In York v the Queen (2005) 225 CLR 466, Gleeson CJ at [3] observed:

“It is a common sentencing practice to extend leniency, sometimes very substantial leniency, to an offender who has assisted the authorities..”

In that case, the offender had pled guilty to possession of a dangerous drug in excess of 500 grams. The offender then helped the authorities with the conviction of a man for a “very brutal execution-style murder” and was subsequently sentenced to 5 years imprisonment which was suspended.

In NSW, the current basis of the Court’s power to discount any sentence for provision of assistance to law enforcement is contained in section 23 Crimes (Sentencing Procedure) Act 1999.

Ellis discount

If an offender voluntarily confesses to a crime that is not known to the authorities, then the courts will extend leniency to the offender when sentencing the offender for the offence. The leniency referred to as the Ellis discount is summarised in R v Ellis (1986) 6 NSWLR 603 at [604] where the court held:

“When the conviction follows upon a plea of guilty, that itself is the result of a voluntary disclosure of guilt by the person concerned, a further element of leniency enters into the sentencing decision. Where it was unlikely that guilt would be discovered and established were it not for the disclosure by the person coming forward for sentence, then a considerable element of leniency should properly be extended by the sentencing judge. It is part of the policy of the criminal law to encourage a guilty person to come forward and disclose both the fact of an offence having been committed and confession of guilt of that offence.

The leniency that follows a confession of guilt in the form of a plea of guilty is a well-recognised part of the body of principles that cover sentencing. Although less well recognised, because less frequently encountered, the disclosure of an otherwise unknown guilt of an offence merits a significant added element of leniency, the degree of which will vary according to the degree of likelihood of that guilt being discovered by the law enforcement authorities, as well as guilt being established against the person concerned.”

This discount is legislated in section 23 Crimes (Sentencing Procedure) Act 1999.

Rationale for the discounts

It is quite common for the only source of information about a crime, actual or in contemplation, to come from other criminals. It is in the public interest to encourage offenders to supply such information to authorities, including the police, and to give evidence against other offenders. Thus it has been held that the supply of such information to the authorities is to be encouraged and rewarded regardless of motive, that is whether such assistance is motivated by genuine remorse or simply self-interest as per Hunt and Badgery-Parker JJ in R v Cartwright (1989) 17 NSWLR 243 at 252 which was endorsed in R v XX (2017) 266 A Crim R 132 at [46].

If the giving of assistance is motivated by genuine remorse or contrition, then even greater leniency may be extended to the offender under normal sentencing principles as per R v Cartwright (1989) 17 NSWLR 243 at 252.

Pannu Lawyers extensively practice in Criminal Law and regularly appear at Courts throughout New South Wales. If your matter is at Blacktown Local Court, we are conveniently located within a walking distance from the Blacktown Local Court. Call our office on 02 9920 1787 to discuss your matter in a confidential manner.