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.”
Matters under s 22A can be taken into account as part of the instinctive synthesis approach to sentencing: Droudis v R [2020] NSWCCA 322 at [103]. There is no requirement to specify a percentage discount or quantify mathematically the extent by which a sentence has been reduced. This is consistent with the matters referred to in ss 22, 22A and 23 of the Act being treated as mitigating factors in s 21A(3)(k), (l) and (m): at [104]. In Droudis v R, the court concluded the sentencing judge, who had conducted a judge-alone trial, gave proper consideration to the nature of the assistance provided by the applicant in facilitating the efficient conduct of the trial as required by s 22A and that even if he had taken this into account as a mitigating factor this would not have been an error: at [99]–[100].
In Droudis v R (No 16) [2017] NSWSC 20, the sentencing judge made some observations concerning the co-operation envisaged by s 22A which he found extended to admissions, disclosures made before or during the trial and limiting the facts in issue. All of those had occurred in that case, satisfying his Honour that the offender took steps to facilitate the administration of justice and was entitled to credit under s 22A: at [112]–[113].
Generally, in cases where the facilitation of the administration of justice makes a significant difference to the ultimate sentence, it may be appropriate to specify the penalty that would have otherwise been imposed. This provides transparency to the sentencing process and encourages an accused and their legal representatives to conduct criminal trials efficiently and expeditiously. However, a failure to do so, of itself, will not establish error: Droudis v R [2020] NSWCCA 322 at [105].