on the principal count. I would answer the first question postulated by the Crown (to the extent that it arises in this application) in the negative. 4. The Crown went on to submit that: "The early appropriate guilty plea legislation (as comprised by the [Criminal Procedure Act] and [the Sentencing Procedure Act]) does not recognise such conditional pleas as the basis for granting of a discount." That submission must also be rejected. Neither s 25D nor s 25E deals with pleas of guilty. Each explicitly deals with offers to plead guilty. In terms of s 25E(2)(a) the applicant made an offer to plead guilty to "an offence". The unstated but clear premise of both s 25E(1) and subs (2) is that the accused person makes an offer to plead guilty to a charge of an offence different from (and invariably lesser than) that charged, and that offer is "not accepted" (subs (1)(c)) or "refused" (subs (2)(c)) by the Crown. That can only mean "not accepted" or "refused" as sufficient to satisfy the charge preferred. Why would a prosecutor "not accept" or "refuse" an offer of a plea of guilty unless the offer was conditional upon acceptance in satisfaction of the indictment? The underlying premise of s 25E is that an offer of a plea of guilty is conditional upon the Crown's acceptance of the plea in satisfaction of the charge preferred. 1. The second question posed by the Crown does not arise in these proceedings. There are many circumstances in which offences alternative to those specifically charged by the Crown may call for consideration. As the question as framed suggests, these arise in a variety of ways, whether at common law or expressly by statute. Whether the potential alternative charges should be listed on a charge certificate and/or noted on a case conference certificate will depend on the circumstances of each case. What is clear is that the entitlement of an offender to a specific discount does not and should not depend upon the exigencies of the identification of potential alternative counts on either of those documents. 2. The applicant has established that the sentencing judge erroneously approached the discounting exercise on the basis that the applicable provision was s 25D(2)(b), entitling the applicant only to a discount of 10%; the provision correctly applicable was s 25E(2), which, by resort to s 25E(3)(a), entitled him to a discount of 25%. 3. It is necessary that this Court correct the error. The error was not one that affected the exercise of the sentencing discretion in the sense discussed in Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 and Lehn v R (2016) 93 NSWLR 205; [2016] NSWCCA 255. The error was entirely discrete from all discretionary aspects of sentencing. There was no complaint otherwise by either the Crown or the applicant of the approach taken by the sentencing judge to sentencing. In particular there was no complaint that the sentence selected, before discounting, was in any way affected by error. The error in the application of the discount to which the applicant was entitled can be addressed by a simple mathematical correction. 4. The parties agreed that, in the event that leave to appeal is granted and the appeal upheld, the applicant should be resentenced to imprisonment for 5 years 7 months and 14 days, expiring on 21 February 2024 with a non-parole period of 3 years 7 months and 10 days, which will expire on 16 February 2022. There is no reason not to accept the agreed calculation. 5. The orders I propose are: 1. Leave to appeal granted; 2. Appeal allowed, the sentence imposed in the Supreme Court quashed; 3. The applicant be resentenced to a term of imprisonment made up of a non-parole period of 3 years 7 months and 10 days commencing on 7 July 2018, and expiring on 16 February 2022, with a balance of term of 2 years 5 days, expiring on 21 February 2024. 1. IERACE J: I agree with Simpson AJA. 2. DHANJI J: I agree with Simpson AJA. ********** Amendments 15 February 2022 - Date of non-parole period expiring on 16 February 2022 with a balance of term of 2 years 5 days. 03 August 2022 - [54] expiry date changed from 17 February to 16 February 2022 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 03 August 2022