Power to reduce penalties for assistance to authorities

In York v The Queen (2005) 225 CLR 466, Gleeson CJ at [3] observed:

It is common sentencing practice to extend leniency, sometimes very substantial leniency, to an offender who has assisted the authorities, and, in so doing, to take account of any threat to the offender’s safety, the conditions under which the offender will have to serve a sentence in order to reduce the risk of reprisals, and the steps that will need to be taken to protect the offender when released. The relevant principles are discussed, for example, in R v Cartwright (1989) 17 NSWLR 243; R v Gallagher (1991) 23 NSWLR 220.

The current basis of a court’s power to discount any sentence for a State offence where the offender has provided assistance to law enforcement authorities is found in s 23(1) Crimes (Sentencing Procedure) Act 1999.

[12-200] Statutory provision

Section 23 Crimes (Sentencing Procedure) Act 1999 provides as follows:

23 Power to reduce penalties for assistance provided to law enforcement authorities

(1) 

A court may impose a lesser penalty than it would otherwise impose on an offender, having regard to the degree to which the offender has assisted, or undertaken to assist, law enforcement authorities in the prevention, detection or investigation of, or in proceedings relating to, the offence concerned or any other offence.

(2) 

In deciding whether to impose a lesser penalty for an offence and the nature and extent of the penalty it imposes, the court must consider the following matters:

(a) 

(repealed)

(b) 

the significance and usefulness of the offender’s assistance to the authority or authorities concerned, taking into consideration any evaluation by the authority or authorities of the assistance rendered or undertaken to be rendered,

(c) 

the truthfulness, completeness and reliability of any information or evidence provided by the offender,

(d) 

the nature and extent of the offender’s assistance or promised assistance,

(e) 

the timeliness of the assistance or undertaking to assist,

(f) 

any benefits that the offender has gained or may gain by reason of the assistance or undertaking to assist,

(g) 

whether the offender will suffer harsher custodial conditions as a consequence of the assistance or undertaking to assist,

(h) 

any injury suffered by the offender or the offender’s family, or any danger or risk of injury to the offender or the offender’s family, resulting from the assistance or undertaking to assist,

(i) 

whether the assistance or promised assistance concerns the offence for which the offender is being sentenced or an unrelated offence,

(j) 

(repealed)

(3) 

A lesser penalty that is imposed under this section in relation to an offence must not be unreasonably disproportionate to the nature and circumstances of the offence.

(4) 

A court that imposes a lesser penalty under this section on an offender because the offender has assisted, or undertaken to assist, law enforcement authorities must:

(a) 

indicate to the offender, and make a record of the fact, that the lesser penalty is being imposed for either or both of those reasons, and

(b) 

state the penalty that it would otherwise have imposed, and

(c) 

where the lesser penalty is being imposed for both reasons — state the amount by which the penalty has been reduced for each reason.

(5) 

Subsection (4) does not limit any requirement that a court has, apart from that subsection, to record the reasons for its decisions.

(6) 

The failure of a court to comply with the requirements of subsection (4) with respect to any sentence does not invalidate the sentence.

Not all information provided by an offender amounts to assistance for the purposes of s 23. For example, the mere fact an offender participates in a recorded interview and makes admissions about the offence does not amount to assistance within the meaning of s 23(1): Le v R [2019] NSWCCA 181 at [53]–[54], [56]; Browning v R [2015] NSWCCA 147 at [123].

[12-202] Procedure

Evidence of assistance relied on in sentence proceedings must be dealt with carefully to maintain the confidentiality of the material. It is prudent to raise with the parties the approach to be taken in an individual case.

A statement of assistance is tendered for the sole purpose of s 23. The basis of the tender of any affidavit of assistance should be agreed and clearly stated and the question of whether there is any restriction on its use identified: Neil Harris (a pseudonym) v R [2019] NSWCCA 236 at [61]; see further Use of statement of assistance adversely at [12-240].

Appropriate non-publication orders should be tailored to ensure the offender has the opportunity to consider and test the accuracy of the evidence and to make submissions. Depending on the nature of the material, this may require providing an offender’s counsel with access to the material on certain terms: HT v The Queen (2019) 93 ALJR 1307 at [45]–[46], [57], [66]–[67]. In HT v The Queen the High Court concluded the appellant was denied procedural fairness during the Crown sentence appeal because she was not provided with access to the affidavit of assistance provided by police. The fact the affidavit was not adverse to her was irrelevant: HT v The Queen at [25]. See also [1-349] Closed court, suppression and non-publication orders in the Criminal Trial Courts Bench Book.

There is a tension in s 23 between the obligation to provide reasons in open court and the need to protect confidentiality. Revealing the fact or detail of assistance may put an offender or their family at risk, and undermine or destroy the benefits law enforcement authorities may obtain from that assistance. In a sentencing judgment it is preferable to do no more than indicate that consideration has been given to the material and draw conclusions about its utility. Providing a detailed exposition of the factors in s 23(2) may defeat the purpose of the statutory provision: Greentree v R [2018] NSWCCA 227 at [55]–[56]. For example, in Greentree v R the Court found it was not an error for the judge to refer to the “significance and the usefulness” of the assistance without elaboration. Such an approach appropriately balanced the obligation to provide reasons with the need to protect confidentiality: at [56].

[12-205] Requirement to indicate reduction for assistance

The use of the word “reasons” in s 23(4) at first glance may cause confusion. Section 23(4) requires a court, which imposes a lesser penalty either because the offender has assisted or because the offender has undertaken to assist, to indicate that a lesser penalty is being imposed. The court must state the penalty that otherwise would have been imposed and state the amount by which the sentence is reduced.

The text of s 23(4)(b) — that the court is to “state the penalty that it would otherwise have imposed” — refers to the appropriate penalty disregarding only the assistance to the authorities: R v Ehrlich [2012] NSWCCA 38 per Basten JA at [11] and Adams J at [33]. Where full time imprisonment is imposed, compliance with s 23(4) will generally, if not invariably, permit the discount to be identified, even if not expressly stated, by calculating the proportion of the sentence imposed of that which would otherwise have been imposed, each of which are to be stated: R v Ehrlich at [9]. Where the court imposes a more lenient sentencing option because of the offender’s assistance, the court should state what the harsher option would have been had the offender not assisted.

The obligation in s 23(4) to state the nature and extent of any reduction includes the scenario where an Ellis discount (see R v Ellis (1986) 6 NSWLR 603 at 604) is given — that is, the offender voluntarily discloses guilt for unknown offences: Panetta v R [2016] NSWCCA 85 at [1], [33]–[34], [60]. See further Voluntary disclosure of unknown guilt at [12-218].

Where a discount is given for a guilty plea, and past and future assistance, in most cases the court will be required to indicate the discount for all three to comply with s 23(4): LB v R [2013] NSWCCA 70 at [44]. Compliance with ss 23(3) and 23(4) cannot be fulfilled by a statement of individual discounts followed by a process of “compression” to achieve a result that does not contravene s 23(3): LB v R at [45].

In R v AA [2017] NSWCCA 84, the court considered the impact of a failure to comply with s 23(4), noting that while s 23(6) provides that the failure to comply with s 23(4) does not “invalidate the sentence”, s 101A of the Act provides that a “failure to comply with a provision of this Act may be considered by an appeal court in any appeal against sentence even if this Act declares that the failure to comply does not invalidate the sentence”. The combined effect of the provisions is therefore that a failure to comply with s 23(4) is not a jurisdictional error but complaints about such failures fall to be considered as part of the appellate process: R v AA at [44].

See further Application of discount at [12-230].

For principles applicable to sentencing Commonwealth offenders who have provided assistance, see General sentencing principles applicable at [16-010].

[12-210] Rationale

Frequently the only source of information about crime, actual or in contemplation, comes from other criminals, and it is in the public interest to encourage offenders to supply such information to authorities, including the police, and to give evidence against other offenders. Thus it has been held that the supply of full and frank information to the authorities is to be encouraged and an appropriate reward granted regardless of motive, that is whether such assistance is motivated by genuine remorse or simply self interest: see R v Cartwright (1989) 17 NSWLR 243 per Hunt and Badgery-Parker JJ at 252; endorsed in R v XX [2017] NSWCCA 90 at [46].

If the giving of assistance is motivated by genuine remorse or contrition, then even greater leniency may be extended to the offender under normal sentencing principles: R v Cartwright at 252.

As to these and other considerations relevant to the rationale for the discount, in R v Cartwright, their Honours said:

It is clearly in the public interest that offenders should be encouraged to supply information to the authorities which will assist them in bringing other offenders to justice and to give evidence against those other offenders in relation to whom they have given such information. In order to ensure that such encouragement is given, an appropriate reward for providing assistance should be granted, whatever an offender’s motive may have been in giving it, be it genuine remorse or contrition or simply self-interest. What has to be encouraged is a full and frank co-operation on the part of the offender, whatever be his motive. The effect of the discount will depend to a large extent upon the willingness with which the disclosure is made. The offender will not receive any discount at all where he outlines his disclosure so as to reveal only the information which he knows is already in the possession of the authorities. The discount will rarely be substantial unless an offender discloses everything which he knows. To this extent, the enquiry is into the subjective nature of the offender’s co-operation. If of course the motive with which the information is given is one of genuine remorse or contrition on the part of the offender, that is a circumstance which may well warrant even greater leniency being extended to him, but that is because of normal sentencing principles and practice. Contrition is not a necessary ingredient which must be shown in order to obtain the discount for giving assistance to the authorities. Again, in order to ensure such encouragement is given a reward for providing assistance should be granted if the offender has genuinely co-operated with the authorities whether or not the information supplied objectively turns out in fact to have been effective. The information which he gives must be such as could significantly assist the authorities. The information must, of course, be true. A false disclosure attracts no discount at all. What is relevant here is the potential of the information to assist the authorities as comprehended by the offender himself.

[12-215] Broad scope of s 23(1) — “any other offence”

The court in R v XX [2017] NSWCCA 90 made the following observations (at [32]–[35]) about s 23(1) in light of the text of the provision and the historic and extrinsic materials:

  • “Assistance” is not defined in the provision and the meaning should be approached as being relatively expansive. The only limitations are that the assistance be given to “law enforcement authorities” in the “prevention, detection or investigation, or in proceedings relating to” an offence;

  • The reference to “any other offence” in the text of the provision clearly contemplates that the assistance may have been provided in relation to an offence other than the one for which the offender is being sentenced;

  • Nothing in s 23(1) suggests that the assistance must have been provided after the offender’s arrest; past assistance, provided prior to arrest or even the offender’s commission of the subject offence, is therefore capable of falling within the provision.

The court went on to note that not all conduct of an offender which helps the authorities falls within s 23(1), citing unwitting assistance (R v Calderoni [2000] NSWCCA 511 at [9]) and pre-trial disclosure (s 22A Crimes (Sentencing Procedure) Act 1999) as examples: at [32], [39].

Section 23(1) confers a discretion and not an obligation on a sentencing judge to proffer a discount when assistance has been provided: R v XX at [31]. The factors listed under s 23(2) are relevant not only to an assessment of the level of discount that must be provided, they must also be considered as part of the assessment of whether any discount should be provided: R v XX at [61]; Le v R [2019] NSWCCA 181 at [55].

In noting the example given by RA Hulme J in his dissent in RJT v R [2012] NSWCCA 280 at [40], of where an offender seeks a discount on the basis that he reported a home burglary to police many years before, the court stated that even if that situation fell within s 23(1), a proper application of the criteria in s 23(2) would compel the conclusion that no lesser penalty should be imposed: R v XX at [53].

The sentencing judge in R v XX erred by allowing the respondent a 15% discount under s 23 in circumstances where, six or seven years before his arrest for child sexual offences, he had assisted in the prosecution of a conspiracy to murder charge: R v XX at [63]. Although that assistance was within the scope of s 23(1), the proper exercise of the discretion could only have led to a refusal to impose a lesser sentence. The assistance and the subject offence were entirely unrelated, there was no ongoing risk of reprisals and the respondent had already derived a benefit ($17,000) from providing that assistance (all matters under s 23(2)(i), 23(2)(g) and 23(2)(f) respectively): R v XX at [62]. Assistance to authorities most commonly occurs in the form of implicating accomplices and/or giving evidence as a Crown witness: for example, Abbas v R [2013] NSWCCA 115; R v DW [2012] NSWCCA 66. However, examples of other factual circumstances in which a discount has been afforded include:

  • An offender being sentenced for two child sexual assault offences who told police he was sexually assaulted by his grandfather as a child. It was held that the level of discount for this kind of assistance should be more limited than otherwise applied (10% was appropriate in this case): RJT v R at [9]–[10].

  • Disclosure by an offender to law enforcement authorities of otherwise unknown guilt: CMB v Attorney General for NSW (2015) 256 CLR 346 at [41], [71]; Panetta v R [2016] NSWCCA 85 at [33]–[34]; Le v R [2019] NSWCCA 181 at [50]–[52]. See also Voluntary disclosure of unknown guilt at [12-218].

[12-218] Voluntary disclosure of unknown guilt

Where an offender makes voluntary disclosures of involvement in serious crime in respect of which the police had no knowledge, he or she is entitled to a “significant added element of leniency”, in accordance with the principles set out in R v Ellis (1986) 6 NSWLR 603. In R v Ellis, not only did the respondent plead guilty, but he voluntarily disclosed to police for the first time his involvement in seven armed robberies. The degree of leniency afforded to an offender will vary depending on the likelihood of discovery of the offence: see R v Ellis, per Street CJ at 604.

Not all information provided falls within the parameters identified in Ellis. For example, in Le v R [2019] NSWCCA 181 the court concluded that admissions by the offender, concerning the period of time he was involved in the particular offending, did not amount to assistance within the meaning of s 23(1) as he had not disclosed criminality that would not otherwise have been detected or admitted guilt that was otherwise unknown: [52]–[53].

Court must state the nature and extent of any reduction

Because s 23 applies to Ellis discounts, the court is required under s 23(4) to state the nature and extent of any reduction of the sentence which would otherwise have been imposed absent that disclosure of guilt and quantify the discount separately: Panetta v R at [1], [33]–[34], [60]; R v AA [2017] NSWCCA 84 at [43]. It follows that the sentencing judge must also consider the factors listed in s 23(2). The sentencing judge in R v AA erred by failing to do so before stating that he was granting the offender a “further Ellis type discount”: R v AA at [49].

The voluntary confession of criminality will also be relevant to other, more general considerations such as the prospects of rehabilitation and the likelihood of further offending: Lewins v R [2007] NSWCCA 189 at [18]. The court can take into account that there has been a long delay between the commission of the crime and sentencing, and that the offender had since been rehabilitated. On the other hand, a lengthy period of concealment and lying to the police are factors not to be ignored: R v Baldacchino (unrep, 3/11/98, NSWCCA).

Must discount for voluntary disclosure be substantial?

In Ryan v The Queen (2001) 206 CLR 267, Kirby J followed the previous decisions of R v Ellis (1986) 6 NSWLR 603 at 604 and AB v The Queen (1999) 198 CLR 111 at 126 in holding that the disclosure of offences that would have been otherwise unknown to the authorities warrants “considerable” or “significantly added” leniency in sentencing. Of the latter words, his Honour said at [97]:

[W]ords represent images that conjure up ideas. The words “significant” and “considerable” are adjectives of degree. Prima facie a large deduction in sentence is appropriate in such a case. Otherwise, the judges concerned, when they expressed the applicable rule, could have used lesser adjectives, such as “modest” or “minimal” or perhaps the ever enigmatic “appropriate”. For a long time now it has been the law — correctly in my view — that a “significant” discount should be given in a case such as the present.

In Panetta v R [2016] NSWCCA 85, the offender was given a combined discount of 60% (50% Ellis and 10% for his guilty plea) in the unusual circumstances of the case: at [76]; [7].

In R v GLB [2003] NSWCCA 210, the court held at [33] that, although some discount should be allowed:

a sentencing judge is not required, in every case in which there has been a voluntary disclosure of guilt by the offender, to allow a considerable or significant discount because of the voluntary disclosure of guilt or to say in the judge’s remarks on sentence that the judge has allowed a considerable or significant discount on this ground.

Howie J said in Lewins v R at [18]:

Although the leniency referred to in these decisions extends to those cases where the offender volunteers additional criminality otherwise unknown to the police, the extent of the leniency will obviously not be of the same significance as in those cases where the police are unaware of any criminal offences committed by the offender. It is a matter of degree. In some cases the known criminality might be so great that little leniency can be shown for the further offences revealed by the offender.

The applicant in DBW v R [2007] NSWCCA 236 at [18] was entitled to a significant amelioration of his sentence for confessing to criminality that was unknown and unlikely to be detected. On the other hand, in Zhang v R [2011] NSWCCA 233 at [30], the offender was not entitled to any significant leniency because there was a real likelihood that police would have been alerted to the arrival of another package of drugs without the offender’s information.

The entitlement to a discount applies, albeit to a lesser extent, where (precipitated by the co-offender) the police are close to identifying the offender and then the offender voluntarily surrenders and confesses: see R v Hasan [2005] NSWCCA 21 at [23].

[12-220] “Unreasonably disproportionate” penalty — s 23(3)

A court is required to consider all the matters listed under s 23(2) Crimes (Sentencing Procedure) Act 1999 and must not reduce a sentence so that it becomes unreasonably disproportionate to the nature and circumstances of the offence: s 23(3). Hence, there is a limit to the value provided by assistance to authorities. In R v Chaaban [2006] NSWCCA 107 at [3] Hunt AJA said:

In Regina v Gallagher (1991) 23 NSWLR 220 at 232 — well before s 23(3) was enacted — Gleeson CJ (with whom I expressly agreed on this issue, at 234), after pointing out that discounts of this kind are for the benefit of both the Crown and the offender, and that there is usually no-one to put an opposing or qualifying point of view, said:

“Public confidence in the administration of criminal justice would be diminished if courts were to give uncritical assent to arguments for leniency, which are being jointly urged by both the prosecution and the defence, in circumstances which may call for a close examination of the alleged assistance. Care must also be taken to ensure that the ultimate sentencing result that is produced is not one that is so far out of touch with the circumstances of the particular offence and the particular offender that, even understood in the light of the considerations of policy which supports [the discounts given], it constitutes an affront to community standards. If sentencing principles are capable of producing an outcome of that kind, then that calls into question their legitimacy.” [Emphasis added in Hunt AJA’s judgment.]

The appropriateness of any discount for assistance involves an assessment of other features of a case where the ultimate consideration is whether the resultant sentence is a just one: R v Dib [2003] NSWCCA 117 at [53]; R v NP [2003] NSWCCA 195 at [26] and R v Olson [2003] NSWCCA 349 at [18].

Necessity of court to scrutinise the information

It is a common feature of cases where leniency is being sought on behalf of a person who has co-operated with the authorities that the argument in favour of such leniency comes from the Crown as well as the offender.

The prosecuting authorities themselves have gained, or hope to gain, from the assistance in question, and it is understandable that they regard it as advancing the interests which they represent to see that such assistance is suitably and publicly rewarded. There is, however, usually no-one to put an opposing or qualifying point of view. This raises the need for special care on the part of the court, which must be astute to ensure it is being given accurate, reliable, and complete information concerning the alleged assistance and the benefits said to flow from it: R v Gallagher (1991) 23 NSWLR 220 at 232; R v Fisk (unrep, 21/7/98, NSWCCA).

An inquiry relating to the quality of the assistance should be dealt with in a broad and general way and not descend into minute detail lest it subvert the benefit otherwise afforded to the public interest: R v Cartwright (1989) 17 NSWLR 243 at 253. Where information given to assist authorities is only partly true and does in fact assist the authorities, the fact it was partly false does not itself disentitle the offender from a reduction in sentence: R v Downey (unrep, 3/10/97, NSWCCA).

Resolving assertions on appeal that sentence unreasonably disproportionate

In a Crown appeal against sentence where a lesser sentence has been imposed to take into account the offender’s assistance to law enforcement authorities, the issue for the Court of Criminal Appeal is not whether it regards the sentence as “unreasonably disproportionate” within the meaning of s 23(3), but whether it was open to the sentencing judge to decide that the sentence actually imposed was not unreasonably disproportionate. The focus is on whether the primary judge’s conclusion was open. Whether a sentence is unreasonably disproportionate is a judgment about which reasonable minds may differ: CMB v Attorney General (NSW) (2015) 89 ALJR 407 at [78].

See also Appeals at [70-000]ff.

[12-230] Application of discount

It is inappropriate to apply a discount for assistance to the authorities “wholly to the non-parole period [as such] an approach [is] only likely to skew the whole sentencing exercise, particularly after a large discount has been given for the guilty pleas when fixing the head sentences”: R v MacDonnell [2002] NSWCCA 34 at [48]. Where an aggregate sentence is imposed the discount must be applied to each indicative sentence, not the aggregate sentence: TL v R [2017] NSWCCA 308 at [102]–[103].

Method of calculation of discount — combined or separate?

Section 23(4) does not prescribe a method or manner in which the discounting is to be achieved: R v Ehrlich [2012] NSWCCA 38 at [7]. Although Gleeson CJ’s remarks in R v Gallagher are qualified by s 23(4) their “tenor is not diminished”: R v Ehrlich per Basten JA at [7]. Gleeson CJ said in R v Gallagher (1991) 23 NSWLR 220 at 230:

… it is essential to bear in mind that what is involved is not a rigid or mathematical exercise, to be governed by “tariffs” derived from other or different cases but, rather, one of a number of matters to be taken into account in a discretionary exercise that must display due sensitivity towards all the considerations of policy which govern sentencing as an aspect of the administration of justice.

Different approaches have been taken to discounting: R v Ehrlich per Basten JA at [11]; Adams J at [33]. There is authority which permits discounts to be separately identified and then applied consecutively: R v Ehrlich at [11]. Another commonplace approach is to identify individual discounts and add them so as to achieve a single global figure: R v Ehrlich at [11]–[12].

Neither approach is erroneous because s 23(4) “says nothing as to the manner in which the discounting is to be achieved. Indeed, on one view, the manner in which it is achieved is irrelevant: the selected reduction can be expressed in a number of different ways, none of which is prohibited”: R v Ehrlich per Basten JA at [11]. The real issue with respect to the allowance of a discount on two bases is to avoid double counting of a particular element: R v Ehrlich per Basten JA at [13]–[14]; Hamzy v R [2014] NSWCCA 223 at [73].

The court in CM v R [2013] NSWCCA 341 at [45] held that there was no reason for the judge to confine the discount to just one of the five sentences. Rather, the judge should have discounted each sentence which should have had a modest bearing on the overall term: CM v R at [48]. When there is a degree of accumulation of multiple sentences it is necessary to ensure that any discount is not eroded by the process of accumulating sentences: CM v R at [44]. Discounts applied to individual sentences need not be reflected with mathematical precision in the overall or effective term. There is, however, a need for some proportionality: CM v R at [48].

Level of discount

It is not helpful to speak of a level of discount as being generally available: R v Ehrlich [2012] NSWCCA 38 per Basten JA at [11]; Hamzy v R [2014] NSWCCA 223 at [74]. It makes assumptions about the matters to which the court must have regard in s 23(2) and runs the risk of selective reliance on authorities to the exclusion of others. There are decisions such as R v NP [2003] NSWCCA 195 at [29] and Z v R [2014] NSWCCA 323 at [43] which permitted a discount for assistance of up to 50%. As Gleeson CJ said in R v Gallagher (1991) 23 NSWLR 220 at 230 “what is involved is not a rigid or mathematical exercise, to be governed by ‘tariffs’ derived from other and different cases”: R v Ehrlich at [6]; see also Buckley v R [2021] NSWCCA 6 at [1]. The process embarked upon in reducing a sentence for assistance is not one of arithmetic calculation or the blind application of percentage discounts: Haouchar v R [2014] NSWCCA 227 per Rothman J at [39]. Beazley JA said in R v Z [2006] NSWCCA 342 at [88]:

the focus should not be so much upon the precise numerical value of the discount but rather upon the question whether, after all relevant matters have been taken into account, the sentence imposed is appropriate.

The relevant restraint derives from the requirement in s 23(3) that the sentence not be disproportionate to the nature and circumstances of the offence: Buckley v R at [1]; [87].

The SZ v R line of authority: the combined discount

The approach of the Court in R v Ehrlich [2012] NSWCCA 38 to discounting can be contrasted with the approach in SZ v R [2007] NSWCCA 19 at [44]. There, the court held that generally only a single, combined discount for both a plea of guilty and assistance should be given: at [44]. This approach was confirmed in Panetta v R [2016] NSWCCA 85. The application of two discrete discounts, one for assistance and the other for a guilty plea, is liable to lead to error unless the court is aware of the overall discount: SZ v R at [11].

Johnson J in R v Ehrlich at [71] said the authority of SZ v R at [9]–[11] should continue to be applied on the basis it represents “a principled approach which has been applied regularly by this Court, and by first instance Judges, in determining sentence where there are several discounts under consideration, including a discount for assistance”. The sentencing judge erred in SZ v R by giving excessive discrete discounts of 25% for the guilty plea and 50% for assistance with a combined discount of 62.5%.

The constraint in s 23(3) will not generally be met by giving a discount of more than 50% in cases where a quantified Ellis discount and a guilty plea discount applies: Panetta v R at [75], [7]. The court in Buckley v R [2021] NSWCCA 3, while acknowledging that earlier cases such as SZ v R and Z v R expressed and endorsed the view that a single combined discount should not normally exceed 50%, reiterated the importance of assessing the facts and circumstances of the particular case, including most significantly, s 23(3), concluding that the effective constraint is not a rigid mathematical rule but the constraint established by s 23(3): at [1]; [87].

It would be in a rare case that a discount of more than 60% would not result in a manifestly inadequate sentence: SZ v R at [11]. This is because since the decision of Thomson and Houlton, where the utilitarian value of the plea could be as high as 25%, the courts have had less scope to give a discount for assistance in cases of an early plea: SZ v R at [9]. The statutory fixed discounting scheme for the utilitarian value of a guilty plea in matters dealt with on indictment in Pt 3, Div 1A, Crimes (Sentencing Procedure) Act 1999 may operate to similar effect: see Guilty plea discounts for offences dealt with on indictment at [11-515] and Combining the plea with other factors at [11-530].

The sentencing judge is required to stand back and ask whether the resulting sentence is just and reasonable, not only to the offender but also to the community at large after taking into account the various statutory and common law principles and applying such discounts that arise on the particular facts: SZ v R at [5].The court in SZ v R also held that it is important to avoid double counting in cases of assistance by finding special circumstances after the non-parole period has already been reduced: SZ v R at [11].

See also Combining the plea with other factors at [11-530].

SZ v R and not guilty pleas

Z v R [2014] NSWCCA 323 held that SZ v R [2007] NSWCCA 19 does not govern the scenario where an offender pleads not guilty and provides substantial assistance to authorities. It is wrong to proceed on the basis that SZ v R prescribes a ceiling for the level of discount in such a case; the primary judge had therefore erred in construing s 23 with an implied algorithm to conclude a discount for assistance alone was confined to 25%: Z v R at [33]. The court stated that “[t]o construe the Act with that level of mathematical rigidity would come close to punishing some offenders who offer assistance for not pleading guilty”: Z v R at [34].

Protective custody and level of assistance

The level of discount should not assume an offender who offers assistance will necessarily serve his or her sentence in onerous conditions: R v Sukkar [2006] NSWCCA 92 at [5]; R v Durocher-Yvon (2003) 58 NSWLR 58; R v Mostyn [2004] NSWCCA 97. In R v Sukkar, Howie J said at [5]:

It should now be accepted that an offender who has provided assistance will not necessarily be disadvantaged in the prison system and, if the offender wishes to assert otherwise, he or she should lead evidence of that fact.

Unless there is evidence the offender will serve his or her sentence in more onerous conditions as a result of giving assistance, the combined discount should not normally exceed 40%: Brown v R [2010] NSWCCA 73 at [38], quoting R v Sukkar. Where there will be more onerous conditions of imprisonment, the combined discount should not exceed 50%, unless very exceptional circumstances are disclosed. In that respect, onerous conditions are a corollary of the assistance granted and are not exceptional circumstances: Haouchar v R [2014] NSWCCA 227 at [37].

[12-240] Promised assistance

Appeals following a failure to provide promised assistance

The Crown may appeal against the reduced sentence if the prisoner fails to fulfil his or her promise of assistance: s 5DA Criminal Appeal Act 1912. In R v KS [2005] NSWCCA 87 Wood CJ at CL said at [19]:

The ability of the Crown to invoke this section is a very important part of the criminal justice system. Persons who give undertakings and who receive the benefit of those undertakings by way of a discounted sentence can, subject to exceptional circumstances, expect to have their sentences increased if they renege on their undertaking to give evidence. The departure from an undertaking of that kind is not to be regarded lightly and it will normally justify appellate intervention.

Where the undertaking is to give evidence, adherence to that undertaking requires more than simply attending court: R v X [2016] NSWCCA 265 at [43]. In R v X, the respondent gave an undertaking to give evidence as a Crown witness in accordance with an earlier police statement. Although he attended court and gave evidence, in some respects the evidence was diametrically opposed to what he had told police in his statement: R v X at [44]–[46]. See also R v MG [2016] NSWCCA 304 at [42].

In R v James [2014] NSWCCA 311, where the failure to wholly or partly fulfil an undertaking was disputed between the parties, it was accepted that the court would at least have to be “comfortably satisfied” the undertaking had not been fulfilled, which it was not in the circumstances. Although it was not necessary to determine in light of that conclusion, the court questioned whether parity of reasoning with The Queen v Olbrich (1999) 199 CLR 270 would require satisfaction of that fact beyond reasonable doubt: R v James at [46].

Difficulties may arise where the reason advanced for not fulfilling an offer of assistance is that the respondent has been threatened. In Bagnall and Russell (unrep, 10/6/94, NSWCCA), the authorities failed to provide reasonable protection. Simpson J said of cases where threats have been made in R v El-Sayed (2003) 57 NSWLR 659 at [32]–[35]:

Generally speaking (apart from situations such as that which arose in Bagnall and Russell) the reason for any failure to honour the undertaking is of little materiality. Where, as is here put forward, the reason for the failure to honour the undertaking lies in an understandable fear resulting from threats, that circumstance does not affect the fact that the undertaking has not been honoured. The basis for the discount lies in a factual assumption — that certain evidence will be given. If the evidence is not given, then the factual underpinning for the discount disappears. The discount has been given on a premise which has subsequently been proven to be false …

It would be anomalous if an offender, such as the present respondent, who was, at the time of sentencing, willing and able to give assistance, but subsequently, by reason of threats of the same kind, found himself or herself unable or unwilling to do so, could retain the benefit given. There is no reason of principle why the two offenders should be distinguished and one should receive a reduction in sentence and the other be denied it, merely by reason of the timing of the threats. In my opinion, the fact that the threats were made does not justify the court in declining to exercise the s 5DA(2) discretion in favour of the Crown.

The court’s power to vary the sentence under s 5DA(2) is nevertheless discretionary. Each case must be decided on its own facts and the discretion to dismiss an appeal is not limited to cases where the authorities fail to provide the prisoner with reasonable protection: R v Chaaban [2006] NSWCCA 352 at [47] and [55]. Hidden J in R v Chaaban at [39] discusses the difficulties that may arise when the offender is under duress and does not assist authorities as promised. Bell J in R v Chaaban at [54] said that, for the reasons explained by Simpson J in R v El-Sayed (quoted above), the fact that an undertaking was not honoured, as a result of some element of duress, will commonly not justify a decision to allow the discount to remain undisturbed.

The exercise undertaken by the appellate court is not one of punishment, but of withdrawing an unearned benefit from a person who entered into a bargain and thereafter failed to fulfil it: R v Dimakos (a pseudonym) [2018] NSWCCA 78 at [50]. There are obvious systemic reasons why persons who fail to maintain their side of a bargain should, except in unusual circumstances, suffer consequences as a result: R v Dimakos at [53].

The power under s 5DA does not allow the court to review the sentence generally: R v Waqa [2004] NSWCCA 405 at [26]; R v Douar [2007] NSWCCA 123 at [32]. Given s 5DA(2) empowers the court to re-sentence “as it thinks fit”, the court is not limited to merely reapplying the discount given for an unfulfilled promise to give future assistance: R v GD [2013] NSWCCA 212 at [41] per Button J, R v Shahrouk [2014] NSWCCA 87 at [51]. Subsequently however, in R v OE [2018] NSWCCA 83, Button J emphasised that R v GD was to be read “in the unusual context of that appeal; namely the failure of the sentencing judge to provide any allocation between past and future assistance”: at [61].

For the proper approach to reversing or adjusting a sentence to take account of a failure to adhere to an undertaking upon which a discount has been given, see R v OE at [55]; R v GD [2013] NSWCCA 212 at [48]–[52]; R v Shahrouk at [65].

Co-operation post sentencing

Assistance rendered after sentence is a matter for the Executive, not the courts, except (rarely) to correct an erroneous basis of sentencing: R v Moreno (unrep, 4/11/94, NSWCCA). Therefore, an offender appealing against the severity of his or her sentence may not seek a reduction of sentence on the ground of assistance given to authorities after the date of sentencing: Khoury v R [2011] NSWCCA 118 at [111]–[112]. The appeal court must find error before evidence of post-sentencing events, such as unanticipated assistance to authorities, may be taken into account: R v Gallagher (1991) 23 NSWLR 220; R v Willard [2001] NSWCCA 6 per Simpson J at [24]–[27]; Douar v R [2005] NSWCCA 455 at [126].

Use of statement of assistance adversely

A statement made by an offender following a promise that it will not be used in evidence against him or her may be tendered in order to demonstrate to a sentencing judge the extent of the assistance to authorities for the purpose of mitigation.

In R v Bourchas [2002] NSWCCA 373 the appellant had entered a guilty plea at the earliest opportunity and provided significant assistance to the authorities. On sentence, the Crown tendered his long and detailed statement, which was made following a promise that it would not be used against him. The appellant objected to the tender. The trial judge admitted the statement and took information in it into account when sentencing the appellant, including information unfavourable to the appellant, which was not otherwise in evidence.

The court held that the sentencing judge erred in taking into account the statement of the appellant otherwise than as evidence of the appellant’s assistance to authorities: see [100].

At [99], Giles JA summarised his findings in relation to the issue as follows:

1. 

The offender carries the burden of proving assistance to the authorities, as a matter going to mitigation.

2. 

The Crown should assist the offender in the discharge of that burden.

3. 

The assistance may extend to the Crown tendering the evidence of assistance to the authorities, but the Crown should not do so over the objection of the offender.

4. 

A statement made by way of assistance to the authorities on an undertaking that the information in it will not be used against the offender may properly be admitted on the basis that the information in it will not be used against the offender, and with its use restricted accordingly.

5. 

When the offender tenders a statement made by way of assistance to the authorities, or accepts the Crown’s assistance in tendering such a statement, it is prudent that the basis of the tender be agreed and stated showing any restriction on the use of the information in the statement; if there is disagreement, a ruling can be made in the normal way.

6. 

In the absence of an agreed basis of tender or a ruling at the time of admission, whether use of a statement made by way of assistance to the authorities is restricted will depend on the circumstances, but normally the information in the statement cannot be used against the offender.

See also JMS v R [2010] NSWCCA 229 at [29]; Govindaraju v R [2011] NSWCCA 55 at [66].