Sentencing Bench Book — Sentencing procedures generally

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.

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].

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:

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

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).

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).

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.

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:

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].

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 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:

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) Act1999 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].

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].

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]:

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].

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:

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]:

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].

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].