Power to reduce penalties for pre-trial disclosure

The degree of pre-trial disclosure by the defence (as provided by s 22A) is a mitigating factor to be taken into account in determining the appropriate sentence for an offence: s 21A(3)(l) Crimes (Sentencing Procedure) Act 1999.

[11-910] Section 22A

Section 22A Crimes (Sentencing Procedure) Act 1999 provides as follows:

(1) 

A court may impose a lesser penalty than it would otherwise impose on an offender who was tried on indictment having regard to the degree to which the administration of justice has been facilitated by the defence (whether by disclosures made pre-trial or during the trial or otherwise).

(2) 

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.

In R v Way (2004) 60 NSWLR 168, Spigelman CJ at [45] said of a previous form of the provision:

The discretion under ss 22A and 23 is subject to a qualification, which is not expressly mentioned in s 22, namely that any lesser penalty that is imposed “must not be unreasonably disproportionate to the nature and circumstances of the offence.”

In R v Janceski [2005] NSWCCA 288, the sentencing judge had taken into account what he described as “significant” admissions made by the respondent when interviewed by the police. However, Hunt AJA at [36] observed that apart from the respondent admitting that he was the driver of the vehicle, the whole of the Crown’s case was put in issue. Reference was made to s 22A(2) and the need to ensure that any reduction under this head of mitigation should not be disproportionate to the nature and circumstances of the offence.

In R v Christoff (2003) 140 A Crim R 45, the court held:

… the matters in respect of which the appellant made admissions namely, that he was the driver of the vehicle, that the vehicle was involved in an impact and that the impact occasioned the death were beyond dispute and did not amount to pre-trial disclosures.

The question arises as to whether, under the terms of s 21A(3)(l), it will be necessary for the offender to evince a willingness to facilitate the course of justice or whether, motive apart, purely utilitarian considerations are sufficient to attract the discount for pre-trial disclosure.