Ke v R [2021] NSWCCA 177

Ke v R [2021] NSWCCA 177

Leave to appeal against conviction was refused because the applicant entered a voluntary and informed guilty plea with no vitiating factor constituting a miscarriage of justice, and received competent legal advice; leave to appeal against sentence was granted and the appeal allowed because, despite not being recorded in the negotiations document, the applicant had made an offer to plead guilty to the final offence pre-committal, entitling her to a 25% sentencing discount under a proper construction of the Crimes (Sentencing Procedure) Act 1999 (NSW) s 25E; therefore, the sentence was quashed and re-imposed accordingly.

Jurisdiction
Australia
Judgment Date
02 August 2021
Procedural Posture
Criminal Appeal / Appeal Against Conviction and Sentence
Outcome
Leave to appeal against conviction refused; leave to appeal against sentence granted and appeal allowed.
Legal Topics
['appeals Against Conviction and Sentence' 'plea of Guilty' 'recklessly Dealing With Proceeds of Crime' 'sentencing Discounts' 'early Appropriate Guilty Plea Scheme' 'parity Principle' 'utilitarian Discount' 'competency of Counsel' 'statutory Interpretation']
['criminal Law'] ['appeals Against Conviction and Sentence' 'plea of Guilty' 'recklessly Dealing With Proceeds of Crime' 'sentencing Discounts' 'early Appropriate Guilty Plea Scheme' 'parity Principle' 'utilitarian Discount' 'competency of Counsel' 'statutory Interpretation']

Case Brief

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Procedural Posture

Criminal Appeal / Appeal Against Conviction and Sentence

Legal Issues

  1. 1 ['Whether plea of guilty was entered in circumstances amounting to a miscarriage of justice' "Whether the applicant's legal representatives were incompetent" 'Whether the indictment was bad in law for allowing recklessness as the fault element' 'Whether sentencing judge erred in assessing the objective criminality and weight of subjective factors' 'Whether the applicant was entitled to a greater sentencing discount under the Early Appropriate Guilty Plea Scheme' 'Whether there was any unjustified parity between co-offenders']

Ratio Decidendi

Leave to appeal against conviction was refused because the applicant entered a voluntary and informed guilty plea with no vitiating factor constituting a miscarriage of justice, and received competent legal advice; leave to appeal against sentence was granted and the appeal allowed because, despite not being recorded in the negotiations document, the applicant had made an offer to plead guilty to the final offence pre-committal, entitling her to a 25% sentencing discount under a proper construction of the Crimes (Sentencing Procedure) Act 1999 (NSW) s 25E; therefore, the sentence was quashed and re-imposed accordingly.

Court Disposition

Leave to appeal against conviction refused; leave to appeal against sentence granted and appeal allowed.

Orders

  • ['Refuse leave to appeal against conviction.' 'Grant leave to appeal against sentence.' 'Allow the appeal against sentence.' 'Quash the sentence imposed in the District Court.' 'In lieu thereof, sentence the applicant to imprisonment for 1 year and 10 months, commencing 24 June 2020 and expiring 23 April 2022.'...