Last Updated: 15 September 2009

List of subheadings:

Crimes Act 1914 (Cth)
Discounts for guilty pleas
- Scope of s 16A(2)(g)
- Rationale
- Discount given for a guilty plea
- Other Issues
Discounts for co-operation
- Taking into account past co-operation
- Taking into account future co-operation
- Failure to co-operate in accordance with undertaking

Commentary on Discounts under the Crimes Act 1914 (Cth)

In sentencing a federal offender regard should be had to a plea of guilty and whether the offender has co-operated or undertaken to co-operate with law enforcement. Consideration of these sentencing factors may result in the court providing a 'discount' to the sentence. As Callaway J remarked in R v Duncan [1998] 3 VR 208, 214-215,

[b]oth a plea of guilty and significant assistance to the authorities usually justify some mitigation of punishment in the exercise of the wide discretion conferred on a sentencing judge. It is referred to as a "discount" to make it clear that a sentence is never increased or made more severe because an accused person puts the Crown to its proof or declines to give such assistance.

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Discounts for guilty pleas

SCOPE OF S 16A(2)(g)

Section 16A(2)(g) specifically refers the sentencing court to take into account the fact that a person has pleaded guilty. A court sentencing a person for a federal offence must, under the Crimes Act 1914 (Cth) s 16A(2)(g), take into account a plea of guilty in respect of that offence:

While courts are required to take guilty pleas into account when sentencing federal offenders, there is no further direction in the Crimes Act 1914 (Cth) as to how such a plea is to be taken into account.

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Rationale

There is some judicial controversy regarding the rationale for discounting sentences based on a plea of guilty. In Cameron v The Queen [2002] HCA 6; (2002) 209 CLR 339, the High Court considered sentencing principles relevant to pleas of guilty in reference to the Sentencing Act 1995 (WA). In the joint judgement, three judges of the High Court held the rationale for taking a guilty plea into account in mitigation is not any utilitarian benefit. Gauldron, Gummow and Callinan JJ, at [14], held the rationale:

...so far as it depends on factors other than remorse and acceptance of responsibility, [should] 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.

Justice Kirby, at [65]-[68], maintained that the purely utilitarian interests of the public form the rationale for a sentencing discount where a plea of guilty is entered.

In Western Australia, Cameron has been affirmed (see for example Harding v Moreland [2006] WASC 8; (2006) 159 A Crim R 370, [24] (Hasluck J).

In South Australia, the Court of Criminal Appeal, without having to decide the issue, favoured the view of Kirby J in Cameron that a sufficient rationale is found in the public interest based upon purely utilitarian considerations: R v Place [2002] SASC 101; (2002) 128 A Crim R 325, [78] (Doyle CJ, Prior, Lander and Martin JJ).

In New South Wales, the Court of Criminal Appeal held the joint reasoning in Cameron to not apply in New South Wales and continued to follow the "guideline judgment" of R v Thomson; R v Houlton [2000] NSWCCA 309; (2000) 49 NSWLR 383: see R v Sharma [2002] NSWCCA 142, (2002) A Crim R 238, [68] (Spigelman CJ ). In Thomson & Houlton, the Court held a distinct public interest is served by encouraging pleas of guilty for their utilitarian value.[1] Despite statements in Thomson & Houlton indicating the reasons of the Court were not applicable to Commonwealth offences, [2] the approach and general principles may be a useful guide in federal sentencing (see e.g. R v Simon [2003] NSWCCA 147, (2003) 142 A Crim R 166, [19] (Sheller JA)).

See also the federal case of R v Bugeja [2001] NSWCCA 196. Hodgson JA (with whom Greg James and Adams JJ agreed) held at [24] that:

In my opinion, although the case of R v Thomson and the guidelines set out in that case are said not to apply to Commonwealth offences, it seems clear that this is essentially because of the non participation of Commonwealth authorities in that case, and the view being taken that it was, accordingly, not appropriate to purport to set out guidelines to be applicable to all Commonwealth cases. However, in my opinion the general principles stated in that case are applicable to Commonwealth offences, and should generally be applied to Commonwealth offences [emphasis added].

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Determining the discount for a guilty plea

Section 16A(2) does not specify the discount that should be given for a guilty plea.

In Cameron, Kirby J noted at [95] that the discount awarded for a plea of guilty does not appear to vary greatly between jurisdictions. However, the extent to which there is variation is difficult to quantify given not all jurisdictions require specification of the discount granted. [3]

In Western Australia, a guilty plea will usually attract at least a 25% discount with the range being between 20% and 35%. [4] In New South Wales, Thomson & Houlton suggests that the utilitarian value of a guilty plea should generally be assessed in the range of a 10% to 25% discount. [5] In South Australia 15% to 25% is the common range for a discount for a guilty plea. [6]

Part IB does not require a court to specify the discount given for a guilty plea. [7]

In Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357, [24] the High Court confirmed that specifying the discount granted for a guilty plea does not constitute an error. However, the practice of specifying the discount given for a guilty plea varies across jurisdictions. [8]

In New South Wales, the Court in Thomson & Houlton encouraged sentencing judges to qualtify the discount insofar as they believe it appropriate in order to improve transparency and demonstrate the benefit of an early plea. [9] In South Australia, there is authority favouring the view that a sentencing judge should specify the reduction for a plea of guilty. [10] In the Northern Territory, it is preferable for a court to specify the amount of any reduction in sentence received for a guilty plea. [11]

In Western Australia, the Supreme Court has followed Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357, holding that the discount for a guilty plea need not be specified: Harding v Moreland [2006] WASC 8; (2006) 159 A Crim R 370, [61], [66] (Hasluck J). In Tasmania, the Court of Criminal Appeal has held that there is no justification for requiring a specific quantified discount in regard to a plea of guilty. [12]

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OTHER ISSUES

Part IB does not state whether the weight to be attached to a guilty plea is dependent upon the time at which the plea was entered. In Cameron, Gauldron, Gummow and Callinan JJ, at [22], indicated that the issue of whether the plea was entered at the first reasonable opportunity is a significant consideration in determining the extent to which the plea is indicative of remorse, acceptance of responsibility and willingness to facilitate the course of justice. In Thomson & Houlton, the Court at [160] adopted the following guideline:

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.

The strength of the Crown case is an irrelevant consideration in determining the utilitarian value of a guilty plea. In R v Sutton [2004] NSWCCA 225; (2004) 41 MVR 40, [12], Howie J remarked:

This court has pointed out time and time again, that the strength of the Crown case is an irrelevant factor in determining the utilitarian value of the plea of guilty. The strength of the Crown case is relevant only to the evaluation of remorse and what weight should be given to that factor in determining the appropriate sentence.

This statement has been applied to s 16A(2)(g). [13] For example, in R v Simon [2003] NSWCCA 147, the Court of Criminal Appeal held a discount of 10% for a guilty plea entered at the earliest opportunity was unreasonable and plainly unjust even though the Crown case was insurmountable. [14]

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Discounts for Co-operation

Two sections in the Crimes Act 1914 (Cth) deal with sentencing discounts for co-operation with law enforcement agencies: ss 16A(2)(h) and 21E.

• Section 16(A)(2)(h) requires the court to take into account the degree to which the person has co-operated with investigations of the offence or other offences.
  
• Section 21E concerns undertakings as to future co-operation and requires the court to specify where such a discount is given and state the sentence that would have been imposed but for that reduction. This allows the original sentence to be restored where a person fails to co-operate in accordance with an undertaking.

Where both past and future co-operation are relevant considerations, the legislative effect of ss 16A(2)(h) and 21E is that each should be dealt with separately. As the Queensland Court of Appeal held in R v Gladkowski [2000] QCA 352; (2000) 115 A Crim R 446, [12]:

A reference to "co-operation" of an offender may encompass at least three relevant matters - self-incrimination, incrimination of others up to time of sentence, and a promise or undertaking to provide further co-operation in other proceedings. The past aspects (self-incrimination and incrimination of others up to the time of sentence) are encompassed in s 16A(2)(h), and the future aspect relating to the offender's undertaking to co-operate in proceedings is encompassed in s 21E. In combination those sections require the court to take all such matters into account in the sentence which it actually imposes, but the benefit in relation to the undertaking is potentially reversible under s 21E. Apart from the manifest excess of the sentence at first instance the learned sentencing judge erred in making a declaration under s 21E that was based on both past and future co-operation. Such an order would place the applicant at risk of losing the benefit of credit which he had already earned for his co-operation as well as the benefit of credit that he might yet fail to deliver. Section 21E is concerned with giving the courts power to remove a provisional benefit granted on the basis of an undertaking in circumstances where the undertaking is not fulfilled.

See also R v Ngui [2000] VSCA 78; (2000) 111 A Crim R 593, [3].

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Taking into account past co-operation

Section 16A(2)(h) requires a court to take into account the degree to which a person has co-operated with law enforcement agencies in the past:

There is no legislative requirement for the court to specify the discount that is provided for past co-operation (compare s 21E governing future co-operation).

'Offence' means a federal offence, a State offence or a Territory offence: Crimes Act 1914 (Cth) s 16.

In DPP (Cth) v AB [2006] SASC 84; (2006) 161 A Crim R 45, [32]-[33], Perry J (with whom Nyland and Layton JJ agreed) offered a non-exhaustive list of circumstances where assistance may be taken into account:

An informer may identify a co-offender, offer to give evidence against another offender, give information leading to the detection of other, unrelated crimes and the offenders responsible for them, alert police to the fact that a crime is being planned, act as an undercover agent, assist the police in the recovery of stolen property, pass on information gleaned from others while in custody, and so on.

The underlying principle applied by the courts in such circumstances is that it is in the public interest to encourage offenders to assist the authorities to be made aware of other crimes and to bring other offenders to justice.

Factors Relevant to Assessing the Discount for Past Co-operation

Section 16A(2) does not provide guidance as to factors relevant to assessing a discount for co-operation.

The effectiveness of the assistance and its value to the authorities are relevant considerations in assessing a discount for co-operation: R v El Hani [2004] NSWCCA 162, [73].

It is relevant to consider whether the person is likely to be subject to threats or worse treatment from other prisoners: DPP (Cth) v AB [2006] SASC 84; (2006) 161 A Crim R 45, [42]. As such, whether the person is likely to serve their sentence under strict protective conditions as a result of providing assistance may also be relevant: R v Z [2006] NSWCCA 342; (2006) 167 A Crim R 436, [92], [96].

However, in R v Sukkar [2006] NSWCCA 92; (2006) 172 A Crim R 151, [4], Howie J observed that it is no longer inevitable that a person who has assisted the authorities will serve their sentence in more difficult conditions. [15] Howie J further noted at [5] that:

It should now be accepted that an offender who has provided assistance will not necessarily be disadvantaged in the prison system and, if the offender wishes to assert otherwise, he or she should lead evidence of that fact.

It may be relevant when assessing the value of assistance to consider whether the person has honestly disclosed the extent of their involvement in the crime. In R v El Hani [2004] NSWCCA 162, [73], the Court considered that the value of the assistance was despoiled by the applicant’s steadfast denial of his own guilt. But see, R v Z [2006] NSWCCA 342; (2006) 167 A Crim R 436, [89], where full disclosure of personal involvement was not regarded as ranking highly in assessing the value of the assistance as the AFP had accepted the assistance without reservation.

Note: The Australian Law Reform Commission has referred to sentencing legislation in New South Wales and the Australian Capital Territory that sets out factors which courts must consider in determining whether to grant a discount for co-operation. These factors may provide useful guidance in sentencing federal offenders:

These factors include: the significance and usefulness of the assistance taking into consideration any evaluation by the authorities of the assistance rendered or undertaken to be rendered; the nature, extent and timeliness of the assistance or promised assistance; any risk of danger or injury or any injury suffered by the offender or the offender's family as a result of the assistance; and the impact of the offence on the victims. [16]

Caculating a Discount for Past Co-operation

Due to the possibility of double counting it will generally be inappropriate to specify separate and distinct discounts for co-operation and a guilty plea. In DPP (Cth) v AB [2006] SASC 84; (2006) 161 A Crim R 45, [66], Perry J (with whom Nyland and Layton JJ agreed) stated that:

…where a discount is to be allowed, both for a plea of guilty and for assistance to the authorities, where it is practicable to do so, the extent of the discount should be indicated…in a single figure or period. To do so avoids the risk of overlap, and spares the sentencing judge the task, which at times may be completely impracticable, of attempting to disentangle the various elements to be allowed for with respect to each reduction.

In SZ v The Queen [2007] NSWCCA 19; (2007) 168 A Crim R 249, [43]-[44], a matter decided in relation to s23(3) of the Crimes (Sentencing Procedure) Act 1999 (NSW), the New South Wales Court of Criminal Appeal endorsed the observations of Howie J in R v El Hani [2004] NSWCCA 162 that established practice is generally for a single discount to be given for both a guilty plea and assistance. This has been approved in subsequent federal sentencing decisions: Cheun v The Queen [2009] NSWCCA 116, [11].

A discount for assistance need not be applied to every offence for which the person is being sentenced. In R v Nguyen [2008] SASC 238, Duggan J (with whom David and Kelly JJ agreed) refused an appeal of a decision to apply a discount to numerous taxation offences but not to several Centrelink offences. Duggan J noted at [11] that:

It is not in dispute that when a court sentences an offender for a Commonwealth offence, it is entitled to take into account co-operation which the offender has given, or promised, with respect to other matters which may bear no direct relationship to the offending for which the penalty is being imposed. However, that is not to say that the court is required to reduce the sentence for every offence which is charged on the same complaint or information.

Discount Range

Composite discounts for both a guilty plea and assistance to the authorities generally range between twenty and fifty percent.

In R v Sukkar [2006] NSWCCA 92, [54], Latham J (with whom McClellan CJ and Howie J agreed) stated that:

While there is no fixed tariff for assistance to the authorities, discounts customarily ranged between 20 percent and 50 percent. There have been comparatively rare cases where a discount in the order of 55 percent or 60 percent has been given. Generally speaking however, a discount of 50 percent is regarded as appropriate to assistance of a very high order. No doubt, that is in part a reflection of the principle that a discount for assistance must not produce a result which is disproportionate to the objective gravity of a particular offence and the circumstances of a particular offender.

A combined discount range of between twenty and fifty percent was confirmed in the state sentencing case SZ v The Queen [2007] NSWCCA 19; (2007)168 A Crim R 249. Justice Buddin at [43]-[44] cited with approval the federal case R v El Hani [2004] NSWCCA 162, in which Howie J indicated a composite discount of between twenty and fifty percent remains established practice. [17]

In R v Sukkar [2006] NSWCCA 92, [56], a combined discount of forty-five percent awarded by the sentencing judge was deemed excessive as the assistance was not of a very high order, the respondent demonstrated little contrition, the respondent and his family were not at any personal risk and there was no evidence of any hardship arising directly out of the giving of assistance. A thirty-five percent discount was substituted.

In DPP (Cth) v AB [2006] SASC 84; (2006) 161 A Crim R 45, [90]-[94], a combined discount of sixty percent was deemed excessive as the respondent was not required to give evidence and there was nothing to suggest that the authorities could not manage his safety in prison. A combined discount of forty percent was substituted.

In certain cases a combined discount of more that fifty percent may be appropriate. A composite discount exceeding fifty percent may be justified where the assistance is of an extraordinary kind or where information is disclosed that was otherwise unknown to the authorities: SZ v The Queen [2007] NSWCCA 19; (2007)168 A Crim R 249, [52]. However, such cases will be relatively rare and generally a fifty percent discount is appropriate for assistance of a very high order: R v Sukkar [2006] NSWCCA 92, [54].

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taking into account future co-operation

Section 21E relates to future co-operation and enables the Commonwealth Director of Public Prosecutions to appeal a sentence reduced in return for future assistance where the offender fails to comply with that undertaking.

Under s21E(1), where a federal sentence or non-parole period is reduced because the offender has undertaken to co-operate in proceedings relating to any offence, the court must:

(a) if the sentence is reduced – specify that the sentence is being reduced for that reason and state the sentence that would have been imposed but for the reduction; and

(b) if the non-parole period is reduced – specify that the non-parole period is being reduced for that reason and state what the period would have been but for the reduction.

Section 21E(1) also applies where a recognizance release order is reduced for future co-operation: DPP (Cth) v Haunga [2001] VSCA 73; (2001) 127 A Crim R 358, [10].

Professors Fox and Freiberg note that:

The most significant difference between the federal and state arrangements is that, under Crimes Act 1914 (Cth), s 21E(1), if the original federal sentence is reduced on account of promised cooperation, the judge or magistrate sentencing the federal offender is obliged not only to specify that the sentence is being reduced for that reason, but also to indicate what sentence would have been imposed, but for the reduction. The same is true of any reduction in a non-parole period. [18]

Past and future co-operation should be considered separately. A single discount incorporating both past and future co-operation fails to comply with s 21E: R v Vo [2006] NSWCCA 165, [33]; R v Tae [2005] NSWCCA 29, [19]. In R v Hodgson [2002] SASC 349; (2002) 135 A Crim R 92, Debelle J at [29] stated that:

…if a sentencing judge intends to reduce a sentence for future as well as past co-operation, the judge should first take past co-operation into account along with other mitigating factors in arriving at a head sentence and then, additionally and separately, allow for future co-operations provided by s 21E.

Note: s 21E(1) applies where the offender has undertaken to co-operate in proceedings including ‘confiscation proceedings’. ‘Confiscation proceedings’ are defined in s 21E(4).

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Failure to co-operate in accordance with undertaking

Section 21E(2) and (3) are relevant where an offender fails to comply with an undertaking to provide future co-operation.

Section 21E(2) allows the Director of Public Prosecutions to appeal against the inadequacy of a sentence or non-parole period where it is in the interests of the administration of justice because an offender has without reasonable excuse failed to provide promised co-operation.

The DPP must show that a federal sentence or non-parole period has been fixed, and that this order was reduced because the offender had undertaken to co-operate as described in s 21E(1), and following sentence, the offender, without reasonable excuse, has failed to co-operate in accordance with the undertaking.

Note: This appeal must take place while the offender remains under sentence.

It is for the court to determine whether an offender has failed to co-operate ‘without reasonable excuse:’ R v YZ [1999] NSWCCA 48; (1999) 162 ALR 265, [29], [40], [44]. The onus is on the Director to satisfy the court beyond reasonable doubt that the offender’s failure to co-operate was without reasonable excuse: R v Springer [2009] NSWCCA 144, [45].

The requirements of s 21E(2) are described in R v YZ [1999] NSWCCA 48; (1999) 162 ALR 265 by Sully and Dunford JJ at [36]:

The single ground on which the appeal [under s21E(2)] may be instituted is that:

(i) a federal sentence has been imposed
(ii) the sentence has been reduced under subs(1) AND
(iii) the offender has, without reasonable excuse, not co-operated with the undertaking.

If these three matters are satisfied, subject to two further considerations, the Director of Public Prosecutions (the Director) may appeal, those two further considerations being that the offender remains under sentence and the Director is of the opinion that it is in the interests of the administration of justice to do so.

Section 21E(3) governs the approach to be taken by the court where an offender has failed to co-operate in accordance with an undertaking.

• Section 21E(3)(a) provides that where the court is satisfied that the person has failed entirely to co-operate with the undertaking, the court must substitute the sentence or non-parole period that would have been imposed but for the reduction.
• Under s 21E(3)(b), where the person has failed in part to co-operate, the court may substitute a sentence or non-parole period, not exceeding that which could be fixed under sub-s(a), as it thinks appropriate.

The purpose of s 21E(3) is not to punish the offender but to restore the sentence. See R v Vo [2006] NSWCCA 165, [38], where McClellan CJ at CL (with whom Hislop and Johnson JJ agreed) stated that:

The purpose of s 21E(3)(a) and (b) is not to punish the offender for failing to cooperate but rather to restore the sentence which would have been imposed if the offer to cooperate had not been made. If a person has failed entirely to cooperate the appeal court must restore the original sentence. If the failure is as to part the court has a discretion. However, that discretion is confined so that the court may not impose an additional sentence which exceeds the maximum by which the original sentence was reduced. In my opinion the additional sentence should so far as the appeal court is able reflect an increase in the sentence which reflects the extent to which the offered cooperation has not been forthcoming.

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Footnotes

[1] R v Thomson; R v Houlton [2000] NSWCCA 309; (2000) 49 NSWLR 383, [122].

[2] See R v Thomson; R v Houlton [2000] NSWCCA 309; (2000) 49 NSWLR 383, [111].

[3] Australian Law Reform Commission, Same Crime, Same Time: Sentencing of Federal Offenders, Report 103 (2006), [11.8].

[4] See Australian Law Reform Commission, Same Crime, Same Time: Sentencing of Federal Offenders, Report 103 (2006), [11.8] citing Sinagra-Brisca v The Queen [2004] WASCA 68, [17]; Ma v The Queen [2001] WASCA 325, (2001) 125 A Crim R 349, [101]; Radebe v The Queen [2001] WASCA 254, (2001) 122 A Crim R 559, [28].

[5] R v Thomson; R v Houlton [2000] NSWCCA 309; (2000) 49 NSWLR 383, [152] (Spigelman CJ).

[6] See R v Rooke (Unreported, Supreme Court of South Australia Court of Criminal Appeal, Doyle CJ, Williams and Bleby JJ, 19 June 1998). See also R v Thomson; R v Houlton [2000] NSWCCA 309, [149] where Spigelman CJ states:

In South Australia a discount of 25 percent for an early plea of guilty has often been referred to (R v Sutherland supra [(Unreported, Supreme Court of South Australia Court of Criminal Appeal, 16 November 1992, at p3)]; R v Nixon (1993) 66 A Crim R 83 at 90; R v Kendall (Supreme Court of South Australia Court of Criminal Appeal, 16 June 1997, unreported); Allen v R [1999] SASC 346). Discounts in the range of 15-25 percent have been described as "quite common". (R v Rooke supra per Doyle CJ)).

[7] See for example Australian Law Reform Commission, Same Crime, Same Time: Sentencing of Federal Offenders, Report 103 (2006), [11.7] - [11.8].

[8] Australian Law Reform Commission, Same Crime, Same Time: Sentencing of Federal Offenders, Report 103 (2006), [11.8].

[9] R v Thomson; R v Houlton [2000] NSWCCA 309; (2000) 49 NSWLR 383, [160], [162].

[10] DPP (Cth) v AB [2006] SCSC 84; (2006) 94 SASR, [48]; R v Place (2002) 81 SASR 395, [83].

[11] Kelly v The Queen [2000] NTCCA 3; (2000) 113 A Crim R 263, [27]; Presswell v Burgoyne [2005] NTSC 67, [6]. See also Australian Law Reform Commission, Same Crime, Same Time: Sentencing of Federal Offenders, Report 103 (2006), [11.8].

[12] Pavlic v The Queen [1995] TASSC 96; (1995) 5 Tas R 186, 191 (Green CJ), 193 (Wright J); R v Stanley [1998] TASSC 13; (1998) 7 Tas R 357, 372.

[13] VU v New South Wales Police Service [2007] FCA 1508; (2007) 73 IPR 531, [45]-[47]; R v Otto [2005] NSWCCA 333; (2005) 157 A Crim R 525, [79]-[82].

[14] R v Simon [2003] NSWCCA 147, [26] (Sheller JA with whom Hidden J and Carruthers AJ agreed).

[15] See also Cheun v The Queen [2009] NSWCCA 116, [13]-[15].

[16] Australian Law Reform Commission, Same Crime, Same Time: Sentencing of Federal Offenders, Report 103 (2006), [11.58] referring to the Crimes (Sentencing Procedure) Act 1999 (NSW) s 23 and the Crimes (Sentencing) Act 2005 (ACT) s 36.

[17] SZ v The Queen [2007] NSWCCA 19, [43]-[44] (Buddin J with Howie J in agreement with additional comments and Simpson J in agreement with both) citing with approval R v El Hani [2004] NSWCCA 162, [66]-[67], [69], [71] (Howie J with whom Simpson and Bell JJ agreed).

[18] Richard Fox and Arie Freiberg, Sentencing: State and Federal Law in Victoria (2nd ed, 1999) [13.217].

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