Sentencing Discounts

Published by Geoff Harrison | 8 May 2025

Sentencing plays a crucial role in the criminal justice system. It greatly impacts both offenders and victims. In New South Wales, the law allows for sentencing discounts based on different circumstances. A person cannot be penalised for exercising their right to make the prosecution prove an allegation or charge against them. However, the law allows for discounts on a sentence for a person pleading guilty (what is referred to as the utilitarian value or discount) for not putting the prosecution to proof or for a witness to attend and have to give evidence/be cross-examined.

Prior to the introduction of Pt 3, Div 1A Crimes (Sentencing Procedure) Act 1999 ('the Act') on 30 April 2018, discounts for pleas of guilty to indictable offences were dealt with via the common law and cases such as R v Thomson, R v Houlton, and Siganto v The Queen. Discounts for pleas of guilty in the Local Court are still dealt with via principles of common law (see s22 of the Act). For indictable matters, there are now mandatory discount percentages applied under the Act, depending upon the timing of the plea of guilty: see ss 25A - 25F of the Act. The maximum discount available for an early plea of guilty is 25%.

Apart from a discount for the plea of guilty, there are other discounts that can apply, for example:

• Making admissions to an offence that was otherwise unknown to the authorities (known as the Ellis principle or discount).

• Facilitating the administration of justice: see s22A.

• Providing assistance to the authorities: see s23 of the Act and Panetta v R.

Other Sources:

• Sentencing Bench Book: Guilty Pleas

• Sentencing Bench Book: Mandatory Discounts

• Sentencing Bench Book: Voluntary Disclosures of Unknown Guilt

• NSW Legal Aid: Pleading Guilty

• Law Reform Commission: Encouraging Early Appropriate Guilty Pleas, Report 141

• NSW ODPP: Sentencing

• CRIMES (SENTENCING PROCEDURE) AMENDMENT (SENTENCING OPTIONS) BILL 2017: Second Reading Speech (Legislative Assembly)

Cases:

• Rokovada v R [2025] NSWCCA 64

• R v Thomson; R v Houlton [2000] NSWCCA 309

• R v Robert Borkowski [2009] NSWCCA (see: [32])

• R v Ellis (1986) 6 NSWLR 603

• Panetta v R [2016] NSWCCA 85 (Assistance to Authorities)

• R v Zamagias [2002] NSWCCA 17

• Siganto v R [1998] HCA 74

Extracted Legislation:

CRIMES (SENTENCING PROCEDURE) ACT 1999 - SECT 22

Guilty plea to be taken into account for offences not dealt with on indictment

(1) In passing sentence for an offence on an offender who has pleaded guilty to the offence, a court must take into account--

(a) the fact that the offender has pleaded guilty, and

(b) when the offender pleaded guilty or indicated an intention to plead guilty, and

(c) the circumstances in which the offender indicated an intention to plead guilty,

and may accordingly impose a lesser penalty than it would otherwise have imposed.

(1A) A lesser penalty imposed under this section must not be unreasonably disproportionate to the nature and circumstances of the offence.

(2) When passing sentence on such an offender, a court that does not impose a lesser penalty under this section must indicate to the offender, and make a record of, its reasons for not doing so.

(3) Subsection (2) does not limit any other requirement that a court has, apart from that subsection, to record the reasons for its decisions.

(4) The failure of a court to comply with this section does not invalidate any sentence imposed by the court.

(5) This section applies only to a sentence for an offence that is dealt with summarily or to a sentence for an offence dealt with on indictment to which Division 1A does not apply.

Note : Discounts for the utilitarian value of a guilty plea to other offences are provided for by Division 1A.

CRIMES (SENTENCING PROCEDURE) ACT 1999 - SECT 22A

Power to reduce penalties for facilitating the administration of justice

(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.

CRIMES (SENTENCING PROCEDURE) ACT 1999 - SECT 23

Power to reduce penalties for assistance provided to law enforcement authorities

(1) A court may impose a lesser penalty than it would otherwise impose on an offender, having regard to the degree to which the offender has assisted, or undertaken to assist, law enforcement authorities in the prevention, detection or investigation of, or in proceedings relating to, the offence concerned or any other offence.

(2) In deciding whether to impose a lesser penalty for an offence and the nature and extent of the penalty it imposes, the court must consider the following matters--

(b) the significance and usefulness of the offender's assistance to the authority or authorities concerned, taking into consideration any evaluation by the authority or authorities of the assistance rendered or undertaken to be rendered,

(c) the truthfulness, completeness and reliability of any information or evidence provided by the offender,

(d) the nature and extent of the offender's assistance or promised assistance,

(e) the timeliness of the assistance or undertaking to assist,

(f) any benefits that the offender has gained or may gain by reason of the assistance or undertaking to assist,

(g) whether the offender will suffer harsher custodial conditions as a consequence of the assistance or undertaking to assist,

(h) any injury suffered by the offender or the offender's family, or any danger or risk of injury to the offender or the offender's family, resulting from the assistance or undertaking to assist,

(i) whether the assistance or promised assistance concerns the offence for which the offender is being sentenced or an unrelated offence.

(3) 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.

(4) A court that imposes a lesser penalty under this section on an offender because the offender has assisted, or undertaken to assist, law enforcement authorities must--

(a) indicate to the offender, and make a record of the fact, that the lesser penalty is being imposed for either or both of those reasons, and

(b) state the penalty that it would otherwise have imposed, and

(c) where the lesser penalty is being imposed for both reasons--state the amount by which the penalty has been reduced for each reason.

(5) Subsection (4) does not limit any requirement that a court has, apart from that subsection, to record the reasons for its decisions.

(6) The failure of a court to comply with the requirements of subsection (4) with respect to any sentence does not invalidate the sentence.

CRIMES (SENTENCING PROCEDURE) ACT 1999 - SECT 25A

Application of Division

(1) This Division applies to a sentence for an offence that is dealt with on indictment, other than--

(a) an offence under a law of the Commonwealth, unless the regulations otherwise provide in the case of a particular offence or class of offences, or

(b) an offence committed by a person who was under the age of 18 years when the offence was committed and under the age of 21 years when charged before the court with the offence.

(2) A court must not apply any other discount for the utilitarian value of a guilty plea to an offence to which this Division applies other than the discount provided for by this Division.

CRIMES (SENTENCING PROCEDURE) ACT 1999 - SECT 25B

Definitions

In this Division--

"negotiations document" means--

(a) if an offender was represented by an Australian legal practitioner in proceedings--

(i) a case conference certificate (including any later plea offer) filed in committal proceedings for the offence concerned under the Criminal Procedure Act 1986 , or

(ii) any other document that records an offer made by the offender to plead guilty to an offence specified in the document, served on the prosecutor in proceedings for the offence--

(A) following committal for trial or sentence, or

(B) after an indictment containing a new count offence is filed, or

(b) if an offender was not represented in proceedings, any document served on the prosecutor in the proceedings that records an offer made by the offender to plead guilty to an offence specified in the document.

"new count offence" means--

(a) an offence the subject of an ex officio indictment, or

(b) an offence for which the count is inserted in an indictment by amending the indictment (the

"original indictment" ).

"sentence" means a term of imprisonment, fine or the term of an intensive correction order, a community correction order or a conditional release order.

CRIMES (SENTENCING PROCEDURE) ACT 1999 - SECT 25C

Timing of pleas and notice requirements

(1) In this Division--

"first day of the trial of an offender" means 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.

(2) For the purposes of this Division, an offender

"complies with the pre-trial notice requirements" if the offender serves a notice on the prosecutor at least 14 days before the first day of the trial of the offender accepting an offer by the prosecutor to plead guilty to the offence or offering to plead guilty to the offence.

CRIMES (SENTENCING PROCEDURE) ACT 1999 - SECT 25D

Sentencing discounts for guilty plea for offences dealt with on indictment

(1) Mandatory nature of sentencing discount In determining the sentence for an offence, the court is to apply a sentencing discount for the utilitarian value of a guilty plea in accordance with this section if the offender pleaded guilty to the offence at any time before being sentenced.

(2) Amounts of sentencing discounts The discount for a guilty plea by an offender (other than an offender referred to in subsection (3) or (5) or section 25E) is as follows--

(a) a reduction of 25% in any sentence that would otherwise have been imposed, if the plea was accepted by the Magistrate in committal proceedings for the offence,

(b) a reduction of 10% in any sentence that would otherwise have been imposed, if the offender was committed for trial and the offender--

(i) pleaded guilty at least 14 days before the first day of the trial of the offender, or

(ii) complied with the pre-trial notice requirements and pleaded guilty at the first available opportunity able to be obtained by the offender,

(c) a reduction of 5% in any sentence that would otherwise have been imposed, if paragraph (a) or (b) does not apply.

(3) Discount variations--new count offences The discount for a guilty plea by an offender in respect of a new count offence is as follows--

(a) a reduction of 25% in any sentence that would otherwise have been imposed, if an offer to plead guilty was made by the offender and recorded in a negotiations document as soon as practicable after the ex officio indictment was filed or the indictment was amended to include the new count,

(a1) a reduction of 25% in any sentence that would otherwise have been imposed, if--

(i) the offender was discharged under section 68(2)(a) of the Criminal Procedure Act 1986 , and

(ii) an offer to plead guilty was made by the offender and recorded in a negotiations document as soon as practicable after the ex officio indictment was filed or the indictment was amended to include the new count,

(b) a reduction of 10% in any sentence that would otherwise have been imposed, if paragraph (a) or (a1) does not apply and the offender--

(i) pleaded guilty at least 14 days before the first day of the trial of the offender, or

(ii) complied with the pre-trial notice requirements and pleaded guilty to the offence at the first available opportunity able to be obtained by the offender,

(c) a reduction of 5% in any sentence that would otherwise have been imposed, if paragraph (a), (a1) or (b) does not apply.

(4) However, the discount in subsection (3) (a) does not apply if--

(a) the facts or evidence that establish the elements of the new count offence are substantially the same as those contained in the brief of evidence or other material served on the offender by the prosecutor in committal proceedings relating to the original indictment and the penalty for the new count offence is the same as, or less than, the offence set out in the original indictment, or

(b) the offender refused an offer to plead guilty to the new count offence that was made by the prosecutor in the committal proceedings relating to the original indictment and the offer was recorded in a negotiations document.

(5) Discount variations--person found fit to be tried after committal for trial The discount for a guilty plea by an offender who is found fit to be tried after the offender is committed for trial, and whose matter was not remitted to a Magistrate for continued committal proceedings, is as follows--

(a) a reduction of 25% in any sentence that would otherwise have been imposed, if the offender pleaded guilty as soon as practicable after the offender was found fit to be tried,

(b) a reduction of 10% in any sentence that would otherwise have been imposed, if paragraph (a) does not apply and the offender--

(i) pleaded guilty at least 14 days before the first day of the trial of the offender, or

(ii) complied with the pre-trial notice requirements and pleaded guilty at the first available opportunity able to be obtained by the offender,

(c) a reduction of 5% in any sentence that would otherwise have been imposed, if paragraph (a) or (b) does not apply.

(6) Opportunities for legal help to be taken into account For the purpose of determining under subsection (3) or (5) whether the offender pleaded guilty as soon as practicable after an ex officio indictment was filed or the original indictment was amended or after a finding of fitness to be tried, the court is to take into account whether the offender had a reasonable opportunity to obtain legal advice and give instructions to his or her legal representative (if any).

CRIMES (SENTENCING PROCEDURE) ACT 1999 - SECT 25E

Sentencing discounts to apply in certain cases where guilty plea offer made for different offences and refused when made

(1) Discount where offer not accepted In determining the sentence for an offence, the court is to apply a sentencing discount in accordance with this section if--

(a) the offender made an offer recorded in a negotiations document to plead guilty to an offence, and

(b) that offence (the

"different offence" ) was not the offence the subject of the proceedings when the offer was made, and

(c) the offer was not accepted by the prosecutor, and

(d) the offer was not subsequently withdrawn, and

(e) the offender was found guilty of the different offence or an offence that is reasonably equivalent to the different offence.

For the purposes of this subsection, an

"offence is reasonably equivalent to a different offence" if--

(a) the facts of the offence are capable of constituting the different offence, and

(b) the maximum penalty for the offence is the same or less than the different offence.

(2) Discount where offer later accepted In determining the sentence for an offence, the court is to apply a sentencing discount for the utilitarian value of a guilty plea in accordance with this section if--

(a) the offender made an offer recorded in a negotiations document to plead guilty to an offence, and

(b) that offence (the

"different offence" ) was not the offence the subject of the proceedings when the offer was made, and

(c) the offer was refused but accepted by the prosecutor after the offender was committed for trial, and

(d) the offender pleaded guilty to the different offence at the first available opportunity able to be obtained by the offender.

(3) Discount variation--offer to plead guilty to different offence The discount to be applied by the court is as follows--

(a) a reduction of 25% in any sentence that would otherwise have been imposed, if the offer was made before the offender was committed for trial,

(b) a reduction of 10% in any sentence that would otherwise have been imposed, if the offer was made after the offender was committed for trial and at least 14 days before the first day of the trial of the offender,

(c) a reduction of 5% in any sentence that would otherwise have been imposed, if the offer was made less than 14 days before or on or after the first day of the trial of the offender.

CRIMES (SENTENCING PROCEDURE) ACT 1999 - SECT 25F

Other provisions applying to sentencing discount

(1) Application This section applies to a sentencing discount under this Division.

(2) Exception to application of discount--level of culpability The court may determine not to apply the sentencing discount, or to apply a reduced sentencing discount, if the court determines, on its own motion or on the application of the prosecution, that the discount should not be applied or should be reduced because the level of culpability in the commission of the offence is so extreme that the community interest in retribution, punishment, community protection and deterrence can be met only by imposition of a penalty with no allowance for, or a reduction of, that discount.

(3) If a case conference certificate was filed in committal proceedings for the offence, a prosecutor is not entitled to apply to the court for a determination that the discount should not be applied or should be reduced unless the certificate records that the prosecutor notified the offender's legal representative, at or before the conference, of the intention to make the application.

(4) Exception to application of discount--disputed facts The court may determine not to apply the sentencing discount, or to apply a reduced sentencing discount, if the court determines that the discount should not be applied or should be reduced because the utilitarian value of the plea of guilty has been eroded by a dispute as to facts that was not determined in favour of the offender.

(5) Offender to establish grounds for discount The burden of establishing that grounds exist for the sentencing discount lies on the offender and must be proved on the balance of probabilities.

(6) Application to Drug Court proceedings The sentencing discount applicable to a person who is sentenced for an offence under the Drug Court Act 1998 applies to a person who indicates an intention to plead guilty to an offence before being referred to the Drug Court, and who subsequently pleads guilty to the offence before the Drug Court, as if the person had pleaded guilty to the offence before being committed for sentence in committal proceedings for the offence.

(7) Discount information to be given to offender by court The court must indicate the following to the offender when passing sentence for an offence and must record the matters indicated--

(a) if the sentencing discount is applied, how the sentence imposed was calculated,

(b) if the court determines in accordance with this section not to apply or to reduce the discount, the reasons for the determination.

(8) Sentence not invalidated by failure to comply The failure by a court to comply with this Division does not invalidate any sentence imposed by the court.

(9) No discount where life sentence A sentencing court must not allow any discount under this Division for a guilty plea if the court determines a sentence of life imprisonment.