Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Green v R [2022] NSWCCA 230 Hearing dates: 05 September 2022 Date of orders: 25 October 2022 Decision date: 25 October 2022 Before: Macfarlan JA at [1]; Harrison J at [2]; Hamill J at [3] Decision: (1) Grant leave to appeal against sentence. (2) Allow the appeal. (3) Quash the sentence imposed by the District Court on 25 May 2021 and in lieu thereof the applicant is sentenced to a non-parole period of 3 years commencing on 25 April 2020 and expiring on 24 April 2023 with a balance of term of 2 years and 8 months expiring on 24 December 2025. (4) The applicant will first become eligible for release to parole at the expiration of the non-parole period. Catchwords: CRIMINAL LAW – sentencing – application of early appropriate guilty plea provisions – prescriptive scheme for sentencing discounts – where instructions to plead guilty provided well in advance of trial – instructions communicated to prosecutor but not to court – arrangements not made for entry of plea 14 days before trial date – applicant not represented at pre-trial call-over – court notified of plea one day after 14 day cut off for larger sentencing discount – applicant's case fell between the cracks – material irregularity in sentencing proceedings – whether proceedings miscarried – whether practical injustice resulted – where prescriptive nature of provisions do not allow the appellate court to adjust level of discount – significant material tendered on the usual basis – lesser sentence warranted – applicant re-sentenced Legislation Cited: Crimes Act 1900 (NSW), s 86(3) Crimes (Sentencing Procedure) Act 1999 (NSW), ss 25, 25C, 25D, 25E, 25F, 44, Div 1A Criminal Appeal Act 1912 (NSW), s 6(3) Cases Cited: AK v R [2022] NSWCCA 175 Ali v The Queen [2005] HCA 8; (2005) 79 ALJR 662 Betts v The Queen (2016) 258 CLR 420; [2016] HCA 25 Black v R [2022] NSWCCA 17 Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 Christian v R [2021] NSWCCA 300 Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 Lehn v R (2016) 93 NSWLR 205; [2016] NSWCCA 255 Nudd v The Queen [2006] HCA 9; (2006) 162 A Crim R 301 R v Abbott (1985) 17 A Crim R 355 R v Abou-Chabake [2004] NSWCCA 356 R v Birks (1990) 19 NSWLR 677; (1990) 48 A Crim R 385 R v Diab [2005] NSWCCA 64 R v Green [2021] NSWDC 362 R v Guinness (a pseudonym) [2021] NSWDC 57 R v Lister [2021] NSWDC 132 R v Owen (a pseudonym) [2020] NSWDC 791 R v Tailford (No 2) [2021] NSWSC 695 Ratten v The Queen (1974) 131 CLR 510; [1974] HCA 35 TKWJ v The Queen (2002) 212 CLR 124; [2002] HCA 46 Tsiakis v R [2015] NSWCCA 187 Zeiser v R [2020] NSWCCA 154 Category: Principal judgment Parties: Bradley Green Rex Representation: Counsel: T Ramrakha (Applicant) A Bonnor (Respondent) Solicitors: Archbold Gittani (Applicant) Solicitor for Public Prosecutions (NSW) (Respondent) File Number(s): 2019/325410 Decision under appeal Court or tribunal: District Court of New South Wales Jurisdiction: Criminal Citation: [2021] NSWDC 362 Date of Decision: 25 May 2021 Before: Haesler SC DCJ File Number(s): 2019/325410 HEADNOTE [This headnote is not to be read as part of the judgment] On 25 May 2021, the applicant was sentenced by Haesler SC DCJ in the District Court to imprisonment for 6 years and 7 months with a non-parole period of 3 years and 4 months, after pleading guilty to an offence of detaining a person with intent to obtain financial advantage and causing actual bodily harm in the course of the detention. The applicant sought leave to appeal against his sentence, on the basis that the proceedings miscarried because his lawyers failed to enter a plea of guilty in a timely manner, resulting in him receiving a 5% statutory sentencing discount, rather than a 10% discount if the plea was entered one day earlier than when the District Court Judge was advised he would plead guilty. The Court (per Hamill J at [3]; Macfarlan JA at [1] and Harrison J at [2] agreeing) granted leave to appeal, upheld the appeal and resentenced the applicant to imprisonment of 5 years and 8 months with a non-parole period of 3 years. As to whether the proceedings miscarried: 1. The question is not whether there was neglect or incompetence by the lawyers but whether the events gave rise to a miscarriage of justice. The applicant had provided instructions to plead guilty 1½ months before the trial date. There was no satisfactory explanation for the delay in notifying the Court and the applicant was not represented at a pre-trial call-over at which the plea would surely have been notified. The failure to arrange for the timely entry of the plea constituted a material irregularity in the process and resulted in a miscarriage of justice: [37]-[44] (Hamill J); [1] (Macfarlan JA); [2] (Harrison J). Nudd v The Queen [2006] HCA 9; (2006) 162 A Crim R 301; Ali v The Queen (2005) 79 ALJR 662; [2005] HCA 8; TKWJ v The Queen (2002) 212 CLR 124; [2002] HCA 46; Tsiakis v R [2015] NSWCCA 187; AK v R [2022] NSWCCA 175, applied. As to whether the applicant should be resentenced: 1. Section 25C(2) of the Crimes Sentencing Procedure Act 1992 (NSW) allows for a 10% discount only once the plea is entered or a formal notice is provided 14 days before the trial date. The applicant both at first instance and on appeal, was only entitled to the 5% discount provided for in s 25D(2)(c). Accordingly, the Court of Criminal Appeal could not remedy the miscarriage by simply increasing the level of discount: [45]-[48] (Hamill J); [1] (Macfarlan JA); [2] (Harrison J). 2. The case was distinguishable from those where a simple mathematical or similar error could be rectified, for example, by adjusting the commencement date, increasing the level of the discount, or deleting a condition of the sentencing order. The Court was required to sentence afresh. The sentencing Judge may have taken a different approach to relevant sentencing consideration had he known of the applicant's earlier instructions to plead guilty. Further, evidence tendered "on the usual basis" was significant in the re-sentencing exercise: [49]-[61] (Hamill J); [1] (Macfarlan JA); [2] (Harrison J). Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37, applied; Lehn v R (2016) 93 NSWLR 205; [2016] NSWCCA 255; Christian v R [2021] NSWCCA 300; Ke v R [2021] NSWCCA 177, considered; Black v R [2022] NSWCCA 17, distinguished. JUDGMENT 1. MACFARLAN JA: I agree with Hamill J. 2. HARRISON J: I agree with Hamill J. 3. HAMILL J: Bradley Green seeks leave to appeal against the sentence imposed on him by Judge Haesler SC on 25 May 2021. The sentence was imposed following the applicant's plea of guilty to an offence against s 86(3) of the Crimes Act 1900 (NSW), namely detaining a person with intent to obtain financial advantage and causing actual bodily harm in the course of the detention. 4. The applicant was sentenced to imprisonment for 6 years and 7 months with a non-parole period of 3 years and 4 months. 5. The applicant raised a single ground of appeal asserting that the proceedings miscarried because his lawyers failed to act in a timely manner on his instructions to enter a plea of guilty. The result was that he received a statutory sentencing discount of 5%, rather than the 10% he would have received if the plea was entered one day earlier than when the District Court Judge was advised he would plead guilty. 6. The applicant called evidence on the appeal from the two lawyers involved in his case when it was before the District Court. Each filed an affidavit and was cross-examined by counsel for the respondent. The applicant also tendered, "on the usual basis", [1] evidence of his progress in custody and the particularly onerous conditions of incarceration he has endured since the sentence was imposed. He submitted the Court should exercise the sentencing discretion afresh and impose a lesser sentence. 7. The respondent contended that the evidence did not establish a miscarriage for three reasons. First, the applicant bore the onus of establishing a miscarriage and the evidence failed to do this. Secondly, the evidence established that the belated entry of the plea resulted from the applicant seeking to negotiate more favourable agreed facts. Thirdly, whatever be the cause of the late entry of the plea, the legislative regime currently in existence removes any discretion in the sentencing Court, either at first instance or on appeal. Accordingly, even if this Court found that the timing of the plea was not the applicant's fault, it has no discretion in resentencing to apply a more generous and appropriate discount. Therefore, the respondent submits the appeal should be dismissed. 8. I am satisfied that the sentencing proceedings miscarried. Counsel for the applicant constructed an ingenious argument, based on s 25D(2)(b)(ii) of the Crimes (Sentencing Procedure) Act 1999 (NSW) (CSPA), in support of the proposition that this Court could now apply a 10% discount to the starting point proposed by the sentencing Judge. While I am unable to accept that argument, I am persuaded that the Court should exercise the sentencing discretion afresh based on the established miscarriage and the evidence tendered on the usual basis. 9. I would grant leave to appeal and allow the appeal. I would quash the sentence imposed in the District Court and impose a sentence of 5 years and 8 months with a non-parole period of 3 years. These are my reasons for favouring those orders. Facts relevant to sentence 1. Mr Green was 24 years old at the time of the offence. He and three co-offenders, two of whom were juvenile offenders a little younger than 18, were involved in a joint criminal enterprise pursuant to which the victim was detained, assaulted and subjected to humiliating mistreatment. The motivation for this conduct was to recover money from the victim for rent owed to one of the co-offenders and suspicion on the part of the offender that the victim stole his wallet some time earlier. 2. The agreed facts were recounted by the sentencing Judge as follows: "… the agreed facts indicate that on the day of the offence he and the two young people, Owen (a pseudonym) and Guinness (a pseudonym), were with the victim in the lounge room of the house he was staying in. They all knew each other. Ms Lister was in her room. One of the young people and this offender assaulted the victim. He was kneed. He was kicked. He was punched multiple times to the head. One young person filmed the assault and a portion of it was played in court as exhibit C. The offender said to the victim: 'You're not leaving until you give Kayla (Lister) $150 and you give us the rest of your pay'. The offender accused the victim of taking his wallet and identification on a previous occasion, despite the fact the victim saying this was not true. A certain point after the assault, the men left the victim in the room, but at this stage one of the young people, Guinness, returned and took a knife and cut the victim's left cheek. A significant wound was inflicted, which later required suturing. This offender was not present at that time, but he aware of the consequences as he returned to the room soon after. The offender asserts that he gave the victim a towel, but no other aid was provided. It is admitted that over the next few hours, despite his wounds and injuries, the victim was subject to verbal abuse from the offender Owen and Guinness. The facts state, 'the offender demanded he get on all fours and call himself a dog.' Although the offender asserted to his psychologist that he had little memory of all the events because of his drug use, he in evidence today says that did not occur. However, he does concede that he called the victim a 'dog.' The agreed facts say Owen tried to get a water bowl and make the victim drink from it. It may be that the details were confused by the victim as to who said what but these things were said. I sentence on the basis that there was continuing humiliation of the victim over a period of time, despite his obvious injuries. The victim was told numerous times he could not leave and the threats against him continued. Even when the two young persons and the offender left, the threats continued and Ms Lister was prevailed upon to, in effect, ensure that he did not leave. Further threats were made via text. The victim made some attempts to obtain the money as had been demanded. However, at this stage, this offender had left the victim in the apparent custody of Ms Lister; although she took no active role to [prevent] him leaving. He did, however, leave and get assistance. His laceration received nine stitches. He also had lacerations on his lip, bumps and bruising to his face and head; which can be attributed to the assault by this offender and the other two young people." [2] 1. The agreed facts were more extensive, but his Honour's summary was not disputed on the appeal and suffices for present purposes. The facts established that the victim was in the company of two of the co-offenders from around 12:30am and the detention commenced a short time later when the applicant and the other co-offender arrived at the premises. He escaped at about 3:30pm. 2. The applicant was on bail at the time of the offence, an aggravating circumstance which Judge Haesler took into account. His Honour also considered the length of the detention, the severity of the assaults, the "continuing humiliation of the victim" and that there was "a degree of vigilantism" in the offending. [3] These considerations led his Honour to conclude that it was a serious example of an offence under s 86(3) which "requires a significant custodial sentence." [4] His Honour held the prolonged period of the offending indicated a "profound disrespect" for others. [5] 3. A victim impact statement referred to the impact on the victim, including scarring from the wound, his loss of trust in people, and his fears and insecurities. The victim said the offence "affected me massively, personally and as a person." [6] 4. The applicant was remorseful, although the sentencing Judge said he expressed his remorse "belatedly". [7] The applicant gave evidence that he found it difficult to watch the video of himself assaulting the victim and said, "the person doing that is not the person I am today." [8] The sentencing Judge took into account the applicant's "growing maturity, his change in attitude and acknowledgment of the wrongs of his actions." [9] His Honour was impressed with the applicant's efforts at rehabilitation during the 8 months he spent in custody following his arrest, his time at a residential program at Odyssey House and another day program in community prior to sentence. The likelihood that he would commit further offences was tied to his ability to be remain drug-free. [10] 5. Two sentence assessment reports and a psychological report were tendered on sentence. The applicant gave evidence confirming the history provided to the authors of those reports. [11] Judge Haesler acknowledged the applicant's history of disadvantage and that it included estrangement from those closest to him and a "family unit blighted by the drug methylamphetamine." [12] The impact of the applicant's addiction to methylamphetamine since he was a child, and its impact on his behaviour and capacity to make sound decisions, were given appropriate weight in the sentencing exercise. The sentencing Judge found the background of deprivation attracted the Bugmy principles [13] and his moral culpability for the offence was reduced as a result. [14] His Honour held that the applicant had "done everything he [could] do during his period of remand to demonstrate a progress to rehabilitation." [15] 6. The applicant was given credit for 3 months, representing about half the time he spent in quasi-custody in Odyssey House. Along with the initial 8 months on remand before he was released to bail, this resulted in a back-date of 11 months and the sentence was ordered to commence on 25 April 2020. [16] 7. His Honour found special circumstances and made a substantial adjustment to the non-parole period so that it represented around 50.6% of the total sentence. [17] 8. Judge Haesler acknowledged the tragedy involved in sentencing the applicant, in light of his efforts at rehabilitation and his evidence on sentence which his Honour found to be "[heartening]." [18] However, the facts were so serious that a substantial sentence of imprisonment was required. The co-offenders 1. Judge Haesler had sentenced each of the co-offenders and there was no "disparity" ground arising from the sentences imposed on the others. There were differences in their roles and involvement in the offence and two of the offenders, one of whom committed the most serious act of violence when the applicant was not present, were not yet adults. The sentences imposed on the other offenders were: * Kayla Lister, after a 5% discount for a late guilty plea, received a sentence of 1 year and 10 months to be served by way of an Intensive Corrections Order. See R v Lister [2021] NSWDC 132. * John Guinness (a pseudonym) was sentenced to 4 years and 1 month with a non-parole period of 2 years and 2 months, after a 25% reduction for his early guilty plea. The starting point was 5 ½ years before reducing the sentence for his plea of guilty. He was aged 17 years and 4½ months at the time and had instigated the attack on the victim. See R v Guinness (a pseudonym) [2021] NSWDC 57. * Michael Owen (also a pseudonym) was sentenced to 3 years and 9 months with a non-parole period of 2 years, after a 25% discount for his guilty plea. He was just a few weeks younger than 18 years old at the time of the offence. He inflicted the most serious injury on the victim when he slashed his face with a knife. The applicant was not present at that time. See R v Owen (a pseudonym) [2020] NSWDC 791. 1. No ground of appeal is directed to Judge Haesler's approach to "parity" – or, more correctly, the proportionality between the sentences. However, the applicant suggested that the evidence may justify a closer comparison if the Court came to resentence. [19] The legislative scheme 1. Before analysing the ground of appeal and the competing arguments it is necessary to set out the relevant statutory provisions. These are contained within Div 1A Pt 3 of the CSPA (emphasis in original): 25C Timing of pleas and notice requirements (1) In this Division-- first day of the trial of an offender means the first day fixed for the trial of the offender or, if that day is vacated, the next day fixed for the trial that is not vacated. (2) For the purposes of this Division, an offender complies with the pre-trial notice requirements if the offender serves a notice on the prosecutor at least 14 days before the first day of the trial of the offender accepting an offer by the prosecutor to plead guilty to the offence or offering to plead guilty to the offence. 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. (3) Discount variations--new count offences The discount for a guilty plea by an offender in respect of a new count offence is as follows-- (a) a reduction of 25% in any sentence that would otherwise have been imposed, if an offer to plead guilty was made by the offender and recorded in a negotiations document as soon as practicable after the ex officio indictment was filed or the indictment was amended to include the new count, (a1) a reduction of 25% in any sentence that would otherwise have been imposed, if-- (i) the offender was discharged under section 68(2)(a) of the Criminal Procedure Act 1986, and (ii) an offer to plead guilty was made by the offender and recorded in a negotiations document as soon as practicable after the ex officio indictment was filed or the indictment was amended to include the new count, (b) a reduction of 10% in any sentence that would otherwise have been imposed, if paragraph (a) or (a1) does not apply 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 to the offence 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), (a1) or (b) does not apply. (4) However, the discount in subsection (3) (a) does not apply if-- (a) the facts or evidence that establish the elements of the new count offence are substantially the same as those contained in the brief of evidence or other material served on the offender by the prosecutor in committal proceedings relating to the original indictment and the penalty for the new count offence is the same as, or less than, the offence set out in the original indictment, or (b) the offender refused an offer to plead guilty to the new count offence that was made by the prosecutor in the committal proceedings relating to the original indictment and the offer was recorded in a negotiations document. (5) Discount variations--person found fit to be tried after committal for trial The discount for a guilty plea by an offender who is found fit to be tried after the offender is committed for trial, and whose matter was not remitted to a Magistrate for continued committal proceedings, is as follows-- (a) a reduction of 25% in any sentence that would otherwise have been imposed, if the offender pleaded guilty as soon as practicable after the offender was found fit to be tried, (b) a reduction of 10% in any sentence that would otherwise have been imposed, if paragraph (a) does not apply 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. (6) Opportunities for legal help to be taken into account For the purpose of determining under subsection (3) or (5) whether the offender pleaded guilty as soon as practicable after an ex officio indictment was filed or the original indictment was amended or after a finding of fitness to be tried, the court is to take into account whether the offender had a reasonable opportunity to obtain legal advice and give instructions to his or her legal representative (if any). 1. The power of a Magistrate to "accept" a plea, and the nature and content of the jurisdiction then being exercised, is yet to be the subject of conclusive judicial consideration, although Simpson AJA discussed the issue in Black v R [2022] NSWCCA 17 at [43]-[50]. See also the observations of Rothman J in R v Tailford (No 2) [2021] NSWSC 695 at [142], [144] in relation to which Simpson AJA expressed some misgivings in Black v R at [46]. 2. It is unnecessary to set out the provisions in ss 25A, 25B, 25D(4)-(6), 25E or, subject to one matter, s 25F. 3. Section 25F(4) is relevant to one of the applicant's submissions: 25F Other provisions applying to sentencing discount … (4) Exception to application of discount--disputed facts The court may determine not to apply the sentencing discount, or to apply a reduced sentencing discount, if the court determines that the discount should not be applied or should be reduced because the utilitarian value of the plea of guilty has been eroded by a dispute as to facts that was not determined in favour of the offender. (Emphasis in original.) The impact of these provisions on the applicant's case 1. The plea of guilty in the present case was entered 10 days before the trial date. Sections 25D(2)(b) and (c) meant the applicant was entitled to a discount of 5%. He was not entitled to a discount of 10%. The solicitor for the applicant conceded this in the sentencing hearing. Judge Haesler was not informed the applicant had provided instructions to plead guilty many weeks earlier and that the ODPP was so advised. As will be demonstrated, those facts were not relevant to the level of the discount because of the prescriptive nature of the provisions. Ground of appeal: The failure by the applicant's legal representatives to act in a timely manner on instructions to plead guilty caused a miscarriage of justice as it resulted in the applicant receiving only a 5% discount on sentence. Evidence on the appeal 1. In support of his single ground of appeal, the applicant read two affidavits affirmed by the lawyers who represented him in the District Court. The first was from Elizabeth Parkes dated 1 April 2022 and the second was from Paul Paine dated 22 August 2022. The Court received the evidence on a provisional basis and counsel for the respondent cross-examined each deponent briefly on the hearing of the application. Ms Parkes was the trial advocate and Mr Paine was her instructing solicitor. Both lawyers are employed by the Legal Aid Commission and had carriage of the applicant's case. Chronology derived from the affidavits and annexed documentation 1. The following undisputed chronology emerges from the evidence: * 8 October 2019: The offence was committed. * 17 October 2019: The applicant was arrested. * 17 June 2020: The applicant was granted conditional bail. * 17 June 2020: The applicant was committed for trial to the District Court at Wollongong. A trial date of 30 November 2020 was fixed shortly thereafter. * 21 July 2020: The trial date was confirmed at a mention. * 17 September 2020: There was a conference conducted by Audio Visual Link (AVL) between the applicant and the two lawyers. Mr Green was residing at Odyssey House. A file note made by Mr Paine recorded that the applicant disputed a number of factual matters. [20] * 24 September 2020: There was a conference between Ms Parkes and the applicant by AVL. A file note indicated that the applicant instructed Ms Parkes that he intended to plead guilty. The applicant was told that formal documentation of his instructions to plead guilty would be prepared for him to sign and Ms Parkes "advised that plea of guilty will still attract a sentencing discount now according to law it will be 10% as long as the plea is entered at least 14 days before the trial." [21] The file note showed that shortly after the conference Ms Parkes notified solicitors from the Office of the Director of Public Prosecutions (ODPP) and, after disclosing various "issues in dispute that are not worth a trial": "… asked the DPP to canvass the issues with the victim to see whether the facts could change but advised that they would be consistent with a detain for financial advantage in company. [Elizabeth Parkes] very clear that this matter will resolve and should be a plea reiterated that still a sentence discount available to the client on a plea 14 days before trial would still be worth 10%." [22] * 6 October 2020: There was a pre-trial mention to confirm the trial date before the District Court. The applicant was not represented. Ms Parkes was on leave and Mr Paine had returned that day from leave. The trial date was confirmed. A Public Defender who was not involved in the case contacted Mr Paine to advise him that the matter was mentioned, and the applicant was not represented. * 29 October 2020: Mr Paine held a conference with the applicant by AVL and the applicant signed written instructions to plead guilty. A file note included the following: "Informed client, we will now contact DPP to try and resolve factual dispute and we will notify client in time of feedback from DPP." [23] The written instructions included: "[T]he law says that I should receive a discount (less of a penalty – now 10%) for pleading guilty at this stage of the proceedings, compared to the penalty I would get after being found guilty at the end of a trial." [24] * 9–17 November 2020: There were a series of emails exchanged between Mr Paine and the ODPP solicitor attempting to reach an agreement as to the facts. * 16 November 2020: This date is 14 days before the trial was listed to commence. * 17 November 2020: Mr Paine emailed the District Court registry advising that the applicant intended to plead guilty and that the prosecution was on notice of this. * 18 November 2020: The Judge's Associate replied to the parties and indicated the case was to be listed on 20 November 2020 for the plea to be entered and the trial date vacated. * 19 November 2020: The parties signed a finalised statement of agreed facts. * 20 November 2020: Mr Green formally entered a plea of guilty. 1. Four things should be observed about this chronology and the evidence upon which it is based: * First, in both the file note of the conference on 24 September 2020 and the written instructions dated 29 October 2020, it is apparent Mr Green understood he would receive a 10% discount. * Second, none of the records suggested his instructions were contingent on the facts being negotiated, even though some factual issues remained in dispute. * Third, there was no explanation for the delay between 24 September and 29 October 2020, including after the 6 October 2020 mention where the applicant was not represented and the Public Defender advised Mr Paine what had happened in his absence. * Fourth, it is not clear whether the ODPP was represented at the 6 October 2020 mention, but it seems likely that it was. Either way, the trial date was confirmed, and the Court was not told the applicant intended to plead guilty. 1. I turn to consider the more significant aspects of the evidence given on the hearing of the appeal. Ms Parkes oral evidence 1. Ms Parkes gave short additional evidence in chief, including: "Q. As at 24 September 2020, what was your understanding about whether or not he was going to trial? A. He didn't want to go to trial. He wanted to enter a plea of guilty, however, there were some significant factual issues that needed resolution with the Crown. Q. Was your understanding that he was still going to plead guilty, notwithstanding the resolution of those issues? A. Yes. HARRISON J: When you say, 'Notwithstanding the resolution,' do you mean despite— RAMRAHKA Q. Despite the resolution of those issues-- A. That's - yes." [25] 1. Ms Parkes was cross examined on paragraph [11] of her affidavit, which read "I am aware that on 29 October 2020, Mr Paine had a conference with Mr Green at Odyssey House, whereby Mr Green signed written instructions to plead guilty. I understand the instructions to plead guilty were not contingent on the facts being agreed": "Q. Accepting that, when Mr Green signed instructions that, 'By pleading guilty, I agree the agreed facts sheet will be read is an accurate description of what happened,' would you agree that the facts had to be agreed before a plea was entered? A. That was, that was the stumbling block to the plea, was the facts and that was the difficulties we were having with the DPP about the facts, but we always had, we had those instructions to plead and we had instructions to plead to the offence. These issues were important to Mr Green but not necessarily going to the heart of what he was pleading guilty to. Q. Did Mr Green ever instruct you to enter a plea, even if the facts weren't agreed? A. I understand that he had to accept the facts that he didn't agree with, so, yes. He wasn't going to not plead guilty. Q. But did he instruct you to enter a plea even if facts weren't agreed? A. I, I can't recall specifically, but certainly he understood we mightn't win the issue in terms of the disputes in relation to the facts and that we would proceed to sentence. Q. Given that you weren't there on 29 October, are you able to say whether or not in fact Mr Green's instructions were contingent on agreeing facts first before a plea was entered? MACFARLAN JA: Just a moment, I think you should clarify that. Are you asking about a communication with Ms Parkes? If you're asking her to speculate about what Mr Green may or may not have said to someone else, then I'd reject the question. BONNOR: Yes. Q. Where you have in paragraph 11 of your affidavit, 'An understanding that the instructions to plead guilty were not contingent on the facts being agreed,' do you see that there? A. Sorry? Yes, I see that. I beg your pardon. Q. Is it possible that your understanding is wrong? A. No, I, I don't think so. The issue in relation to what Mr Green wanted to dispute was my understanding that this was a - we wouldn't get necessarily a resolution that was positive for him for those facts. The plea, as I understood it, was separate from - they were a subsidiary issue to the plea, which was a plea to the elements of the specially aggravated, take and detain." [26] Mr Paine's oral evidence 1. In cross-examination, Mr Paine was taken to Annexure B of his Affidavit, and a file note which included, "we will now contact DPP to try and resolve factual dispute and we will notify client in time of feedback from DPP". He gave the following answers regarding that note: "Q. What were you referring to when you said, 'We will notify client in time'? A. I was referring to the resolution of the factual dispute that he wanted us to try and resolve, and so we were going to get back to him and let him know the outcome. Q. What were you referring to in the context of time though? You said, 'In time.' In time for what? A. In time. When, when I, when I wrote there, 'In time,' it was just a, it was just a reference to, at some point in the future. It wasn't in relation to any particular timeframe." 1. Mr Paine was then taken to the written instructions to plead guilty, and asked about the fourth bullet point which said: "[B]y pleading guilty I agree that the agreed facts sheet that will be read by the Court when determining my penalties is an accurate description of what happened, and that my solicitor cannot say anything in Court that contradicts anything in the facts sheet". [27] 1. He gave the following evidence about that part of the document: "Q. Do I take it from that there had been some negotiations but there were some issues outstanding, is that right? A. The negotiations were continuing, correct, yes. Q. The agreement in bullet point 4, is that in anticipation of facts being ultimately agreed? A. I, I think that can be inferred, yes. Q. Did Mr Green instruct you ever to enter a plea of guilty while the facts remained unresolved? A. No. Q. Was it your understanding the effect of bullet point 4 that your instructions to plead guilty were subject to Mr Green agreeing facts that he was satisfied were an accurate description of what happened? A. No. I, I can expand if you'd like me to. Q. If you could, please? A. Your prior question asked me whether he'd instructed me and I said, 'No,' because as I understood it from the file, he'd instructed Ms Parkes about a change of plea and therefore when I'm discussing these matters to be resolved with him, my role was to then go to the DPP or the Crown and try to resolve these outstanding factual issues. Q. Was there a reason therefore that a plea of guilty wasn't entered before the facts were agreed? A. When you say, 'A plea of guilty entered,' I take it you mean a plea of guilty entered in the face of the Court? Q. Yes, to clarify, the entry of a plea before a Court? A. I suppose there's a number of - well, there's a couple of reasons. From the file note that Ms Parkes made, it was - when I read that, it was clear that her discussions with the DPP meant that there was going to be a plea of guilty but there were still factual issues to be resolved. When I conferenced Mr Green on 29 October, again, it was clear that he still wanted those issues resolved but the Court wasn't notified because I was also aware of the impact on the discount if the factual issues couldn't be resolved. So, I was working towards resolving those before the Court was formally notified. Q. In the answer you just gave - and please correct me if I misheard you - I think you said the Court was not notified earlier, is that right? But you were aware of the impact on the discount? A. Yes. HAMILL J Q. Sorry, I may have misunderstood you, but when you spoke about, in I think your third last answer, the impact on the discount, you were speaking in the context of the factual dispute. Now, are you talking about the discount that flows from the timing of the plea or the impact on the discount of having a factual dispute and losing it? A. The latter. Q. That's what I understood. A. I'm specifically thinking about 25F(4) the erosion of the discount, where there's a factual dispute and it's not resulted in the favour of the defendant. Q. But at the same time, the time is ticking on the 14 days till the trial date? A. Correct." [28] 1. Mr Paine was cross-examined further on this issue: "Q. Going back to a question I asked you earlier, you were aware of the potential impact on the discount if a plea was not entered within 14 days before the date of the trial? A. Yes. Q. Was there a reason that the Court was not notified earlier? A. There's probably a couple of responses I can give to that. The first response goes back to what I was saying about what I'd read in the file note from Ms Parkes to the Crown and that is that they were effectively put on notice that the plea was going to be changed and that was - sorry, I don't have it in my affidavit. It would be in Ms Parkes' affidavit. HAMILL J Q. It's 24 September. A. Correct. I think she made the file note on 25 September. Q. That's correct. A. Yep. So, my understanding was, they knew that there was going to be a change and then you're asking me why the Court wasn't put on notice, well, I was also - secondly, I was never specifically told to give notice to the Crown and - but I was told that from client, Mr Green, that there were factual issues that needed to be resolved and I was also aware, like I say, 25F(4) which erodes the impact of any reduction of sentencing discount if the factual issues aren't resolve and don't go in his favour. So, I wanted to resolve those before I finally notified the Court. HARRISON J Q. But he would've been in the same position, would he not, if he'd failed to notify as if he'd notified and the facts were not found in his favour? A. Sorry, could you say that again, your Honour, please? Q. You were caught between, I assume, giving notice beyond 14 days of his intention to plead when the facts were not in dispute and giving that notice but reserving to yourself the possibility of arguing facts with the prospect that any dispute about them may not be found in your favour? A. That's right, yes. BONNOR Q. Does it follow from the answer that you just gave that the negotiations on facts were - and it may be obvious - does it follow that you were endeavouring to negotiate facts that may work in Mr Green's favour in assessment of his culpability on sentence? A. Clearly, yes and, and in line with his instructions. Q. You ultimately did achieve agreed facts except for one matter which was the subject of evidence in the sentence hearing, is that right? A. There, there was a final agreement of facts, yes. The, the other part of your question just-- Q. Am I right that there remained one fact which was the subject of evidence at sentence? A. I don't have a recollection of that." [29] The nature of the inquiry and submissions of the parties 1. There was no suggestion either of the lawyers did other than provide honest and reliable evidence. No evidence was adduced of the caseloads of Ms Parkes or Mr Paine but it can safely be assumed, as Legal Aid lawyers at a busy court like Wollongong, each was operating under a burden of relentless workloads and time pressures. 2. The question is not whether there was neglect or incompetence but whether, viewed objectively, the events that unfolded gave rise to a miscarriage of justice. [30] The inquiry is an objective one, focused "ultimately, [on] what did or did not occur" in relation to the entering of the plea and whether a miscarriage resulted. [31] The evidence of the lawyers is relevant to inform that question of whether there was a miscarriage of justice. It is not an inquiry into whether there was professional neglect. As Gaudron J put it in TKWJ v The Queen (2002) 212 CLR 124 at [31]: "As in the case where there is a defect or irregularity in the trial, the reason why something occurred or did not occur is relevant to the question whether, in the circumstances, there was a miscarriage of justice. But the relevant question that must ultimately be answered, is whether the act or omission resulted in a miscarriage of justice, not whether, if it is referable to the course taken by defence counsel, it was the result of 'flagrant incompetence', 'egregious error' or the like." 1. Her Honour was alluding to earlier cases where such language was employed and where the focus of the inquiry was on the degree of the lawyers' neglect or incompetence. [32] Similarly McHugh J said in TKWJ v The Queen at [79]: "The critical issue in an appeal like the present is not whether counsel erred in some way but whether a miscarriage of justice has occurred." 1. One relevant question is whether there is a "reasonable explanation" for the course taken by the lawyers that may mean that there was no miscarriage. [33] As Beech-Jones CJ at CL said in AK v R [2022] NSWCCA 175, "if there could be such an explanation, then no error or defect in the trial occasioning any miscarriage of justice will have occurred." [34] The language used by Gaudron J in TKWJ v The Queen was somewhat more flexible (at [28]): "As already indicated, if there is a defect or irregularity in the trial, the fact that counsel's conduct is explicable on the basis that it resulted or could have resulted in a forensic advantage is not necessarily determinative of the question whether there has been a miscarriage of justice. It may be that, in the circumstances, the forensic advantage is slight in comparison with the importance to be attached to the defect or irregularity in question. If so, the fact that counsel's conduct is explicable on the basis of forensic advantage will not preclude a court from holding that, nevertheless, there was a miscarriage of justice." 1. The applicant argued that in circumstances where the instructions to plead guilty were provided around 1½ months before the trial date and formalised with signed instructions 19 days before the trial date, the failure to arrange for timely entry of the plea caused the proceedings to miscarry in the sense that Mr Green lost the benefit of the sentencing discount to which he ought to have been entitled. 2. The respondent submitted that there was a reasonable explanation for the delay because the applicant's lawyers delayed entry of the plea to "gain a negotiating advantage as to facts" on sentence. [35] The respondent relied on the evidence of Mr Paine in cross-examination [36] to demonstrate that his conduct was at least partly motivated by s 25F(4) of the CSPA which provides that the sentencing discount "may" be reduced if "the utilitarian value of the plea of guilty has been eroded by a dispute as to the facts that was not determined in favour of the offender". The respondent submitted there was no relevant unfairness or miscarriage because a deliberate tactical decision was made not to enter the plea while negotiations as to the facts continued: cf. in a different context, R v Diab [2005] NSWCCA 64 at [19], citing R v Abou-Chabake [2004] NSWCCA 356 and Ratten v The Queen (1974) 131 CLR 510 at 517; [1974] HCA 35. 3. Counsel for the applicant responded to that argument in his oral submissions: "That doesn't rationally make much sense in the sense of, if notice had been given to the DPP well in advance of 14 days, then my submission is that, the starting point of a discount of 10% would've been locked in. If there was to be a factual dispute, it would appear that the factual dispute was confined to really only five areas. Five areas which weren't so critical in terms of the offence. If those matters were determined in the applicant's favour, then he would've obviously gotten the 10%. If they weren't determined, s 25F(4) still preserved or still reposed in the sentencing judge a discretion. The provision states that the discount may be reduced in light of the resolution to the factual dispute. … The question I guess is, if the omission is accepted, as I understand it, the authorities say, is there a rational explanation for it? In my submission, there really is no rational explanation because as the clock was ticking, he was losing his discount and he was actually in a worse position because as I'd said earlier, if he'd locked in his discount and then gone to sentence to dispute those five facts, he still would've had the back up of that 10% available, obviously if he'd succeeded in agitating those in his favour." [37] Conclusion: was there an irregularity in the sentencing proceedings such that those proceedings miscarried? 1. I have concluded that the failure to arrange for the entry of the plea on or before 16 November 2020 constituted a material irregularity in the process. My reasons can be summarised as follows: 1. I accept Ms Parkes' evidence that the instructions to plead guilty taken on 24 September 2020 were not contingent on agreement as to the facts to be tendered on sentence. 2. Ms Parkes notified the ODPP that day that the case would not proceed to trial and any factual dispute did not involve the elements of the offence to which the applicant pleaded guilty. 3. There is no satisfactory explanation for the delay in notifying the Court that the case would resolve by way of a guilty plea. That would surely have been done at the pre-trial mention on 6 October 2020 if the applicant was represented. 4. Both the file note of 24 September 2020 and the written instructions of 29 October 2020 refer to the applicant obtaining a 10% sentencing discount. 5. Neither of those documents suggest that the applicant was advised the 10% discount may be jeopardised if there was an unsuccessful attempt to challenge the facts, or that he gave instructions he would not plead guilty unless or until the facts were settled. 6. Relatedly, and accepting Mr Paine's evidence that he was (as the lawyer with carriage of the matter) conscious of s 25F(4), there is nothing to suggest the impact of that provision was explained to the applicant. 7. The residual factual disputes were of a relatively minor nature, and it is far from certain that Mr Green would have lost any part of the discount had the matter been litigated. It is the type of situation contemplated by Gaudron J at [28] in TKWJ v The Queen; the "forensic advantage [was] slight" when compared with the loss of the sentencing discount. 8. The fact that the applicant was not represented at the pre-trial mention on 6 October 2020, and the failure of the parties to advise the presiding Judge the applicant had provided instructions to enter a guilty plea, suggests the case had somehow fallen between the cracks. 9. The precise timing of notifying the District Court of the plea, that is one day after the last day upon which the applicant would obtain the 10% sentencing discount, also suggests an unintended failure to meet a deadline, rather than a forensic strategy. 10. I am unable to accept the respondent's submission that the instructions to plead guilty were always contingent upon the settling of facts suitable to the applicant. [38] Ms Parkes' evidence is directly to the contrary, the contemporaneous records suggest the opposite, and there is no evidence that the applicant was made aware of the possible impact of s 25F(4). Resentencing and practical injustice 1. Accepting there was an irregularity, a further issue upon which the parties disagreed was whether the irregularity in this case gave rise to any "practical injustice" or was one capable of affecting the result: cf AK v R at [5] (Beech-Jones CJ at CL). The question arose because of the rigid nature of the sentencing regime created by Div 1A of the CSPA. The respondent submitted that, even if it is accepted that the proceedings miscarried because the plea ought to have been entered earlier, no different discount could be awarded because the relevant provision only allows for the 10% discount where the plea is actually entered (or formal notice is provided). Because the sentence is not otherwise subject to challenge, it was submitted that there was no occasion to revisit the question of sentencing afresh. Reliance was placed on AK v R and various cases where this Court has held that a discrete mathematical error could be corrected without sentencing afresh in the sense described in Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 at [42]. 2. Counsel for the applicant attempted to rely on the judgments of Brereton JA and Bellew J in Ke v R [2021] NSWCCA 177. In that case, the applicant made an offer to plead guilty to a different offence (a new count offence) in the course of a case conference in the Local Court. Contrary to the provisions of Div 1A, the offer was not recorded in the "negotiations document" or "case conference certificate". [39] Accordingly, under s 25E(3), the applicant was denied a 25% discount because, while the offer to plead guilty to the different offence was made and rejected, it was not "recorded in a negotiations document". [40] Brereton JA held at [63] the provision "should be construed as capturing an offer which was recorded, or ought to have been recorded, in a negotiations document" (emphasis in original). Similarly, Bellew J held at [338] that the result "could not possibly have been the Parliament's intention, in enacting s 25E". At [339], his Honour said s 25E(2) should be construed as meaning "an offer which was recorded or which was required to be recorded in a negotiations document" (emphasis in original). His Honour gave his reasons for that conclusion in the paragraphs that followed (that is, [340]-[343]). 3. Counsel for the applicant invited the Court to hold that a similar approach could be taken to s 25C(2) which describes that an offender "complies with the pre-trial notice requirements" if they "serve a notice on the prosecutor at least 14 days before the trial" (emphasis in original). It was suggested, by analogy to the judgments in Ke v R, that this provision should be read to include a situation where such a notice ought to have been or was required to be served. While the ingenuity of this submission is appreciated, it cannot be accepted. Unlike the case conferencing provisions, the legislation does not provide for, or imply, that there is any obligation or requirement to record or notify a plea offer; the sentencing discount turns on the actual timing of the plea or the actual compliance with the pre-trial notice requirements. 4. The result is that the applicant, both at first instance and on appeal, is only entitled to the legislative discount provided for in s 25D(2)(c); that is a reduction of 5%. 5. I turn to consider the respondent's submission that the result is that there is no "practical injustice" and the Court should not exercise the sentencing discretion afresh in accordance with the High Court's judgment in Kentwell v The Queen. The merit of this submission turns to a degree on an understanding of cases such as Lehn v R (2016) 93 NSWLR 205; [2016] NSWCCA 255. 6. In Lehn v R, it was held that the Court should focus on the nature of the error or irregularity to determine whether it vitiated the entire sentencing discretion or only a discrete component of the sentence, which could be corrected or adjusted. A five-judge bench was convened to consider how an erroneously applied plea discount, which arose from a denial of procedural fairness at first instance, should be remedied. 7. Following Kentwell v The Queen, the Court in Lehn v R held that where the sentencing discretion miscarried in respect of a discrete component of the sentencing process, just as where it has miscarried more generally, it is the duty of the Court to sentence afresh. [41] The Court approached its task by reference to s 6(3) of the Criminal Appeal Act 1912 (NSW): "67 Whether or not it is necessary to re-exercise the sentencing discretion generally, as distinct from the discrete component of the sentence affected by the error, depends ultimately on the construction of s 6(3) of the Criminal Appeal Act. The subsection is predicated on error of the nature of that described in House v The King (1936) 55 CLR 499; [1936] HCA 40 at 504-505. The subsection is in the following terms: '6 Determination of appeals in ordinary cases … (3) On an appeal under section 5(1) against a sentence, the court, if it is of opinion that some other sentence, whether more or less severe is warranted in law and should have been passed, shall quash the sentence and pass such other sentence in substitution therefor, and in any other case shall dismiss the appeal.' 68 As was stated in Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27; [2009] HCA 41, the task of statutory construction must begin with a consideration of the text itself, although the meaning of the text may require consideration of the context which includes the general purposes and policy of the provision: at [47]; see also Commissioner of Taxation of the Commonwealth of Australia v Consolidated Media Holdings Ltd (2012) 250 CLR 503; [2012] HCA 55 at [39]. The text of the section under consideration in this case, where it applies, requires a court to form an opinion as to whether some other sentence, whether more or less severe, is warranted in law. The section, as a matter of language, does not provide that if a discrete error is found, the sentence can be adjusted to take account of that error. It seems to me that if there is an error which affects the exercise of the sentencing discretion, the section requires the court to form its own view of the appropriate sentence, although, as pointed out in Kentwell at [43], not necessarily to resentence. 69 That seems to me consistent with what is evidently the purpose of the section, namely to ensure that a person whose sentence is affected by error is sentenced according to law. 70 Further, there are difficulties with the alternative approach. The instinctive synthesis approach to sentencing is now well-established. As explained by McHugh J in Markarian, it involves identifying all factors relevant to the sentencing discretion, discussing their significance and making a value judgment as to what is the appropriate sentence: at [51]. A separate adjustment of a particular component of a sentence infected by error does not seem consistent with this approach." [42] 1. However, the Court agreed that Kentwell v The Queen at [42] authorised the correction of certain errors without sentencing afresh. Bathurst CJ in Lehn v R gave some examples at [72]: "That is not to say that there will not be occasions when, notwithstanding error, it is not necessary to re-exercise the sentencing discretion. It will not be necessary where, for example, an arithmetical error occurred in the calculation of the commencement and end date of the sentence or the date of the expiration of a non-parole period arrived at in the proper exercise of discretion or, for example, an error in the calculation of the effect of a discount for a plea or assistance to the authorities, where the extent of the discount to be allowed was reached in accordance with proper principles." 1. In Ke v R, Brereton JA explained the alternatives at [70]: "The distinction appears to be that where the error involves a miscarriage of the sentencing discretion in any respect, this Court must re-exercise the discretion anew; but where the error is merely one of calculation, in the nature of a slip, which could not have affected the sentence in any other way, it can merely correct the slip." 1. More recently, Beech-Jones CJ at CL observed in Christian v R [2021] NSWCCA 300 at [35]: "The Crown contended that the effect of Lehn and the decisions of this Court that have followed it is that it is only arithmetic or calculation errors that will not engage 'full Kentwell resentencing' and that for all other errors it is required 'even where the error only relates to a discrete component of the sentencing process'. This overstates the position. In Lehn at [72], Bathurst CJ referred to arithmetical errors as 'an example' of the type of error that need not result in a 'full Kentwell resentencing'. Later in Lehn (at [84]), his Honour distinguished this Court's earlier decision in Daniels v R [2016] NSWCCA 35 which found that an error in imposing a condition on the offender's release on parole did not require a 'full Kentwell resentencing' on the basis 'that the invalid condition [in Daniels] was something entirely discrete from the sentencing process or the exercise of the sentencing discretion'. Recently this Court held that an error in the fixing of a commencement date for a sentence two weeks earlier than it should have did not engage a 'full Kentwell resentencing' (Almaoiue v R [2021] NSWCCA 274 at [25]). This was more than an arithmetic error. It was instead a mistake by the sentencing judge as to when the applicant in that case was taken into custody. For my part I consider that there is a difference between an error in the sentence imposed at first instance, be it arithmetical or otherwise, which can be addressed by giving effect to the sentencing judge's clear intention when imposing the sentence and an error that can only be addressed by the appellate court making its own assessment as to how the relevant error can be addressed and the sentencing exercise completed." 1. In the circumstances of the present case, it is impossible to approach the case on the basis of giving effect to the "judge's clear intention when imposing the sentence". [43] This is because the irregularity involved the sentencing Judge not knowing the applicant had provided instructions to plead guilty, and that the ODPP was on notice of that fact, many weeks before the Court was told of the development. It may involve an irregularity that can only be addressed by this Court making its own assessment of how to address the miscarriage and ensure the offender is sentenced according to law. [44] 2. Since the decision in Kentwell v The Queen, there are a number of authorities which discuss errors which vitiate the sentencing discretion generally and require resentencing and those which may be remedied by a mathematical or temporal adjustment: see, for example, Zeiser v R [2020] NSWCCA 154, Ke v R and Black v R. While these cases assist on a general level, none deal with the question in issue in this appeal. The respondent acknowledged in its written submissions that this Court has not been called upon to determine a sentence appeal in circumstances where an applicant's legal representatives failed to act in a timely manner to act on instructions to enter a plea of guilty. [45] 3. This case is to be distinguished from cases where the mathematical error has been corrected without re-exercising the sentencing discretion. In this case, the error or miscarriage or irregularity is of a different nature and a mathematical or temporal adjustment is not an available remedy. I am also not satisfied the discount can neatly be separated from other sentencing purposes (to adopt some of the language employed in Lehn). While Judge Haesler would still have been bound by the legislative provisions to apply a 5% discount, his Honour may have given greater weight to particular aspects of punishment (such as rehabilitation) or considered the applicant's earlier willingness to facilitate the course of justice and may have taken a different approach to the structure of the sentence. This accords with the approach taken by Bellew J in the case of Ke v R and is not contrary to the alternate approach favoured by Brereton JA in that same case at [70]-[73]. Brereton JA considered the mere adjustment approach "open, but not mandatory". [46] The situation is different to that dealt with by the Court in Black v R where Simpson AJA said at [53] that the sentencing discount is "entirely discrete". In that case, the Court held that the sentencing Judge erred in his construction of the provision and was able to rectify the error by applying the discount that ought to have been applied at first instance. 4. In the applicant's case, the sentencing discretion should be exercised afresh. In undertaking that exercise, the applicant's affidavit read on the usual basis is of considerable significance. Affidavit of the applicant on resentence 1. The applicant's affidavit established that the applicant has been particularly impacted by measures implemented to control outbreaks of Covid-19. While that was to some extent predictable, and may have been considered by Judge Haesler, his Honour did not refer to the matter in his sentencing judgment. The applicant's experience has been particularly onerous. He has been subject to frequent lockdowns and periods of quarantine as he was moved between prisons. The conditions during these lockdowns include confinement to his cell for 24 hours a day, apart from 15 minutes once every 2 days to take a shower (and in some cases not even that). During these periods, he has had no visits or other contact with family members. [47] By his own estimation and record keeping, the periods of isolation add up to at least 2 months, and likely more, of his time in custody. 2. The affidavit also establishes the applicant's progress toward rehabilitation since sentence. The applicant has been in stable employment throughout his time in custody and found work which he finds enjoyable. He is enthusiastic about the experience he has gained in his current construction role, which he hopes to use in a building apprenticeship on his release from custody. [48] 3. The affidavit also outlines his other achievements in gaol. He has obtained a "Dogman" certificate (permitting him to direct crane operators on construction sites) and completed certificates in "Work Safely at Heights" and "Crane Course" through TAFE NSW. He was due to commence asbestos removal and white card courses in late August 2022. He is unable to engage in addiction programmes until 6 months prior to his release but expresses an eagerness to engage in them. [49] Resentencing 1. I have generally approached the resentencing process on the basis of the unchallenged findings of Judge Haesler. The new material satisfies me that there should be a closer proportion between his sentence and that imposed on the two male co-offenders. In applying the principles of parity and proportionality with the male co-offenders, I bear in mind that they were sentenced as juveniles and subject to a more benign sentencing regime. On the other hand, their actions during the period of offending were more serious and the most significant injury to the victim was inflicted in the applicant's absence. His Honour made more favourable findings concerning the applicant's remorse. [50] 2. I have kept the maximum penalty (25 years) steadily in mind as well as the humiliating and brutal treatment of the victim. I accept Judge Haesler's description of the offence but also his Honour's favourable findings as to the applicant's remorse, insight, and prospects of rehabilitation. I also take into account the breach of conditional liberty. I agree the sentence should be backdated by 11 months taking into account the time actually spent in custody on remand and giving some credit for the period of quasi-custody while at the Odyssey House rehabilitation program. The sentence will commence on 25 April 2020. 3. I would commence with a starting point for the head sentence of 6 years. Allowing the statutory sentencing discount of 5% for the plea of guilty (a reduction of 3.6 months) and rounding (to 4 months) in the applicant's favour, I would impose a sentence of imprisonment of 5 years and 8 months. 4. Like Judge Haesler I find there are special circumstances pursuant to s 44(2) of the CSPA, based on the applicant's youth, his efforts towards drug rehabilitation and his need for an extended period of supervision to continue those efforts on his release back into the community. By then he will have served a lengthy period of incarceration in onerous conditions. While the adjustment to the non-parole period is substantial, I have kept in mind that the minimum period of imprisonment must remain proportionate to the gravity of the offending. The adjustment I propose is similar, although not mathematically precisely the same, as that settled on by Judge Haesler. I propose a non-parole period of 3 years. 5. The sentence would be 5 years and 8 months with a non-parole period of 3 years. Orders 1. I would make the following orders: 1. Grant leave to appeal against the sentence. 2. Allow the appeal. 3. Quash the sentence imposed by the District Court on 25 May 2021 and in lieu thereof the applicant is sentenced to a non-parole period of 3 years commencing on 25 April 2020 and expiring on 24 April 2023 with a balance of term of 2 years and 8 months expiring on 24 December 2025. 4. The applicant will first become eligible for release to parole at the expiration of the non-parole period. ********** Endnotes 1. Betts v The Queen (2016) 258 CLR 420; [2016] HCA 25 at [4], [46], [52]. 2. R v Green [2021] NSWDC 362 at [8]-[13] (ROS). 3. ROS at [12], [15]. 4. Ibid at [15]. 5. Ibid at [17]. 6. Ibid at [16]. 7. Ibid at [17]. 8. Ibid at [5]. 9. Ibid at [6]. 10. Ibid at [17]. 11. Ibid at [18]. 12. Ibid at [23]. 13. Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 at [41]-[43]. 14. ROS at [34]. 15. Ibid at [35]. 16. Ibid at [33], [39]. 17. CSPA, s 44(1) and ROS at [39]. 18. ROS at [4]-[6]. 19. Applicant's Written Submissions at [82]. 20. Affidavit, Paul Paine, 22 August 2022 at par 5. 21. Affidavit, Elizabeth Parkes, 1 April 2022, Annexure A. 22. Ibid. 23. Ibid, Annexure B. 24. Ibid, Annexure C. 25. Appeal tcpt, 5 September 2022, pp 5-6. 26. Ibid, pp 15-16. 27. Affidavit, Elizabeth Parkes, 1 April 2022, Annexure C. 28. Appeal tcpt, 5 September 2022, pp 22-23. 29. Ibid, pp 24-26. 30. Nudd v The Queen [2006] HCA 9; (2006) 162 A Crim R 301 at [2], Ali v The Queen (2005) 79 ALJR 662 [12]-[13], [18], [25], [99]; [2005] HCA 8 and TKWJ v The Queen (2002) 212 CLR 124; [2002] HCA 46 at [26]-[27]. 31. Tsiakis v R [2015] NSWCCA 187 at [42], AK v R [2022] NSWCCA 175 at [9] and Nudd v The Queen [2006] HCA 9; (2006) 162 A Crim R 301 at [74]. 32. See, for example R v Birks (1990) 19 NSWLR 677 at 685; (1990) 48 A Crim R 385 and R v Abbott (1985) 17 A Crim R 355 at 356. 33. TKWJ v The Queen [2002] HCA 46; 212 CLR 124 at [10], [32]. 34. AK v R [2022] NSWCCA 175 at [7]. 35. Respondent Written Submissions (RWS) at [52]. 36. Appeal tcpt, 5 September 2022, pp 23(36)-25(23). 37. Ibid, pp 26-27. 38. Ibid, p 34. 39. Ke v R [2021] NSWCCA 177 at [337] (Brereton JA). 40. Ibid at [63]-[64] (Brereton JA). 41. Lehn v R [2016] NSWCCA 255 at [67]-[87] (Bathurst CJ). 42. Lehn v R [2016] NSWCCA 255 at [67]-[70] (Bathurst CJ). 43. Christian v R [2021] NSWCCA 300 at [35] (Beech-Jones CJ at CL) ("Christian v R"). 44. Compare ibid. 45. RWS at [42]. 46. Ke v R [2021] NSWCCA 177 at [73]. 47. Affidavit, Bradley Green, 23 August 2022, at [11], [17], [22]. 48. Ibid at [18], [19]. 49. Ibid at [20], [21], [23]-[26]. 50. ROS at [17]-[18]; R v Guinness (a pseudonym) [2021] NSWDC 57 at [23]; R v Owen (a pseudonym) [2020] NSWDC 791 at [22]. 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: 25 October 2022