Guilty pleas

[11-500] Introduction

Last reviewed: March 2024

Until the introduction of Pt 3, Div 1A Crimes (Sentencing Procedure) Act 1999 on 30 April 2018, the common law recognised that sentencing judges had a broad discretion to discount a sentence for the utilitarian value of a plea of guilty.

In Siganto v The Queen (1998) 194 CLR 656 at [22], Gleeson CJ, Gummow, Hayne and Callinan JJ said:

a plea of guilty is ordinarily a matter to be taken into account in mitigation; first, because it is usually evidence of some remorse on the part of the offender, and second, on the pragmatic ground that the community is spared the expense of a contested trial. The extent of the mitigation may vary depending on the circumstances of the case.

A “sentencing discount” is a reduction in the otherwise appropriate sentence by a quantifiable amount due to a specific policy consideration — in the case of a guilty plea — a utilitarian benefit: R v Borkowski [2009] NSWCCA 102. It is applied after the otherwise appropriate sentence has been determined: at [32]–[33].

In the Second Reading Speech to the Justice Legislation Amendment (Committals and Guilty Pleas) Bill, the Attorney General said Pt 3, Div 1A was introduced to replace “the existing common law sentence discount for the utilitarian value of a guilty plea” for offences dealt with on indictment: NSW Legislative Assembly, Parliamentary Debates (Hansard), 11 October 2017, p 12. It is apparent from the language of ss 25A(2) and 25D(1) that the scheme is mandatory: Gurin v R [2022] NSWCCA 193 at [22].

[11-503] Impermissible to penalise offender for pleading not guilty

Last reviewed: March 2024

A court is not permitted to penalise an offender for pleading not guilty. In Siganto v The Queen at [22] it was said:

A person charged with a criminal offence is entitled to plead not guilty, and defend himself or herself, without thereby attracting the risk of the imposition of a penalty more serious than would otherwise have been imposed.

The court judges an offender for the crime, not for the defence: at [21], affirming the proposition expressed in DA Thomas, Principles of Sentencing (2nd Ed), 1979, Heinemann, London, p 50. See also Cameron v The Queen (2002) 209 CLR 339. The High Court in Siganto v The Queen at [21] also affirmed the following passage from R v Gray [1977] VR 225 at 231:

It is impermissible to increase what is a proper sentence for the offence committed, in order to mark the court’s disapproval of the accused’s having put the issues to proof or having presented a time-wasting or even scurrilous defence.

[11-504] Obligations of the court taking the plea

Last reviewed: March 2024

Where both parties to proceedings are present, s 192(2) Criminal Procedure Act 1986 provides that the court must “state the substance of the offence” to an accused and ask if they plead guilty or not guilty. The stating by the court of the substance of the offence is not of itself a condition precedent to the validity of a plea of guilty, and it is not the purpose of ss 192 and 193 that the power to convict is not enlivened unless this has occurred: Collier v Director of Public Prosecutions [2011] NSWCA 202 at [59].

The purpose of s 192(2) is to ensure that, to the knowledge of the court, an accused adequately understands the charge they are pleading to: at [53]. To ensure that an unrepresented accused understands the charges and unequivocally plead to those charges, the court must state the substance of each offence to them and take separate pleas for each: at [59].

An “accused person” is defined to include a “legal practitioner representing an accused person”: s 3. Where an accused is legally represented, the practitioner can enter a plea.

The court should, as a matter of practice, at least draw the legal representative’s attention to the Court Attendance Notice/s (CAN) and the offences stated in them. This would amount to substantial, if not exact, compliance with s 192(2): at [55], [59]. In a busy Local Court it may be highly inconvenient to individually state multiple charges suggesting that it was not the purpose of s 192(2) to invalidate pleas or convictions if that section is not complied with: at [55].

Section 193(1) Criminal Procedure Act provides that the court must convict the accused or make the order accordingly if “the accused person pleads guilty, and does not show sufficient cause why he or she should not be convicted or not have an order made against him or her”.

[11-505] Setting aside a guilty plea

Last reviewed: March 2024

Section 207 Criminal Procedure Act 1986 makes provision for the setting aside of a conviction after the withdrawal of a plea of guilty. It provides:


An accused person may, at any time after conviction or an order has been made against the accused person and before the summary proceedings are finally disposed of, apply to the court to change the accused person’s plea from guilty to not guilty and to have the conviction or order set aside.


The court may set aside the conviction or order made against the accused person and proceed to determine the matter on the basis of the plea of not guilty.

An accused seeking to withdraw a guilty plea after conviction must demonstrate a miscarriage of justice has occurred: R v Boag (unrep, 1/6/94, NSWCCA); White v R [2022] NSWCCA 241 at [58]. The authorities emphasise that the issue is one of the integrity of the plea by reference to the circumstances in which it was entered: Mao v DPP [2016] NSWSC 946 at [60] citing R v Sagiv (unrep, 30/5/96, NSWCCA); R v Van [2002] NSWCCA 148 at [48]–[50] and Wong v DPP [2005] NSWSC 129 at [16]; Brown Brothers v Pittwater Council (2015) 90 NSWLR 717 at [156]–[163] extensively reviews the case law.

An accused seeking to withdraw a guilty plea before conviction must demonstrate whether the interests of justice require it: White v R at [59]–[61], [68]–[69]; Maxwell v The Queen (1996) 184 CLR 501 at 531. The “interests of justice” test is broader than the “miscarriage of justice” test and may focus on matters beyond the integrity of the plea, although this will often remain the inquiry’s focal point: White v R at [65]. Bell CJ, Button and N Adams JJ in White v R at [65] set out the following non-exhaustive list of factors affecting the interests of justice [case references and citations omitted].

  • the circumstances in which the plea was given;

  • the nature and formality of the plea;

  • the importance of the role of trial by jury;

  • the time between entry of the plea and the application for its withdrawal;

  • any prejudice to the Crown from the plea’s withdrawal;

  • the complexity of the charged offence’s elements;

  • whether the accused knew all of the relevant facts intended to be relied upon by the Crown;

  • the nature and extent of legal advice to the accused before entering the plea;

  • the seriousness of the alleged offending and likely penalty;

  • the accused’s subjective circumstances;

  • any intellectual or cognitive impairment suffered by the accused;

  • any reason to suppose that the accused was not thoroughly aware of what they were doing;

  • any extraneous factors bearing on the plea when made, including threats, fraud or other impropriety;

  • any imprudent and inappropriate advice given to the accused affecting their plea;

  • the accused’s explanation for seeking to withdraw the plea;

  • any consequences to victims, witnesses or third parties that might arise from the plea’s withdrawal; and

  • whether there is a real question about the accused’s guilt.

See also Johnson J’s summary of the principles in appellate decisions governing an application to withdraw a plea of guilty in R v Wilkinson (No 4) [2009] NSWSC 323 at [41]–[48].

An application to withdraw a plea of guilty in the Local Court cannot be treated on appeal as an application for an annulment of a conviction and the District Court will fall into jurisdictional error by doing so: DPP v Arab [2009] NSWCA 75 at [39].

[11-510] Summary of the two guilty plea discount schemes

Last reviewed: March 2024

There are two distinct guilty plea discount schemes provided for in the Crimes (Sentencing Procedure) Act 1999:


A mandatory sentencing discount scheme contained in Pt 3, Div 1A which applies to an offence dealt with on indictment: see [11-515].


Section 22 concerns offences dealt with summarily or an offence dealt with on indictment to which Pt 3, Div 1A does not apply: see [11-520] and [11-525].

A guilty plea is a factor to be taken into account in mitigation of a sentence under s 21A(3)(k) of the Act. An offer to plead guilty to a different offence, where the offer is not accepted and the offender is subsequently found guilty of that offence, or a reasonably equivalent offence, is a mitigating factor under s 21A(3)(n). See Section 21A — aggravating and mitigating factors at [11-000].

[11-515] Guilty plea discounts for offences dealt with on indictment

Last reviewed: March 2024

Part 3, Div 1A of the Crimes (Sentencing Procedure) Act 1999 provides for a scheme of fixed sentencing discounts for the utilitarian value of a guilty plea for offences dealt with on indictment.

The provisions limit the discretion of a sentencing judge with respect to the quantum of the discount for a guilty plea after an offender has been committed for trial. A maximum discount of 25% is only available if the plea was entered in the Local Court.

The scheme does not apply to:

  • Commonwealth offences: s 25A(1)(a)

  • offences committed by persons under 18 years at the time of the offence if they were under 21 years when the relevant proceedings commenced: s 25A(1)(b)

  • a sentence of life imprisonment: s 25F(9)

  • offences dealt with summarily or an offence dealt with on indictment to which Pt 3, Div 1A does not apply: s 22(5).

An offender bears the onus of proving, on the balance of probabilities, that there are grounds for the sentencing discount: s 25F(5).

The court must indicate how the sentence imposed was calculated where a discount is applied, or give reasons for reducing or refusing to apply the discount: s 25F(7). Failure to comply with Pt 3, Div 1A does not invalidate the sentence: s 25F(8).

Mandatory discounts

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 sentencing 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) Crimes (Sentencing Procedure Act)) and/or a willingness to facilitate the administration of justice (s 22A Crimes (Sentencing Procedure Act)) are conceptually distinct and must be considered separately: Doyle v R at [16]–[19].

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

  • 25%, if the guilty plea was accepted in committal proceedings: s 25D(2)(a)

  • 10%, if the offender pleaded guilty at least 14 days before “the first day of trial of an offender” (defined in s 25C(1)), or at the first available opportunity after complying with the pre-trial notice requirements: s 25D(2)(b)

  • 5%, in any other case: s 25D(2)(c).

The “first day of the trial of an offender” is defined in s 25C(1) as:

the first day fixed for the trial of the offender or, if that day is vacated, the next day fixed for the trial that is not vacated.

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% reduction is lost: at [29].

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 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). However, the offender is not entitled to the 25% discount if:

  • the elements of the new offence are substantially the same as those of the offence in the original indictment (and the penalty is the same or less), or

  • the offender previously refused an offer to plead guilty to the new offence made by the prosecutor which was recorded in a negotiations document: s 25D(4).

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 and whose 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 Stubbings v R [2023] NSWCCA 69, the court found the offender did not plead guilty as soon as practicable after he was found fit: [56].

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, 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: [51].

Discounts when plea offer to different offences refused when made

Section 25E provides for discounts where a guilty plea 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” and was not accepted by the prosecutor:

  • and the offender was subsequently found guilty of the different offence or a reasonably equivalent offence (s 25E(1)), or

  • was accepted by the prosecutor after committal and the offender pleaded guilty to the different offence at the first available opportunity able to be obtained by the offender (s 25E(2)).

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 that the applicant’s sentence was discounted by 10%, and not 25%, following her guilty plea in the District Court to an offence of dealing with the proceeds of crime being reckless to that fact (Crimes Act 1900, s 193B(3)). She had offered to plead guilty to that offence before being committed for trial but it had been rejected. Nor was it recorded in the case conference certificate filed on committal as required by s 75 Criminal Procedure Act 1986. Bellew J (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): at [339]. His Honour said, at [338], that accepting any other interpretation would:

…bring about a result which … could not possibly have been intended by the Parliament when enacting the scheme. Specifically … it could not possibly have been the Parliament’s intention, in enacting s 25E, to bring about a result whereby an offender was deprived of the benefit of a significant discount on [their] sentence as the result of both parties to the proceedings simply overlooking a requirement to record the undisputed fact of a previous offer to plead guilty. That is particularly so in circumstances where the clear intention of the Parliament, reflected in s 75(1)(b), was that any offer to plead guilty to (inter alia) a different offence be recorded in the case conference certificate.

The phrase “the offence the subject of the proceedings”, in s 25E(1)(b) and s 25E(2)(b), was considered in Black v R. Simpson AJA (Ierace and Dhanji JJ agreeing) concluded that it was clear that only one offence, the principal offence, was intended to be the subject of the proceedings, and that it was irrelevant that, for the purposes of the charge certificate, multiple offences may be “the subject of the proceedings”: [30]–[36]. This, her Honour observed, produced a fair result: at [38]. Denying a discount to an offender who had offered a realistic plea of guilty 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: at [41].

Not allowing or reducing the discount

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

  • the offender’s culpability is so extreme the community interest in retribution, punishment, community protection and deterrence warrants no, or a reduced, discount: s 25F(2), or

  • the utilitarian value of the plea was eroded by a factual dispute which was not determined in the offender’s favour: s 25F(4).

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).

[11-520] Guilty plea discounts for offences dealt with summarily and exceptions to Pt 3 Div 1A

Last reviewed: March 2024

Part 3, Div 1A Crimes (Sentencing Procedure Act 1999 limits the operation of s 22 to offences dealt with summarily and “to a sentence for an offence dealt with on indictment to which Div 1A does not apply”: s 22(5). Section 22(1) provides that a court may impose a lesser penalty after considering:


the fact of the guilty plea,


the timing of the plea or indication of intention to plead, and


the circumstances in which the offender indicated an intention to plead guilty.

Section 22(1A) provides that the lesser penalty imposed must not be unreasonably disproportionate to the nature and circumstances of the offence. It reflects the common law on the subject.

The “circumstances” a court can take into account for the purposes of s 22(1)(c) can include those beyond the offender’s control such as number and type of charges, the fitness of the offender to plead, offers to plead which are initially rejected but later accepted, or where the prosecution adds to the charges and indicates it will amend the charge at a later time to specify a more appropriate offence.

Guideline for guilty plea discount

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]:


A sentencing judge should explicitly state that a plea of guilty has been taken into account. Failure to do so will generally be taken to indicate that the plea was not given weight.


Sentencing judges are encouraged to quantify the effect of the plea on the sentence insofar as they believe it appropriate to do so. This effect can encompass any or all of the matters to which the plea may be relevant — contrition, witness vulnerability and utilitarian value — but particular encouragement is given to the quantification of the last mentioned matter. Where other matters are regarded as appropriate to be quantified in a particular case, e.g. assistance to authorities, a single combined quantification will often be appropriate.


The utilitarian value of a plea to the criminal justice system should generally be assessed in the range of 10–25 per cent discount on sentence. The primary consideration determining where in the range a particular case should fall, is the timing of the plea. What is to be regarded as an early plea will vary according to the circumstances of the case and is a matter for determination by the sentencing judge.

[Note: The top of the range would be expected to be restricted to pleas at the earliest possible opportunity and should not be given, save in an exceptional case, after a matter has been set down for trial. A discount towards the bottom of the range is appropriate for late pleas, for example, those entered on the date fixed for trial, unless there are particular benefits arising from the prospective length and complexity of the trial: at [155]. The complexity of the issues about which evidence will have to be gathered and adduced will affect the value of the plea. The greater the difficulty of assembling the relevant evidence and the greater the length and complexity of the trial, the greater the utilitarian value of a plea: at [154]. Rare cases involving exceptional complexity and trial duration may justify a higher discount: at [156]. A discount within the range specified will not mean that a trial judge’s exercise of discretion cannot be subject to appellate review: at [158].]


In some cases the plea, in combination with other relevant factors, will change the nature of the sentence imposed. In some cases a plea will not lead to any discount.

[Note: There are circumstances in which the protection of the public requires a long sentence to be imposed such that no discount for the plea is appropriate: at [157].]

The range of discount referred to in R v Thomson and Houlton is a guideline only. In a given situation it creates no presumption or entitlement to a particular discount: R v Scott [2003] NSWCCA 286 at [28]; R v Newman [2004] NSWCCA 113 at [12] and R v Araya [2005] NSWCCA 283 at [44].

The R v Borkowski principles

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 discount for the utilitarian value of the pleas will be determined largely by the timing of the plea so that the earlier the plea the greater discount: Thomson at [154]; Forbes [2005] NSWCCA 377 at [116].


Some allowance may be made in determining the discount where the trial would be particularly complicated or lengthy: Thomson at [154].


The utilitarian discount does not reflect any other consideration arising from the plea, such as saving witnesses from giving evidence but this is relevant to remorse: Thomson at [119] to [123]; nor is it affected by post-offending conduct: Perry [2006] NSWCCA 351.


The utilitarian discount does not take into account the strength of the prosecution case: Sutton [2004] NSWCCA 225.


There is to be no component in the discount for remorse nor is there to be a separate quantified discount for remorse: MAK and MSK [2006] NSWCCA 381; Kite [2009] NSWCCA 12 or for the “Ellis discount”; Lewins [2007] NSWCCA 189; S [2008] NSWCCA 186 [Principle 5 no longer applies: see below].


Where there are multiple offences and pleas at different times, the utilitarian value of the plea should be separately considered for each offence: SY [2003] NSWCCA 291.


There may be offences that are so serious that no discount should be given: Thomson at [158]; Kalache [2000] NSWCCA 2; where the protection of the public requires a longer sentence: El-Andouri [2004] NSWCCA 178.


Generally the reason for the delay in the plea is irrelevant because, if it is not forthcoming, the utilitarian value is reduced: Stambolis [2006] NSWCCA 56; Giac [2008] NSWCCA 280.


The utilitarian value of a delayed plea is less and consequently the discount is reduced even where there has been a plea bargain: Dib [2003] NSWCCA 117; Ahmad [2006] NSWCCA 177; or where the offender is waiting to see what charges are ultimately brought by the Crown: Sullivan and Skillin [2009] (sic [2008]) NSWCCA 296; or the offender has delayed the plea to obtain some forensic advantage: Stambolis [2006] NSWCCA 56; Saad [2007] NSWCCA 98, such as having matters put on a Form 1: Chiekh and Hoete (sic Cheikh) [2004] NSWCCA 448.


An offer of a plea that is rejected by the Crown but is consistent with a jury verdict after trial can result in a discount even though there is no utilitarian value: Oinonen [1999] NSWCCA 310; Johnson [2003] NSWCCA 129.


The discount can result in a different type of sentence but the resulting sentence should not again be reduced by reason of the discount: Lo [2003] NSWCCA 313.


The amount of the discount does not depend upon the administrative arrangements or any practice in a particular court or by a particular judge for the management of trials or otherwise.

The trial judge erred in R v Borkowski by giving the offender a 25% utilitarian discount for a guilty plea taken at first arraignment when the discount should not have been more than 15%.

Bathurst CJ in R v AB [2011] NSWCCA 229 at [3], said courts should “... generally continue to follow the approach in R v Borkowski … the principles have to be applied by reference to the particular circumstances in any case”.

The discount for a plea is not fixed and may be eroded as a result of the manner in which the sentence proceedings are conducted: per Johnson J at [33]; Bathurst CJ at [2] agreeing. AB was given a “generous” (at [24]) 25% discount for a guilty plea entered in the Local Court following a significant dispute on sentence which was resolved against him.

The position in relation to principle 5 in R v Borkowski is now that reflected in Panetta v R [2016] NSWCCA 85 that any Ellis discount must be numerically quantified. See Voluntary disclosure of unknown guilt at [12-218].

As to principle 6, when an aggregate sentence is imposed a separate discount must be applied to each indicative sentence: Bao v R [2016] NSWCCA 16 at [41], [44]. See Aggregate sentences below.

As to principle 7, a discount for the guilty plea was withheld in Milat v R [2014] NSWCCA 29 at [92] on the basis of the extreme circumstances of the murder. The range of cases where no discount may be given extends to those where the sentence imposed is less than the statutory maximum: Milat v R at [72], [75]. The plurality in R v El-Andouri [2004] NSWCCA 178 at [34] purported to confine the circumstances in which a plea will not warrant any discount to cases where the protection of the public requires a long sentence, or for which the maximum sentence is appropriate notwithstanding the plea. However, this statement is merely a gloss on the guideline judgment in R v Thomson and Houlton (2000) 49 NSWLR 383 and has the potential to misrepresent what the Chief Justice actually said: Milat v R at [81], [83]. Spigelman CJ did not define a closed category of cases but merely acknowledged there will be cases where the discount is withheld: Milat v R at [84].

Principle 8 in R v Borkowski, generally applies subject to Bathurst CJ’s statement in R v AB at [3] that it is permissible for a court in specific instances to have regard to the reason for the delay in the guilty plea. In Shine v R [2016] NSWCCA 149, the applicant at no time denied committing the offence but awaited the outcome of a psychiatric evaluation before entering a plea: at [95]. A similar situation occurred in Haines v R [2016] NSWCCA 90. In both cases a utilitarian discount of 25% was warranted in the circumstances notwithstanding the timing of the plea: Shine v R at [95]; Haines v R at [33].

As to principle 9 in R v Borkowski, where the delay in the guilty plea is caused by the offender’s legal representative and is not the fault of the offender, its utilitarian value is not undermined: Atkinson v R [2014] NSWCCA 262. The whole history of the matter can be considered in assessing the utilitarian value of the plea: Samuel v R [2017] NSWCCA 239 at [60]. In Samuel v R, the 8-year delay between the offender absconding (after being charged) and his guilty plea in the Local Court, meant his plea could not be characterised as “early”. The delay caused unnecessary expenditure of resources and a loss of efficiency for the criminal justice system: at [57]–[59].


The guideline encouraged 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 said at [15] that the reason for issuing the guideline:

included the need to ensure that participants in the New South Wales criminal justice system had no reason to be sceptical about whether or not the benefits of a guilty plea were in fact made available to accused.

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]. 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].

Aggregate sentences

Where a court imposes an aggregate sentence, the discount for the guilty plea must be stated for each indicative sentence, not the aggregate sentence: 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]. 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 of that case where there was no or little information about the plea negotiations for each offence and the pleas were eventually entered at the same time: at [47].

Willingness to facilitate the course of justice

In Cameron v The Queen (2002) 209 CLR 339, the majority of the High Court refined the test for taking into account a plea of guilty: at [12]. In their joint judgment, Gaudron, Gummow, Callinan JJ said at [14]:

Reconciliation of the requirement that a person not be penalised for pleading not guilty with the rule that a plea of guilty may be taken into account in mitigation requires that the rationale for that rule, so far as it depends on factors other than remorse and acceptance of responsibility, be expressed in terms of willingness to facilitate the course of justice and not on the basis that the plea has saved the community the expense of a contested hearing.

According to the majority, a plea of guilty may be taken into account in mitigation of sentence if it evidences a willingness on the part of the offender to facilitate the course of justice and not simply because the plea saves the time and expense of those involved in the administration of criminal justice: at [19]. This is a subjective test and requires more than simply deciding whether economic benefits flow from the plea.

In R v Sharma (2002) 54 NSWLR 300 the court held that the reasoning of the majority in Cameron v The Queen concerning the application of general sentencing principles, in the context of a WA statute, was not applicable in NSW because the common law principles enunciated there had been modified by statute: at [38]. The court found that the proper construction of s 22 Crimes (Sentencing Procedure) Act 1999 permits the sentencer to take into account the objective utilitarian value of the plea: at [62]. Spigelman CJ (with whom Mason P, Barr, Bell and McClellan JJ agreed) said at [52]:

The mandatory language of s 22 must be followed whether or not by doing so the court can be seen to “discriminate”, in the sense that word was used in the joint judgment in Cameron … The court must take the plea into account even if there is no subjective intention to facilitate the administration of justice. 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, strongly suggest that the Parliament was not concerned only with subjective elements. The actual facilitation of the administration of justice was to be regarded as relevant by sentencing judges.

Thus a court must take the plea into account even if there is no subjective intention to “facilitate the administration of justice”, as explained in Cameron v The Queen. The principles outlined in R v Thomson and Houlton (2000) 29 NSWLR 383, 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 that there was nothing in the NSW Act that expressly or implicitly referred to the common law requirement of “equal justice”. 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: R v Sharma (2002) 54 NSWLR 300 at [65]. There was nothing in Cameron v The Queen that called into question the ability of a State Parliament to adopt a form of differentiation which may be, or appear to be, “discriminatory” in the sense that the words were used in Cameron v The Queen: at [67].

[11-525] Whether guilty plea discount given for Form 1 offences

Last reviewed: March 2024

There is no statutory or common law requirement to take into account that an offender pleaded guilty to an offence if it is being taken into account on a Form 1: Gordon v R [2018] NSWCCA 54 at [95]. Requiring a court to consider the procedural history of Form 1 offences when assessing the discount for the guilty plea for the primary offence would add significant complexity to the sentencing task: at [96]–[98].

See Taking further offences into account (Form 1 offences) at [13-200]ff.

[11-530] Combining the plea with other factors

Last reviewed: March 2024

Care needs to be taken when there are a number of grounds for extending leniency, such as a plea of guilty with a measure of remorse, as well as the offender’s assistance to authorities and promise of future assistance.

Discounts for assistance and a guilty plea should ordinarily be a single, combined figure: SZ v R [2007] NSWCCA 19; R v El Hani [2004] NSWCCA 162 at [69]; R v Thomson and Houlton (2000) 49 NSWLR 383 at [160] at (ii); R v Gallagher (1991) 23 NSWLR 220 at 228.

The court held in SZ v R at [9] that, since the decision of R v Thomson and Houlton, where the utilitarian value of the plea could be as high as 25%, the courts have had less scope to give a discount for assistance in cases of an early plea. A combined discount for pleas of guilty and assistance should not normally exceed 50%: at [3]. A combined discount exceeding 50% should be reserved for exceptional cases: at [53]. It would be in a rare case that a discount of more than 60% would not result in a manifestly inadequate sentence: at [11].

See Application of discount at [12-230].