Rokovada v R [2025] NSWCCA 64

Rokovada v R [2025] NSWCCA 64 · Read the judgment on AustLII

Catchwords: Sentencing – Discounts for plea of guilty – Offers made at committal – ineligibility for discount where plea was available to be entered but not actually entered in court

In this important decision, the Court of Criminal Appeal (‘CCA’) has held that a mere offer to plead guilty at committal may not secure a 25% discount if accepted later by the Crown, where the plea could have been entered to existing charges but wasn't formally made in court.

The applicant was charged with sex offences. During the committal phase he made a counter-offer to plead guilty to one count of sexual intercourse without consent on a specified factual basis. This counter-offer was rejected by the Crown when the matter was in the Local Court but later accepted at a ‘Super Call-over’ on a basis that was materially identical to the applicant’s counter-offer.

The sentencing judge queried whether this state of affairs should not entitle the offender to the full 25% discount which is available under the so-called ‘Early Appropriate Guilty Plea’ regime. The parties confirmed that the judge was only entitled to reduce the sentence by 10% on account of the plea of guilty. The applicant was sentenced to imprisonment for 2 years and 6 months, with a non-parole period of 1 year and 3 months. The applicant appealed his sentence on the sole ground that the sentencing judge erred in applying only a 10% discount.

The statutory entitlement to a discount is to be found in Crimes (Sentencing Procedure) Act 1999 (NSW) s 25D. Leaving aside cases where there is a wholly new indictment, or a new count on the indictment which is based on new evidence, the availability of a 25% discount is to be found in s 25D(2)(a), which provides for ‘…  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’ [emphasis added]. The problem, in the present case, was that the plea was not accepted by the Magistrate – it was merely offered.

The applicant submitted for an interpretation of the legislation in which the filing of the Case Conference Certificate was sufficient to establish that a plea offer had been made and ‘accepted’ by a Magistrate.

The Court (Adamson JA, Hamill and Ierace JJ each agreeing with the outcome, each with some additional reasons) observed that the construction for which the applicant contended was at odds with the plain meaning of the express words of s 25D. It applies only to a plea of guilty which has been made before and accepted by a Magistrate in committal proceedings. Previous authority confirms that the quantum of the sentencing discount turns on the actual timing of the plea (at [37] – emphasis in original). It was open to the applicant to plead guilty before he was committed for trial, but he chose not to do so. It is not to the point that there were practical forensic reasons, arising from s 25F(4) of the Act [relating to the potential erosion of the discount if the disputed facts hearing is resolved against his interests], why the applicant might have been wary of entering a plea and engaging in a disputed facts hearing on the ambit of the complainant’s lack of consent (at [38]). The situation may be different in circumstances where the accused offers to plead guilty to an offence with which they have not been charged, since Parliament has made provision for such an offer, in some circumstances, to result in the reward of a discount, as provided for in s 25D(3) and s 25E. But in the present case, the applicant offered to plead guilty to an offence with which he had been charged. Thus, he fell outside s 25D(2)(a) because he did not enter a plea prior to being committed, and fell outside of s 25D(3) and s 25E because the offence to which he offered to plead was one with which he had been charged (at [40]-[41]). To the extent that the applicant pointed to unfairness, Adamson JA commented that this ‘cannot be denied’, but observed that it was open to Parliament to have made a different legislative choice and base an offender’s entitlement to a discount on an offer to plead to a charged offence, rather than the making and acceptance of a plea to that offence (at [42]). Parliament having made a clear legislative choice, it is not for a court to attempt to ameliorate the consequences of that choice by reading words into a statute to alter its plain meaning (at [44]).

Hamill J starkly observed that ‘[d]espite the manifest unfairness of the outcome,’ he agreed with the orders proposed by Adamson JA (at [63]), opining that if the current position was a ‘legislative choice’ then it was a flawed one (at [62]). His Honour observed that the provisions are in need of some reform, although that reform may only involve minor variations in the language of the provisions (at [62]). His Honour observed that practitioners appearing for accused people must now provide full advice to their client, including that the failure to enter a plea in the Local Court will mean that they will not receive the full discount that would be available if they enter the plea (at [61]).

For his part, Ierace J doubted that the words of the section were a legislative choice at all, but rather seemed to be indicative of a disconnect in the legislation between the committal stage and the sentencing stage (at [65]). As his Honour observes, there was a Case Conference Certificate which is required to record the offers made in the committal stage. But if those offers do not (other than in cases involving ‘new count offences’ and ‘different offences’) afford a discount, then what is the purpose of the parties being obliged to record such offers in the Case Conference Certificate, if not to establish whether a subsequent plea of guilty accords with the earlier offer (at [68])? His Honour considered that there is merit in reviewing the scheme’s operation to ensure its objectives are being met (at [69]).

In the medium term, as observed by Hamill J, practitioners with matters in the committal stage whose clients wish to make an offer to plead to only a subset of the existing charges will need to consider formal entry of the plea in the Local Court – even if it isn’t going to be accepted, and even if it may result in a (risky) disputed facts hearing on sentence. If the plea to a subset of matters is not formally recorded, then the Case Conference Certificate is all but worthless.