Section 25D establishes inflexible temporal limits governing the degree of discount available at specified procedural intervals in the committal and trial process, and imposes graduated discounts based on the timing of the entry or indication of a guilty plea: Gurin v R [2022] NSWCCA 193 at [24], [26].

Section 25D(1) requires a court to apply a discount for the utilitarian value of a guilty plea, in accordance with the balance of the section, if the offender pleaded guilty before being sentenced. It is clear from the language of s 25D(1) that such discounts are made solely “for the utilitarian value of a guilty plea”: Doyle v R [2022] NSWCCA 81 at [18]. Remorse (s 21A(3)(i)) and/or a willingness to facilitate the administration of justice (s 22A) are conceptually distinct and must be considered separately: Doyle v R at [16]–[19].

Section 25D(2) prescribes the following mandatory discounts for the utilitarian value of a guilty plea:

A mandatory discount in s 25D must not be rounded up or down to an even number of months: Sampson v R [2025] NSWCCA 25 at [43], [49].

Note:

the sentencing calculator on JIRS assists with calculating sentences of imprisonment, including in relation to the deduction of any discount to the day.

Regarding s 25D(2)(a), offenders will only be entitled to a 25% discount if the plea is actually entered in the Local Court: Rokovada v R at [43]. In that case, the Court held the sentencing judge was correct to allow a 10% discount where the Crown accepted a plea offer at a District Court “super call-over” which had previously been made by the offender, and rejected by the Crown, in the Local Court: [44]; [50]; [64].

Regarding, s 25D(2)(b), the “first day of the trial of an offender” is defined in s 25C(1) as:

The word “vacated” means adjourned before the trial commenced: Gurin v R at [27], [29]. The adjournment resets the clock, providing the offender with another opportunity to enter a guilty plea 14 days before the next day fixed for trial, but once the trial commences the opportunity for a 10% discount is lost: [29].

The 5% discount under s 25D(2)(c) applies if a plea of guilty is entered less than 14 days before the first day of trial including, for example, after a complainant has given evidence in the trial: DS v R [2025] NSWCCA 53 at [61]–[63].

The mandatory discount scheme also applies to an offence the subject of an ex officio indictment or a count for a new offence added to an existing indictment: s 25D(3). A 25% discount is prescribed where the offender pleads guilty as soon as practicable after the ex officio indictment is filed or the indictment is amended to include the new count: s 25D(3)(a), (a1). However, the offender is not entitled to the 25% discount if:

Section 25D(4) forecloses the availability of large sentencing discounts when there are earlier opportunities for both parties to offer and negotiate a guilty plea. It would otherwise be inimical to the principle objective of the early appropriate guilty plea scheme to allow for the maximum discount to be available: R v Doudar [2020] NSWSC 1262 at [63]. “Substantially the same” in s 25D(4)(a) should be given its natural and ordinary meaning: [64]. In R v Doudar, the sentencing judge rejected a submission that a 25% discount should be given and concluded a 10% discount for a guilty plea to accessory after the fact for murder was appropriate, because that offence occurred within substantially the same factual and evidentiary matrix as the original murder charge for which the offender had been committed for trial: [63], [65], [67].

The scheme also applies to an offender who pleads guilty after being found fit to be tried where the matter was not remitted to a magistrate for further committal proceedings: s 25D(5). A 25% discount is only available if the offender pleads guilty as soon as practicable after being found fit to be tried: s 25D(5)(a).

In determining whether a plea was entered as soon as practicable, the court is to take into account whether the offender had a reasonable opportunity to obtain legal advice and give instructions to a legal representative: s 25D(6). In Stubbings v R [2023] NSWCCA 69, the Court held that this evaluative assessment is made from the offender’s point of view, taking into account the time period which, viewed objectively, is appropriate or suitable in the circumstances of the particular case to obtain legal advice and give instructions: [51].

Section 25E provides for discounts where a guilty plea offer is made for a different offence but refused. The relevant discounts are set out in s 25E(3) and are available if the offender’s offer to plead guilty to a different offence was recorded in a negotiations document, was for an offence that was not “the subject of the proceedings”, was not accepted by the prosecutor, and:

The discounts prescribed in s 25E(3) are intended to operate as incentives to offenders to offer realistic pleas of guilty: Black v R [2022] NSWCCA 17 at [41].

A “negotiations document” is defined in s 25B to include a case conference certificate. In Ke v R [2021] NSWCCA 177, the Court concluded it was unfair the applicant’s sentence was discounted by 10%, and not 25%, following her guilty plea in the District Court to an offence of recklessly deal with proceeds of crime. She had offered to plead guilty to that offence before being committed for trial, but it had been rejected, and the offer was not recorded in the case conference certificate filed on committal as required by s 75 Criminal Procedure Act 1986. Justice Bellew (Adamson J agreeing; see also Brereton JA at [63] to similar effect) held that the phrase “an offer recorded in a negotiations document” in s 25E(2)(a) should be construed as meaning “an offer which was recorded or which was required to be recorded in a negotiations document” (emphasis added): [339]. His Honour said, at [338], that accepting any other interpretation would:

The phrase “the offence the subject of the proceedings” in s 25E(1)(b), (2)(b) was considered in Black v R. The Court concluded it was clear only one offence, the principal offence, was intended to be the subject of the proceedings, and it was irrelevant that, for the purposes of the charge certificate, multiple offences may be “the subject of the proceedings”: [30]–[36]. Denying a discount to an offender who had offered a realistic guilty plea to an alternative charge, merely because it was specified in either the charge certificate or case conference certificate, undermines the purpose for which the reduction was prescribed, and was potentially unfair: [41].

Despite the mandatory terms of s 25D(1), s 25F provides the court can refuse to give a discount or a reduced discount if:

If a case conference certificate was filed, the prosecutor cannot submit that no discount should be given unless the defence was notified of the prosecution’s intention to do so either at or before the conference: s 25F(3).

In R v Thomson and Houlton (2000) 49 NSWLR 383 Spigelman CJ (Wood CJ at CL, Foster AJA, Grove and James JJ agreeing) set out the following guideline at [160]:

The range of discount referred to in R v Thomson and Houlton is a guideline only; it creates no presumption or entitlement to a particular discount in any given situation: R v Scott [2003] NSWCCA 286 at [28]; cited in Sahyoun v R [2020] NSWCCA 87 at [54] (and the cases cited there).

Where a plea reflects a “recognition of the inevitable”, it may qualify the extent of genuine contrition, but not the utilitarian value of the guilty plea: Facenfield v R [2021] NSWCCA 128 at [41]; R v Thomson and Houlton at [136].

In R v Borkowski [2009] NSWCCA 102, Howie J (McClellan CJ at CL and Simpson J agreeing) at [32] summarised the following “principles of general application” when a sentence is discounted for a guilty plea:

The guideline encourages transparency in decision-making and favours expressly quantifying the discount (often expressed as a percentage reduction in the otherwise appropriate sentence) when the court takes a guilty plea into account in sentencing: R v Thomson and Houlton (2000) 49 NSWLR 383.

In R v Lawrence [2005] NSWCCA 91, Spigelman CJ (Grove and Bell JJ agreeing) said at [15] that the reason for issuing the guideline:

Cited in Wong v R [2018] NSWCCA 263 at [43]; Murray v R [2017] NSWCCA 262; Edwards v R [2017] NSWCCA 160; amongst other decisions).

Although quantification of the discount is preferable, a failure to do so does not by itself establish error: R v Simpson (2001) 53 NSWLR 704 at [82]–[83]; R v DF [2005] NSWCCA 259 at [15]; R v Henare [2005] NSWCCA 366 at [26].

Whether a failure to explicitly state that a guilty plea has been taken into account indicates it was not given weight depends on the circumstances of the particular case and the content of the reasons: Woodward v R [2014] NSWCCA 205 at [6]; cited in Zhang v R [2018] NSWCCA 82 at [51]. Where there is a real possibility the plea was not properly considered, failure to refer to the issue in the judgment should be treated as a material error: Lee v R [2016] NSWCCA 146 at [37].

See also Zhang v R [2018] NSWCCA 82 at [51 and Borri v R [2023] NSWCCA 166 at [36]–[45].

In R v Sharma (2002) 54 NSWLR 300 (five-judge bench), the Court held a proper construction of s 22 requires the court to take into account the objective utilitarian value of the plea, even if there is no subjective intention to facilitate the administration of justice: [62]. The Court said, however, viewed objectively, there will always be actual, as distinct from intended, facilitation of the administration of justice by reason of “the fact” of the plea. The use of the word “must” and the reference to “the fact” of the plea in s 22, strongly suggest Parliament was not concerned only with subjective elements, but the actual facilitation of the administration of justice: [52]. The Court was responding to the High Court majority’s decision in Cameron v The Queen (2002) 209 CLR 339 that s 22A was a subjective test, and the Court indicated it was not applicable in NSW: [67]–[68].

Therefore, a court must take the plea into account even if there is no subjective intention to “facilitate the administration of justice”. The principles outlined in R v Thomson and Houlton regarding the weight to be given to the utilitarian value of the plea for saving the expense of a “contested hearing”, must therefore be given their full force.

The Court also held there was nothing in the Act that expressly or implicitly referred to the common law rule that a person should not be penalised for exercising their right to trial. While the Court did not doubt the application of this principle in NSW, it was not a principle that must be invoked to construe s 22 restrictively, in the absence of any indication to the contrary: [65].

In Droudis v R, the Court found the sentencing judge properly considered the offender was entitled to credit under s 22A for facilitating the efficient conduct of the judge-alone trial by finding the co-operation envisaged by s 22A extended to admissions, disclosures made before or during the trial and limiting the facts in issue: [50]–[51], [99]–[100]. In R v Doff [2005] NSWCCA 119, making extensive admissions and refraining from dilatory and technical objections of no merit so as to leave a single issue of substance for the jury showed a willingness by the offender to facilitate the course of justice so as to be taken into account on sentence: [58(c)]; see also Britton v R at [151].

In Menzies v R [2024] NSWCCA 248, the offender was entitled to some benefit under s 22A by agreeing to certain facts, but the benefit was limited because proof of the limited admitted facts would have been undemanding for the Crown and, in any event, the assistance was offset by the manner in which he chose to cross-examine a key Crown witness at trial: at [43].

In Christov v R [2009] NSWCCA 168, the Court accepted an election for a judge-alone trial may contribute to the utilitarian value of the manner in which a trial is conducted as it can enable the issues to be limited and save court time: [68]–[69]. However, s 22A is a discretionary provision, and a judge-alone trial does not inevitably, or necessarily, result in efficiencies or savings: Dukagjini v R at [13]–[14], [18], [20], [25].

In BAP v R, the Court observed that “super call-overs” are a highly effective way of managing the high volume of work in the District Court by reducing the matters that proceed to trial and, in an appropriate case, the resolution of a matter at a super call-over may demonstrate an offender’s facilitation of the administration of justice over and beyond the utilitarian value of the plea: [61]. The extent to which s 22A might be called in aid where a plea of guilty is entered during a “super call-over” warranting the imposition of a lesser penalty beyond the discount mandated by s 25D will depend on the facts and circumstances of a particular case: Sampson v R at [122]; BAP v R at [61].

Assistance is a matter of mitigation and the offender bears the onus of proof, on the balance of probabilities, of establishing that assistance has been given and a discount should follow: Irwin v R [2021] NSWCCA 172 at [84] citing R v SS [2021] NSWCCA 56. It is incumbent on the offender to establish precisely what information or assistance has been provided: Ahmad v R [2021] NSWCCA 30 at [36]. However, the Crown has an obligation to assist the offender discharge this burden: R v Cartwright (1989) 17 NSWLR 243 at 254–255; R v Bourchas [2002] NSWCCA 373 at [99]; see also R v Gallagher at 232. In such cases, the Crown is more the agent of the public interest and must act fairly towards the offender: R v Bourchas at [93].

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 court the extent of their assistance for the purpose of mitigation. When the offender’s statement is tendered it is incumbent on the parties to identify for the 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. 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 [2019] NSWCCA 236 at [61] applying the principles in R v Bourchas at [99]. See further Offender’s induced statement cannot be used adversely below.

Commonly, the Crown and the offender put forward the argument in favour of leniency being extended to an offender who has cooperated with authorities so, usually, no opposing or qualifying point of view is put forward. In such cases, the judge needs to take special care, and be astute to ensure the information concerning assistance is accurate, reliable, and complete: R v Gallagher at 232; see also R v Fisk (unrep, 21/7/1998, NSWCCA).

Notwithstanding, an inquiry relating to the nature and quality of the assistance should be dealt with in a broad and general way without descending into minute detail as it would subvert the benefit otherwise afforded to the public interest for the judge to have to do otherwise: R v Cartwright 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).

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 as to the evidence and sentencing remarks.

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 offender 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 Jones (a pseudonym) v R [2021] NSWCCA 225 in which HT v The Queen was applied, and [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 those circumstances, 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: [56]; cited in Darren Brown v R (No 2) [2019] NSWCCA 69 at [33]. If the parties are of the view that the court should use a pseudonym where assistance has been provided, they should make an application for the court to do so, which may be considered on its merits and determined, with the court implementing the conclusion in the publication of the sentencing remarks: Darren Brown v R (No 2) at [33].

An induced statement admitted in sentence proceedings cannot be used against an offender: R v Bourchas at [99].

In R v Bourchas, the offender entered a guilty plea at the earliest opportunity and provided significant assistance to 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 it into account when sentencing the offender, including information unfavourable to him, which was not otherwise in evidence.

The Court held the judge erred by admitting the offender’s statement and taking it into account otherwise than as evidence of his assistance to authorities: [100]. Giles JA (Levine and Sperling JJ agreeing), at [99], summarised his findings as follows:

See also JMS v R [2010] NSWCCA 229 at [29]; Govindaraju v R [2011] NSWCCA 55 at [66]; Macallister (a pseudonym) v R at [53]; Neil Harris (a pseudonym) v R at [61].

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 [19]; see also [10-620] Contrition and [11-110] Section 21A(3)(i) — remorse shown by the offender. In R v SS, although the offender was not entitled to a discount for assistance, his admission supported a finding of genuine remorse: [86].

Where a discount has been allowed for assistance and the Crown appeals the sentence, the issue on appeal is not whether the sentence is “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.

The application of s 23 when combined with a discount for a guilty plea has been a source of contention. This is particularly so because s 23(4) does not prescribe a method or manner in which the discounting is to be achieved: R v Ehrlich [2012] NSWCCA 38 at [11]; Hamzy v R [2014] NSWCCA 223 at [72]. It is also important to bear in mind that the authorities on this issue (to the extent they address indictable matters) largely pre-date the Early Appropriate Guilty Plea mandatory discount scheme.

Generally, appeal courts have endorsed a single, combined figure for discounts for assistance and a guilty plea: Buckley v R [2021] NSWCCA 6 at [85]; Z v R [2014] NSWCCA 323 at [27]; SZ v R [2007] NSWCCA 19 at [1]; [3]; [53]; R v El Hani [2004] NSWCCA 162 at [69]. To comply with s 23(4), a court is further required to quantify the discrete discounts making up that composite figure: LB v R [2013] NSWCCA 70 at [44]; see also [9-260].

Chief Justice Gleeson (Meagher JA; Hunt J agreeing) said in R v Gallagher at 230:

As Basten JA observed in R v Ehrlich, although Gleeson CJ’s remarks are qualified by s 23, their “tenor is not diminished”: [7]. It is not helpful to speak of a level of discount as being generally available as 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: [6]; Hamzy v R at [74]. 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 at [39]. In R v Z [2006] NSWCCA 342, Beazley JA (Howie J agreeing; Adams J dissenting) said at [88]:

In Buckley v R at [1]; [87] and McKinley v R [2022] NSWCCA 14 at [48]–[50], the Court affirmed these views. In McKinley v R, the Court observed that cases such as R v Sukkar [2006] NSWCCA 92, SZ v R and FS v R [2009] NSWCCA 301, where a certain level of discount was said to be inappropriate in certain circumstances, “probably did not withstand later authority criticising an arithmetic approach to sentencing”: [48]–[49]; see also R v Hopkinson [2022] NSWCCA 80 at [152]–[153], although in that case the Court also indicated in its reasons, the previously accepted limits for a combined discount.

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: [11].

Notwithstanding, the following certain general propositions have been previously followed in relation to the appropriate quantum for combined discounts:

Although courts continue to refer to these general propositions on occasion, arguably, they should not be understood as a rigid mathematical rule but merely an expression of the requirement that the sentence, after applying any discount, must not be unreasonably disproportionate to the nature and circumstances of the offence in accordance with s 23(3): see R v Hopkinson at [155]; RA v R [2024] NSWCCA 149 at [144], [146]; Buckley v R [2021] NSWCCA 6 at [1] (McCallum JA); Rodriego (a pseudonym) v R at [67] (Bellew J); see [9-250] above.

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 [9-140] and Combining the plea with other factors at [9-170].

In Z v R [2014] NSWCCA 323, in circumstances where the offender was found guilty after trial, the Court held that the sentencing judge erred in purporting to follow SZ v R to the effect that a discount for assistance alone should not normally exceed 25%: [29]–[30]. 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”: [34].

It is inappropriate to apply a discount for assistance wholly to the non-parole period as it 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].

When the Court imposes an aggregate sentence, the discount must be applied to each indicative sentence, not the aggregate sentence: TL v R [2017] NSWCCA 308 at [102]–[103]; Elsaj v R [2017] NSWCCA 124 at [56]; PG v R [2017] NSWCCA 179 at [71]–[76]; Berryman v R [2017] NSWCCA 297 at [29]; see also AC v R [2023] NSWCCA 133 at [67]. However, in Davies v R [2019] NSWCCA 45, the Court held it was entirely appropriate for the sentencing judge to apply an across-the-board discount in the circumstances, where there was no or little information about the plea negotiations for each offence and the pleas were eventually entered at the same time: [47]; see also [7-507] Settled propositions concerning s 53A.

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 [2013] NSWCCA 341 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: [48].

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 (Tobias JA and Buddin J agreeing) 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 offender gave an undertaking to give evidence as a Crown witness in accordance with an earlier police statement. Although he attended court and gave evidence, the complete failure to give evidence in accordance with his statement meant he breached the undertaking: [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: [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 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:

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 offenders failed to comply with their undertakings because the authorities had failed to provide reasonable protection for them. In R v El-Sayed (2003) 57 NSWLR 659 at [32]–[35], Simpson J said of cases where threats have been made:

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].

In R v Shahrouk, the Court acknowledged there has been tension in the authorities about whether a sentence should be adjusted only to reflect the discount for future assistance, or whether the whole of the discount, particularly any discount for past assistance, can be reconsidered: [42]. While earlier cases have held the power under s 5DA does not allow the court to review the sentence generally (see R v Waqa [2004] NSWCCA 405 at [26]; R v Douar [2007] NSWCCA 123 at [32]), other cases have suggested that, 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 [60]–[64], distinguishing R v Waqa. 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]. In that case it was unnecessary for the Court to finally determine the issue: [44].

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 at [24]–[27]; Douar v R [2005] NSWCCA 455 at [126].