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 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.

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

[12-200] Statutory provision

Last reviewed: August 2023

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

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


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.


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:




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,


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


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


the timeliness of the assistance or undertaking to assist,


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


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


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,


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




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.


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:


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


state the penalty that it would otherwise have imposed, and


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


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


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

[12-205] Rationale

Last reviewed: August 2023

Frequently the only source of information about an actual or contemplated crime 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. Section 23 is the statutory expression of the policy to encourage the supply of full and frank information to authorities by granting an offender an appropriate reward regardless of whether the assistance was motivated by genuine remorse or 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 and as to these, and other considerations relevant to the rationale for the discount, in R v Cartwright at 252, 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 to bring 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 the 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 extent 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 tailors 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. The 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, the 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. [emphasis in original]

The rationale for the discount as explained in R v Cartwright remains valid, despite the enactment of s 23: AGF v R [2016] NSWCCA 236 at [35]–[36].

[12-210] Procedure

Last reviewed: August 2023

Presenting evidence of assistance

It is incumbent on the offender to establish that a discount for assistance should be provided: R v SS [2021] NSWCCA 56 at [74]; Ahmad v R [2021] NSWCCA 30 at [36]. However, the Crown has an obligation to assist the offender discharge this burden as a matter of public interest and practicality because it may be difficult for an offender to adduce such evidence: R v Cartwright (1989) 17 NSWLR 243 at 254–255; R v Bourchas [2002] NSWCCA 373 at [99].

Evidence of assistance is typically in the form of an affidavit, or letter, of assistance by a senior law enforcement officer who identifies the assistance provided and makes an assessment as to its value. A statement taken from an offender provided on the basis the evidence contained in it will not be used against them (an induced statement) may also be tendered to demonstrate to the sentencing court the extent of their assistance for the purpose of mitigation. When the offender’s statement is tendered it is encumbent on the parties to identify for the sentencing court any limitations on its use: Macallister (a pseudonym) v R [2020] NSWCCA 306 at [39]–[41].

A statement of assistance is tendered for the sole purpose of s 23. As is the case when an offender’s induced statement is tendered, the basis for tendering an affidavit, or letter, 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]. The same caution used when considering an induced statement should also be exercised when a letter of assistance is tendered for the sole purpose of s 23: Neil Harris (a pseudonym) v R at [61] applying the principles in R v Bourchas at [99]. See further Offender’s induced statement cannot be used adversely below.

Maintaining confidentiality of material

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

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) 269 CLR 403 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].

Offender’s induced statement cannot be used adversely

An offender’s induced statement, while it may be admitted in the offender’s sentence proceedings, cannot be used against them: R v Bourchas at [99].

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

The court held that the judge erred in taking into account the appellant’s statement otherwise than as evidence of his assistance to authorities: at [100]. Giles JA, at [99], summarised his findings in relation to the issue as follows:


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


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


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.


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.


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.


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].

[12-215] Broad scope of s 23(1)

Last reviewed: August 2023

Section 23 takes an expansive approach to what constitutes “assistance”: R v XX [2017] NSWCCA 90 at [53].

Assistance to authorities most commonly occurs in the form of implicating accomplices and/or giving evidence as a Crown witness: see for example, Abbas v R [2013] NSWCCA 115; R v DW [2012] NSWCCA 66. However, voluntary disclosure to law enforcement authorities of otherwise unknown guilt also falls within the ambit of s 23: 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]; Ahmad v R [2021] NSWCCA 30 at [24]. A discount granted for this type of assistance is commonly referred to as an Ellis discount (from R v Ellis (1986) 6 NSWLR 603 discussed further below at [12-218] Voluntary disclosure of unknown guilt — Ellis discounts.

Another situation where a discount was afforded arose in RJT v R [2012] NSWCCA 280 where an offender being sentenced for two child sexual assault offences told police he was sexually assaulted by his grandfather as a child. It was held that while s 23 extended to assistance of this kind the level of discount should be more limited than otherwise applied (10% was found to be appropriate): at [9]–[10].

However, 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].

In Vaiusu v R [2022] NSWCCA 283, it was held that the offender, who had entered into negotiations with police for the surrender of unlawful firearms, was not entitled to a discount as a concluded agreement had not been reached, and he had not “undertaken to assist” in accordance with s 23(1): at [67].

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 at [55].

In noting the example given by RA Hulme J in his dissent in RJT v R 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), (g) and (f) respectively): R v XX at [62].

Because s 23 applies to Ellis discounts, it follows that a sentencing court must also consider the factors in s 23(2) when determining whether to proffer the discount: R v AA [2017] NSWCCA 84 at [45]. The sentencing judge in that case erred by failing to do so before stating he was granting the offender a “further Ellis type discount”: at [49].

[12-218] Voluntary disclosure of unknown guilt — the Ellis principle

Last reviewed: August 2023

In R v Ellis (1986) 6 NSWLR 603, decided before the enactment of s 23, the court held that an offender who voluntarily discloses their involvement in serious crime about which the police had no knowledge was entitled to a “significant added element of leniency”. 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 in cases of this kind will vary depending on the likelihood of discovery of the offence: R v Ellis, per Street CJ at 604.

Although since at least CMB v Attorney General for NSW (2015) 256 CLR 346, it has been accepted that assistance of this kind may entitle an offender to a reduced sentence under s 23, R v Ellis and the cases which have considered it provide guidance as to why such assistance may justify a sentence discount under s 23: see R v SS [2021] NSWCCA 56 at [43]–[44], and the discussion at [59]–[65].

In Ryan v The Queen (2001) 206 CLR 267, McHugh J discussed the extent to which leniency may be extended pursuant to R v Ellis, saying at [15], that:

The statement in Ellis that “the disclosure of an otherwise unknown guilt of an offence merits a significant added element of leniency” is a statement of a general principle or perhaps more accurately of a factor to be taken into account. It is not the statement of a rule to be quantitatively, rigidly or mechanically applied. It is an indication that, in determining the appropriate sentence, the disclosure of what was an unknown offence is a significant and not an insubstantial matter to be considered on the credit side of the sentencing process. How significant depends on the facts and circumstances of the case.

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 [2007] NSWCCA 189 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.

In Panetta v R [2016] NSWCCA 85, the applicant was entitled to considerable leniency for his confession in circumstances where there was no prospect of the offence (murder) or the offender’s involvement in it coming to light: at [70]. On the other hand, in R v SS, the offender was not entitled to leniency for assistance because of his admissions as there was independent evidence of his guilt: at [83].

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].

Relevance to remorse and contrition

The voluntary confession of criminality will also be relevant to other, more general considerations such as remorse, the prospects of rehabilitation and the likelihood of further offending: Lewins v R at [18]; see also [10-420] Contrition and [11-290] Section 21A(3)(i) — remorse shown by the offender. In R v SS, although the applicant was not entitled to a discount for assistance, his admission supported a finding of genuine remorse: at [85]. The court can also 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).

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

Last reviewed: August 2023

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.]

Section 23(3) is the statutory enactment of this principle from R v Gallagher. The term “unreasonably” in s 23(3) is given a wide operation: CMB v Attorney General of NSW (2015) 256 CLR 346 at [78].

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].

Necessity of court to scrutinise the information

It is common in 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 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) at [78].

See also Appeals at [70-000]ff.

[12-225] Requirement to indicate reduction for assistance — s 23(4)

Last reviewed: August 2023

Section 23(4) requires a court, which imposes a lesser penalty because the offender has assisted or 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 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.

Because s 23 also 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 [2016] NSWCCA 85 at [1], [33]–[34], [60]; R v AA [2017] NSWCCA 84 at [43].

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, 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].

A court must also avoid double counting an element on sentence, for example when assistance also reflects contrition: R v Ehrlich per Basten JA at [13]–[14]; Hamzy v R [2014] NSWCCA 223 at [73]. While the discount for assistance must be quantified, the discount for contrition is generally not quantified: s 23(4); see [10-420] Contrition.

[12-230] Applying the discount

Last reviewed: August 2023

The factors in 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 [2017] NSWCCA 90 at [61]; Le v R [2019] NSWCCA 181 at [55]. If a sentencing court is to reduce a sentence because of an offender’s assistance, regard must be paid to the mandatory considerations in s 23(2) and the discount must be specified: Ahmad v R [2021] NSWCCA 30 at [36], [41]. Even if a court chooses not to impose a lesser penalty for the assistance given regard must still be had to the matters identified in s 23(2): Ahmad v R at [41]; R v AA [2017] NSWCCA 84 at [45].

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 (1991) 23 NSWLR 220 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 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]. While the discount for assistance must be quantified, the discount for contrition is generally not quantified: s 23(4); see [10-420] Contrition.

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 per Basten JA at [11]; Hamzy v R 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 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].

In SZ v R [2007] NSWCCA 19 at [44], the court held that generally only a single, combined discount for both a guilty plea and assistance should be given because applying two discrete discounts may lead to error “unless the court is conscious of the overall discount being given and considers whether a discount of that degree can result in a sentence that does not infringe s 23(3): at [11], [44]. This approach was confirmed in Panetta v R [2016] NSWCCA 85.

Some guidance about the constraint in s 23(3), that the sentence not be unreasonably disproportionate to the nature and circumstances of the offence as it applies to a combined discount for a plea of guilty and assistance, may be obtained from:

  • Generally, a combined discount of more than 50% will not comply with s 23(3) and rarely will a discount of more than 60% be appropriate: SZ v R at [11]; Z v R at [33]; Panetta v R at [75], [7].

  • A combined discount of 50% incorporates an offender serving their sentence in more onerous conditions, otherwise the combined discount should not normally exceed 40%: Brown v R [2010] NSWCCA 73 at [38]; Haouchar v R [2014] NSWCCA 227 at [37].

  • In SZ v R, the judge erred by giving a combined discount of 62.5%, reflecting a 25% discount for a guilty plea and 50% discount for assistance. However, given the unusual circumstances in Panetta v R (a voluntary confession to murder where the applicant’s involvement was unlikely to have been discovered) a combined discount of 60% (50% for assistance and 10% for his guilty plea) was appropriate: at [7], [76]. See also R v NP [2003] NSWCCA 195 at [30] involving a 60% combined discount for plea of guilty and assistance.

However, the court in Buckley v R, while acknowledging that earlier cases such as SZ v Rand Z v Rexpressed 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]. In McKinley v R [2022] NSWCCA 14, Rothman J (Macfarlan JA and Dhanji J agreeing) addressed this more directly, observing, at [48]–[49], that cases such as R v Sukkar [2006] NSWCCA 92, SZ v R and FS v R [2009] NSWCCA 301, which said it would be a rare case where a combined discount of more than 60% would not result in a manifestly inadequate sentence, “probably did not withstand later authority criticising an arithmetic approach to sentencing.” His Honour emphasised at [50] that determining “the reduction for assistance pursuant to the terms of s 23 … depends on assessment of the mandatory considerations prescribed by s 23(2).”

Ultimately, the sentencing judge must 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: at [11].

The advent of more standardised discounts, such as the utilitarian value of a guilty plea being as high as 25%, following the decision of R v Thomson and Houlton (2000) 49 NSWLR 383, means courts have 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].

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

Assistance 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].

[12-240] Promised assistance

Last reviewed: August 2023

Appeals following a failure to provide promised assistance

The Crown may appeal against the reduced sentence if the person fails to fulfil their 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].

Exercising the 5DA discretion

The appellate court’s power to vary a sentence under s 5DA(2) is discretionary, and the court may exercise its discretion not to intervene in an appropriate case, despite an offender not fulling their promise to assist: CC v R [2021] NSWCCA 71 at [68]–[71]; see also R v Skuthorpe [2015] NSWCCA 140 at [36].

The exercise undertaken by the court is not one of punishment, but of withdrawing an unearned benefit from a person who entered into a bargain and then failed to fulfil it: R v Dimakos (a pseudonym) [2018] NSWCCA 78 at [50]; see also CC v R at [67] and the cases there cited. There are obvious systemic reasons why such a person should, except in unusual circumstances, suffer consequences as a result: R v Dimakos at [53].

In R v OE [2018] NSWCCA 83 the court, at [55], summarised 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 as follows:


remove all the discounts to find the starting point of the head sentence at first instance;


apply any discount for a guilty plea and any remaining discount for assistance to calculate the head sentence; and


apply the same ratio of non-parole period to head sentence as fixed by the first instance sentencing judge.

See also: R v GD [2013] NSWCCA 212 at [48]–[52]; R v Shahrouk [2014] NSWCCA 87 at [65].

Difficulties may arise where the reason advanced for not fulfilling an offer of assistance is that the respondent has been threatened. In R v Bagnall and Russell (unrep, 10/6/94, NSWCCA), the court exercised its discretion not to disturb the sentences even though the respondents failed to comply with their undertakings because the authorities had failed to provide reasonable protection for them. 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.

However, 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].

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 at [41] per Button J, R v Shahrouk at [51]. Subsequently however, in R v OE, 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].

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 their 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].