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Co-operation

The content on this page was last reviewed on 3 July 2019.

Related Links: Guilty Plea

1. Overview

When sentencing a federal offender a court should consider whether the offender has co-operated or undertaken to co-operate with law enforcement agencies. Consideration of this sentencing factor may result in the court providing a ‘discount’ to the sentence it would otherwise impose. Callaway J remarked in R v Duncan [1998] 3 VR 208, [214]–[215] that:

Both 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.

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

Section 16A

(2) In addition to any other matters, the court must take into account such of the following matters as are relevant and known to the court:

(h)  the degree to which the person has co-operated with law enforcement agencies in the investigation of the offence or of other offences;

  • Section 16AC addresses undertakings as to future co-operation. The legislative provision requires the court to specify when such a discount is given and to state the sentence, order or non-parole period that would have been imposed but for that discount. This allows the original sentence to be restored where a person fails to co-operate in accordance with an undertaking. Section 16AC was introduced in November 2015, replacing the repealed former s 21E with similar terms, 1 but s 16AC applies to sentences, non-parole periods and ‘orders’, 2 not just sentences of imprisonment.

Where both past and future co-operation are relevant considerations each should be dealt with separately. 3

On the operation of the two provisions (s 16A(2)(h) and the former s 21E), the Queensland Court of Appeal remarked in R v Gladkowski [2000] QCA 352, [12] that:

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. 4

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2. Rationale for Discounts for Co-operation

In Isaac v The Queen [2012] NSWCCA 195, Garling J (Hoeben JA and Latham J agreeing) set out the rationale which underpins the discount for assistance to authorities at [46]:

In assessing the appropriate discount for assistance, it is necessary to recognise the reasons which underpin the giving of the discount. They include:

(a) it is in the public interest that criminals with information about the activities of other criminals with whom they are associated should be encouraged to give information to the police: R v Lowe (1977) 66 Cr App R 122; R v Perez-Vargas (1986) 6 NSWLR 559 at 562 per Street CJ with whom Hunt and Allen JJ agreed;

 

(b) it is in the public interest that criminals should be persuaded not to trust one another and discounting the sentence of a person who provides such assistance facilitates such distrust: R v James and Sharman (1913) 9 Cr App R 142; R v Golding (1980) 24 SASR 161 at 162 per Wells J;

 

(c) leniency through a discount for assistance to police marks, or rewards, the good inherent in the conduct of the provider of the assistance: Golding at [172]–[173] per Wells J;

 

(d) a person who has provided assistance will often, but not always, whilst a prisoner, be confined for his or her own protection in much harsher conditions than the general prison population. Hardship may also be occasioned to a prisoner upon their release into the community: R v Cartwright (1989) 17 NSWLR 243 at 250 per Hunt and Badgery-Parker JJ; R v Gallagher (1991) 23 NSWLR 220 at 227 per Gleeson CJ; R v Sukkar [2006] NSWCCA 92; (2006) 172 A Crim R 151 at [55] per Latham J.

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3. Past Co-operation

Section 16A

(2) In addition to any other matters, the court must take into account such of the following matters as are relevant and known to the court:

(h) the degree to which the person has co-operated with law enforcement agencies in the investigation of the offence or of other offences

‘Offence’ means a federal, state or territory offence. 5

The term ‘law enforcement agency’ is not defined in s 3, nor is it given a definition for the purposes of Part IB. 6  A court is not a ‘law enforcement agency’ for the purposes of s 16A(2)(h). 7

The term ‘law enforcement officer’ is defined in s 3 of the Crimes Act 1914 (Cth). The section provides:

“law enforcement officer” means any of the following:

(a)  the Commissioner of the Australian Federal Police, a Deputy Commissioner of the Australian Federal Police, an AFP employee or a special member of the Australian Federal Police (all within the meaning of the Australian Federal Police Act 1979);

 

(b)  a member of the police force of a State or Territory;

 

(ba) a staff member of ACLEI [Australian Commission for Law Enforcement Integrity];

 

(c)  a member of the staff of the ACC [Australian Crime Commission];

 

(d)  an officer of Customs;

 

(e)  a member of a police force, or other law enforcement agency, of a foreign country.

 In DPP (Cth) v AB [2006] SASC 84,  Perry J (Nyland and Layton JJ agreeing) offered a non-exhaustive list of circumstances where assistance may be taken into account at [32]–[33]:

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 (emphasis added).

3.1 Voluntary co-operation

Section 16A(2)(h) is limited to voluntary co-operation. Information provided under compulsion, such as disclosure pursuant to obligations under legislation, is unlikely to be considered ‘co-operation’, unless the offender can show that information was volunteered beyond what was required. 8

In Ungureanu v The Queen [2012] WASCA 11, the offender was subject to a compulsory examination under the Australian Crime Commission Act 2002 (Cth). The Court found that there was ‘no evidence of any voluntary statement being provided’ 9 in the examination and therefore the disclosure of communication could not be considered ‘co-operation’ within the meaning of s 16A(2)(h).

In R v Falconer [2018] NSWSC 1765, the offender was required to attend ‘examinations pursuant to s 19 of the Australian Securities and Investments Commission Act 2001 (Cth) and to answer questions posed in the examinations truthfully’. 10 Accordingly, Adamson J held that as the offender’s co-operation with authorities was required by law, it could not be regarded as voluntary. 11

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3.2 Factors relevant to assessing the discount for past co-operation

Section 16A(2)(h) does not provide guidance as to factors relevant to assessing a discount for co-operation. The Australian Law Reform Commission has referred to sentencing legislation in New South Wales 12 and the Australian Capital Territory 13 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:

– 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. 14

3.2.1 Nature of assistance

The effectiveness of the assistance and its value to the authorities are relevant considerations in assessing a discount for co-operation. 15 A substantial discount may be given to an offender who provides useful assistance, irrespective of the offender’s contrition or remorse. However, if the giving of assistance is an expression of genuine remorse or contrition, greater leniency may be extended than would otherwise be the case. 16

Where genuine co-operation has been provided, a discount will not be lost if authorities do not act on the information. This situation might arise, for example, where more cogent evidence from another source has emerged, or the subject of the information has pleaded guilty. 17

In Aboud v The Queen [2017] NSWCCA 140, the Court found the offender’s provision of passwords to police investigating  sexual harassment and offending via the internet offences was ‘effectively de minimis in [the] context’ of other admissions, and it was found to be commendable but not critical. 18 Harrison J, with Macfarlan JA and Johnson J agreeing, stated at [56] that:

Mr Aboud contends that if the damning electronic evidence was either limited to, or even if it merely included, the discrete material that came from him, he is entitled to be given the benefit of that fact in the formulation of his sentence and that her Honour should otherwise have made her position clear. In my opinion, Mr Aboud’s concern is purely one of form but not substance. By the time the police had interviewed Mr Aboud he had admitted his involvement in the allegations and proffered some further details and explanations of his conduct. The important admission was that he was the owner and sole user of the relevant Facebook accounts. His further concession that the purpose of the accounts was to talk to young females was particularly significant. It would have been churlish in the extreme thereafter for Mr Aboud to have denied access to the passwords for these accounts in the circumstances. It would, for example, have arguably disentitled Mr Aboud to the benefit of contrition that was factored, together with his pleas, into the final sentence. It would possibly also to some extent have neutralised, or at least reduced, the benefit to him of his previous admissions (emphasis added).

Past co-operation for a previous offence does not apply to separate later offences if there is no additional assistance provided. For example, in R v Asaad [2017] QCA 108, the Queensland Court of Appeal held that the sentencing judge was not in error by not taking into account assistance that was said to have been provided to law enforcement agencies in relation to a previous offence, as there was no evidence before sentencing judge that suggested additional assistance had been provided or what risks, if any, the offender faced as a result of this assistant. 19

Co-operation with international authorities can be taken into account under s 16A(2)(h). For example, in the abuse of public office case of R v Gillett [2019] ACTSC 30, co-operation with overseas authorities was taken into account in sentencing, where the offender had travelled to the United States to provide assistance to the US Department of Justice in person. 20

3.2.2 Extent of assistance

A failure or refusal by an offender to provide co-operation to law enforcement agencies does not aggravate offending. 21

Further, where an offender provides some material co-operation to law enforcement agencies, a failure or refusal to provide other co-operation does not reduce the mitigating character of the co-operation which has been provided. 22 However, the discount will rarely be substantial unless the offender discloses everything he or she knows. 23 For example, in the conspiracy to commit an insider procuring offence case of R v Curtis (No 3) [2016] NSWSC 866, McCallum J held at [28] that:

The Crown accepts that there has been a measure of cooperation by Mr Curtis in the conduct of the trial which resulted in a significant shortening of the hearing. That reveals some preparedness to cooperate with law enforcement agencies. To a degree, however, it also reflects the strength of the Crown case owing to the careful work undertaken by ASIC in bringing this case to trial. The weight of Mr Curtis’s cooperation in the conduct of the trial must be assessed in the context of the whole of the investigation of the offence. Mr Curtis declined several opportunities to co-operate voluntarily with ASIC; as a result, extensive investigation had to be undertaken to obtain evidence of the overt acts. The degree of cooperation by Mr Curtis stands in stark contrast to that of his co-offender, Mr Hartman, who quickly and frankly acknowledged extensive wrong-doing and assisted ASIC to investigate it. Mr Curtis’s punishment is not to be increased on that account but the weight to be given to the degree of cooperation offered at the end of the process is small (emphasis added, citations omitted).

It may be relevant to consider whether the person has honestly disclosed the extent of their involvement in the crime.

In the drug importation case of R v El Hani [2004] NSWCCA 162, the Court considered that the value of the assistance was despoiled by the applicant’s steadfast denial of his own guilt. 24 However in R v Z [2006] NSWCCA 342, a money laundering and drug offence case, the Court rejected a Crown submission that the offender’s assistance was ‘undermined’ by the appellant’s lack of frankness in relation to his role. 25 The Court found that the lack of frankness did not rank highly in assessing the value of the assistance, as the AFP had accepted the assistance without reservation.

Where there is a high level of difficulty in detecting and investigating the offences, the extent of the offender’s co-operation may be ‘deserving of considerable weight’. 26 For example, in the cartel conduct case of DPP (Cth) v Nippon Yusen Kabushiki Kaisha [2017] FCA 876, the offender was given a 40% discount on sentence in part due to significant assistance to authorities. 27 Wigney J stated at [264] that:

NYK’s cooperation with both the ACCC and the Director is a highly significant consideration and deserving of considerable weight. As discussed earlier, the evidence demonstrates that NYK has provided timely, full, frank, truthful and, in most instances, expeditious cooperation throughout the ACCC’s investigation. That cooperation concerned both its own offending and the offending of others in respect of offences that are notoriously difficult to detect and investigate. It included the provision of information concerning the conduct of NYK and other persons and entities that otherwise may not have been discovered by the ACCC. The cooperation was provided despite the fact that NYK knew that immunity under the ACCC’s Immunity Policy for Cartel Conduct was unavailable because another member of the cartel had already obtained a “marker” under that policy. NYK has also provided information and assistance to the ACCC in another respect, though the detail of that cooperation is the subject of a confidentiality order (emphasis added).

3.2.3 Timeliness of assistance

A discount may not be awarded where the accused has deliberately delayed providing information for a lengthy period of time or has destroyed some relevant evidence, with the result that the information eventually supplied is of little effective value or benefit to the authorities. 28

3.2.4 Risk of danger or injury to offender or family

It is relevant to consider the risk of danger or injury to the offender and their family in retaliation or retribution for the offender’s co-operation. In C v The Queen [2013] NSWCCA 81, Hoeben JA (Adams and Beech-Jones JJ agreeing) upheld an appeal against sentence where the offender argued that the discount given failed to recognise that his co-operation had put him and his family at risk of reprisals. Hoeben JA stated at [37], [44]:

Not only was the assistance useful but as the applicant explained in his evidence, he was afraid both for himself and for his family that the fact of his assistance was known to the Mexican suppliers of the drug and that retribution would be sought against him and them. These fears were justified. They did not depend only upon the applicant’s evidence, but were supported by police evidence to similar effect. In that regard, the activities of the Mexican drug cartels in relation to such matters are notorious. I am satisfied that the assistance provided by the applicant has placed him and his family at real risk of harm from the suppliers of the drug.

Taking those matters into account, and in particular the significance of the applicant’s assistance and the resulting danger to which he and his family are exposed, I have concluded that the discount for assistance allowed by her Honour was inadequate and that the applicant will need to be re-sentenced (emphasis added).

3.2.5 Hardship

It is relevant to consider any hardship that may result from both the risk of reprisals against the offender, and that the offender may be placed in protective custody, when determining the extent of the allowance to be made for co-operation. 29

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3.3 Discount need not be applied to every offence under consideration

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 (David and Kelly JJ agreeing) refused an appeal against sentence where the sentencing judge applied a greater discount to the offender’s taxation offences than social security 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 (emphasis added). 30

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3.4 Value of assistance determined at time of sentencing

A sentencing judge is required to assess the value of assistance given and future assistance to be given at the time of sentencing. In FS v The Queen [2009] NSWCCA 301, the Court rejected an argument that the sentencing judge had erred in assessing the value of assistance. The offender argued that events subsequent to sentencing showed that the assistance provided was more valuable than was initially appreciated. In rejecting the offender’s argument, Rothman J (Cambell JA and Howie J agreeing) stated at [30]:

[T]he value of assistance is not undermined by an ex post facto realisation that evidence has been required to be given more often, or less often, than was originally appreciated. Nor does an eventual realisation (unavailable at the time of the sentence), that the assistance is of greater significance, result in error, or the capacity to quash the sentence on appeal.

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3.5 Voluntary disclosure of guilt to otherwise unknown offences.

Where the offender confesses to offences which were otherwise unknown to law enforcement authorities or provides the evidence necessary for a conviction, the offender may be given an additional reduction in sentence. 31

In Walker v The Queen [2008] NTCCA 7, the Court noted at [38]:

[W]ithout the appellant’s confession the appellant would not have had a case to answer. This is a consideration which adds considerable weight to the effect of the plea of guilty and cooperation with the authorities.

In R v Ellis [1986] NSWLR 603 the Court stated that the degree of leniency will vary according to the likelihood that the ‘guilt would be discovered and established were it not for the disclosure by the person coming forward for sentence’. 32

However in Ryan v The Queen [2001] HCA 21, McHugh J cautioned against applying the statement in Ellis as a rigid rule, stating at [15]:

The statement in Ellis that “the disclosure of an otherwise unknown guilt of an offence merits a significant added element of leniency” is a statement of a general principle or perhaps more accurately of a factor to be taken into account. It is not the statement of a rule to be quantitatively, rigidly or mechanically applied. It is an indication that, in determining the appropriate sentence, the disclosure of what was an unknown offence is a significant and not an insubstantial matter to be considered on the credit side of the sentencing process. How significant depends on the facts and circumstances of the case (emphasis added). 33

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3.6 Calculating a Discount for Past Co-operation

There is no ‘tariff’ discount for co-operation with law enforcement agencies. Rather, the extent of the discount depends on all the circumstances of the particular case. 34

3.6.1 Calculating discount where there is both co-operation and a guilty plea

The overall discount must not produce a sentence which is so lenient that it would be disproportionate to the objective gravity of the offence and the circumstances of the offender. 35 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, [combined] 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 (emphasis added). 36

In FS v The Queen [2009] NSWCCA 301, the Court held that the sentencing judge had unduly constrained the exercise of discretion in determining the combined discount where the judge had referred to a ‘standard deduction’ of 40% unless there were exceptional circumstances. 37

Rothman J (Campbell JA and Howie J agreeing) stated that where the offender will spend the sentence in more onerous conditions of imprisonment because of the assistance, the combined discount should be no more than 50% unless exceptional circumstances can be shown. Where the offender will not suffer more onerous conditions of imprisonment, the discount should be no more than 40% unless exceptional circumstances can be shown. 38 Rothman J added at [22]:

[T]here is no “standard deduction”. There is a percentage deduction to obtain a result, below which sentencing judges should not reduce a sentence, unless there are exceptional, or very exceptional, circumstances, because, inter alia, a “discount” of such magnitude would usually take the sentence to a level lower than could properly reflect the objective circumstances of the offence.

A combined discount exceeding 50% may be justified where the assistance is of an extraordinary kind or where information is disclosed that was otherwise unknown to the authorities. 39 However, such cases will be relatively rare and generally a 50% discount is appropriate for assistance of a very high order. 40

In R v Sukkar [2006] NSWCCA 92, a combined discount for the offender’s plea of guilty and co-operation with authorities of 45% 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 35% discount was substituted on appeal. 41

In DPP (Cth) v AB [2006] SASC 84, a combined discount for the offender’s co-operation and plea of guilty of 60% 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. 42 A combined discount of 40% was substituted. 43

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3.7 Specifying the discount 

There is no legislative requirement for the court to specify the discount that is provided for past co-operation (there is, however, for future co-operation under s 16AC(2)). The value of past co-operation is a sentencing factor which should be taken into account as part of the ‘instinctive synthesis’ approach to sentencing. In R v Gallagher (1991) 23 NSWLR 220, Gleeson CJ noted at [228]:

It must often be the case that an offender’s conduct in pleading guilty, his expressions of contrition, his willingness to co-operate with the authorities, and the personal risks to which he thereby exposes himself, will form a complex of inter-related considerations, and an attempt to separate out one or more of those considerations will not only be artificial and contrived, but will also be illogical. 44

It is accepted that it may be inappropriate to specify separate discounts for co-operation and a guilty plea.

In DPP (Cth) v AB [2006] SASC 84,  Perry J (Nyland and Layton JJ agreeing) stated at [66]:

[W]here 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.

However, in some jurisdictions the Court may be required or encouraged to separately state the extent of the discount given for the guilty plea. 45 In such circumstances the discount given for past co-operation ‘is a mitigating circumstance to be taken into account with other general factors’ 46 and need not be specified. However, it is permissible to separately state the extent of the discount for past co-operation and this is not inconsistent with the ‘instinctive synthesis’ approach. 47

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4. Future Co-operation

Section 16AC relates to future co-operation and enables the Commonwealth Director of Public Prosecutions to appeal a sentence reduced in return for promised future assistance where the offender fails to comply with that undertaking.

Where the severity of a federal sentence, order, or a non-parole period is reduced because the offender has undertaken to co-operate in proceedings relating to any offence, the court must, outline the discount awarded:

Section 16AC(2)

(a)  state that the sentence, order or non-parole period is being reduced for that reason; and

(b)  specify the sentence that would have been imposed, the order that would have been made or the non-parole period that would have been fixed but for that reduction. 48

Section 16AC applies where the offender has undertaken to co-operate in proceedings including ‘confiscation proceedings’. ‘Confiscation proceedings’ are defined in s 16AC(5).

4.1 Requirement of an ‘undertaking’

In order for the requirement under s 16AC to be triggered, the offender must give an ‘undertaking’ falling within s 16AC.  ‘Undertaking’ has the ‘ordinary meaning of a pledge or a promise’. 49

An ‘indication’ of future co-operation by the offender is not enough to receive a discount on sentence. In Cavill v The Queen [2014] WASCA 77, the offender’s ‘indications that there could be future co-operation,’ 50 was held to be insufficient and did not amount to an ‘undertaking’. In Jaafar v The Queen [2017] NSWCCA 223, Price J (Lonergan J and Hoeben CJ at CL agreeing) held that the offender received no discount for the ‘indication of future assistance as it is far too uncertain as to whether it will occur or be of value’. 51

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4.2 Compliance with s 16AC

Past and future co-operation should be considered separately. It is only future co-operation with which s 16AC is concerned. 52 As Tate JA (Williams AJA and Harper JA agreeing) stated in DPP (Cth) v Couper [2013] VSCA 72, [146]:

[I]t is important for the administration of justice that there be clarity as to the reduction given for the undertaking to co-operate as there is scope within the Crimes Act 1914 (Cth), under s 21E(3), for an appeal to be brought by reason of a breach of the undertaking … [t]his necessitates an understanding of precisely what reduction was given for the undertaking to co-operate.

The requirement to specify the discount has been described as a ‘mathematical approach’ rather than the preferred ‘instinctive synthesis’. 53 However, in FS v The Queen [2009] NSWCCA 301, Rothman J suggested that there was no conflict between the requirements of former s 21E and an ‘instinctive synthesis’ approach, stating at [12]:

It is not inconsistent with an intuitive synthesis for a sentencing judge to specify the amount of discount for the utilitarian value for a plea of guilty and the level of assistance to law enforcement authorities, and to specify, as did the sentencing judge on this occasion, the particular value of future assistance as is required under s 21E of the Act. That, of course, depends upon the proposition that the process does not become or amount to a two-stage process of the kind to which the High Court referred in Wong, by which the Court assesses, for example, the “objective” sentence and then adjusts that sentence by some mathematical value for each of a number of features including perhaps the subjective elements of an offender. The Court is required to take account of a guilty plea and the degree of assistance to law enforcement agencies (s 16A(2)(g) and (h) of the Act), and these may, if granted, be deducted from the sentence that would otherwise be imposed and which is derived by intuitive synthesis (emphasis added).

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4.3 Complying with s 16AC and a requirement to quantify guilty plea discount

In some jurisdictions the Court may be required or encouraged to separately state the extent of the discount given for the guilty plea. For example, in Victoria, a Court may be subject to both s 16AC and the accepted requirement under s 6AAA of the Sentencing Act 1991 (Vic) to specify the sentence which would have been imposed but for the plea of guilty. Where this is the case, a sentencing judge should specify what sentence would have been imposed but for the undertaking to co-operate and the plea of guilty, and identify the specific reduction which has been given with respect to each of those matters. 54

For example, in DPP (Cth) v Couper [2013] VSCA 72, the Court upheld an appeal against sentence where the sentencing judge had declared the sentence they would have imposed but for the plea of guilty, and then declared the sentence they would have imposed but for the undertaking to co-operate. However, the sentencing judge did not indicate how the two discounts related to each other, such that the declarations did not unequivocally indicate the period of time that was discounted for the undertaking to co-operate. Tate JA (Williams AJA and Harper JA agreeing) stated at [141]:

Clearly, what is significant to an offender and provides guidance for future cases is the actual reduction from which the offender has benefited as a result of having given an undertaking to co-operate, and, separately, the actual reduction from which the offender has benefited as a result of having given a plea of guilty. For this purpose, a sentencing judge should identify the number of months (or days, weeks, or years) from which an offender has benefited both by co-operating and by pleading guilty (emphasis added).

The DPP argued that the order in which the sentencing judge applied the respective discounts involved a methodological error in that her Honour should have first addressed the former s 21E future co-operation discount, and then addressed the s 6AAA discount for the plea of guilty. However, the Court held that it would be wrong to consider that there is only one sequence that is faithful to the requirements of the two sections. Tate JA (Williams AJA and Harper JA agreeing) continued at [144]:

In some circumstances … the reduction in the sentence given for the undertaking to co-operate may be specified first before the reduction for the plea of guilty; in other circumstances … it may be more appropriate to indicate the reduction given by reason of the plea of guilty before indicating the reduction to reflect the undertaking to co-operate. Whichever sequence is adopted, it is important that the actual sentence imposed reflects the fact that the offender has had the benefit of both forms of reduction. A way of ensuring this has occurred is to indicate plainly … what discount is referable to the undertaking to co-operate and what discount is referable to the guilty plea (emphasis added).

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4.4 Failure to co-operate in accordance with undertaking

Section 16AC(3) and (4) are relevant where an offender fails to comply with an undertaking to provide future co-operation.

4.4.1 DPP may appeal against sentence where offender has failed to comply with undertaking to co-operate

Section 16AC(3) allows the Director of Public Prosecutions to appeal against the inadequacy of a sentence, order or non-parole period where it is in the interests of the administration of justice because an offender has failed to provide promised co-operation, without reasonable excuse.

The DPP must show that a federal sentence, order or non-parole period has been fixed, and that it was reduced because the offender had undertaken to co-operate as described in s 16AC(1) and following sentence, the offender, without reasonable excuse, has failed to co-operate in accordance with the undertaking.

The appeal may take place after the offender is no longer under sentence. This was not possible under former s 21E, which permitted an appeal by the DPP only ‘at any time while the offender is under sentence’. 55 The position under former s 21E was altered in November 2015 by Schedule 7 to the Crimes Legislation Amendment (Powers, Offences and Other Measures) Act 2015 (Cth). The Explanatory Memorandum states:

The amendment under new section 16AC will expand a prosecution authority’s ability to appeal against the inadequacy of a sentence or non-parole period in circumstances where an offender is no longer under sentence. 56

The DPP must be of the opinion that it is in the interests of the administration of justice to institute the appeal: s 16AC(3)(b). 57

4.4.1.1 Definition of ‘reasonable excuse’

It is for the court to determine whether an offender has failed to co-operate ‘without reasonable excuse’. 58 The onus is on the DPP to satisfy the court beyond reasonable doubt that the offender’s failure to co-operate was without reasonable excuse. 59

In DPP (Cth) v Haunga [2001] VSCA 73, Tadgell JA considered the meaning of ‘reasonable excuse’ at [12]:

The only fair inference to be drawn from such information as there was is that the respondent was frightened or apprehensive about the consequences to him (or perhaps others) of his giving evidence. That, however, cannot by itself be treated as a “reasonable excuse” in terms of s. 21E…the jeopardy in which the respondent would or could place himself by giving evidence was one of the factors that would have led the sentencing judge to reduce the sentence that he would otherwise have imposed. The inevitable conclusion must therefore be that the facts demonstrate an absence of reasonable excuse for the respondent’s failure to co-operate in accordance with his sworn undertaking (emphasis added). 60

A general fear of threats made in custody is not enough to meet the standard of a ‘reasonable excuse’. 61 Button J (R A Hulme J and Gleeson JA agreeing) held in R v MI [2018] NSWCCA 251 at [50]–[53] that:

Turning to apply what can be gleaned from that brief conspectus to this case, I think that this matter falls very much toward the end of the spectrum that encompasses the natural and expected consequences of giving an undertaking to give evidence against another offender.

In my opinion, it does not come anywhere near the unusual circumstances that pertained in [R v Cheun [2011] NSWCCA 5]. As can be seen from the evidence given by the respondent on the voir dire, his change of heart was motivated by nothing more than a general fear of “a few” threats made in custody, and the respondent himself was unable to determine whether they were “genuine or not”.

Furthermore, in my opinion, threats made to the respondent before the giving of the undertaking, and the provision of the discount, have little or no relevance to the question, for the simple reason that they did not operate upon the mind of the respondent to deter him from agreeing to cooperate with the authorities in the first place.

In short, in my opinion the Crown has established beyond reasonable doubt that the respondent did not have a reasonable excuse for his at least partial failure to comply with his undertaking (emphasis added).

4.4.2 Resentencing following failure to comply with undertaking to co-operate

Section 16AC(4) governs the approach to be taken by the court where an offender has failed to co-operate in accordance with an undertaking:

  • Section 16AC(4)(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, order or non-parole period that would have been imposed but for the reduction.

Button J (R A Hulme J and Gleeson JA agreeing) in R v MI [2018] NSWCCA 251 held that restraint should be exercised when determining that an offender ‘failed entirely’ to co-operate with the undertaking. Button J stated at [63]–[64] that:

Turning to my determination of this second issue, in my opinion, as a matter of simple objective fact, the respondent partially complied with his undertaking when he provided the further statement, despite its brevity. Whilst it is true that, in light of his refusal to give evidence, that statement was ineffectual in assisting the prosecution, I think that one should adopt a position of abundant caution towards such a question. In other words, in considering whether the basis for mandatory intervention that admits of no amelioration regarding the quantum of increase in sentence has been established, I think that one should exercise restraint in affirmatively finding that failure to comply with an undertaking has been “entire”.

 

In short, although the result may seem attenuated from the practical reality of criminal litigation, I do not believe that it can be said that the respondent here failed entirely to comply with his undertaking, in light of the provision of the statement in accordance with it. I think that he partially failed to comply with his undertaking, in that he almost completely failed to do so (emphasis added).

  • Under s 16AC(4)(b) where the person has failed in part to co-operate, the court may substitute a sentence, order or non-parole period, not exceeding that which could be fixed under s 16AC(4)(a) as it thinks appropriate.

4.4.2.1 Considerations upon re-sentencing for non-co-operation

The purpose of s 16AC(4) is not to punish the offender for failing to co-operate, but rather to restore the original sentence. 62 In R v Vo [2006] NSWCCA 165, McClellan CJ at CL (Hislop and Johnson JJ agreeing) explained the operation of former s 21E(3) at [38]:

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 (emphasis added).

In DPP (Cth) v Johnson [2012] VSCA 38, the Court commented on the discretion granted by former s 21E(3)(b) where the offender had failed in part to co-operate. Hollingworth AJA (Maxwell P and Cavanough AJA agreeing) stated at [23] that:

In DPP (Cth) v Haunga (2001) 4 VR 285 it was held that the proper exercise of the jurisdiction granted by s 21E(3)(b) requires the making of a value judgment, and the striking of a balance, in order to determine what sentence is appropriate, in the light of the relevant events that have happened since the imposition of the original sentence.  The court does not reconsider the appropriateness of the original sentence.  Rather, it substitutes a sentence that properly reflects all relevant circumstances surrounding the respondent’s failure to co-operate in accordance with the undertaking that led to the reduced sentence (emphasis added).

In Johnson, the offender argued that the Crown had adopted inconsistent positions at the plea and on appeal for non-co-operation. The Crown had argued that the assistance was of minimal value, whereas on appeal it argued that the breach led to the need to abandon a charge against a co-offender. The Court of Appeal rejected the offender’s argument, stating at [28]–[30] that:

First, we are not concerned with the consequences of the respondent’s failure to comply with her undertaking. That is to say, it is not our role to determine whether her failure to give evidence did in fact necessitate the dropping of the conspiracy charge, or was in fact the reason for that occurring.

 

Secondly, the different assessments of the importance of the respondent’s evidence were given almost two years apart. It is not uncommon for the evidence of a particular witness to assume greater or lesser importance, as preparation for a criminal prosecution proceeds. There is no suggestion, and no evidence, that the Crown did not genuinely make different assessments of the importance of the respondent’s evidence, at her plea and at Loan’s trial, so as to make this appeal “unfair” in some way.

 

Finally, relying on the Crown’s assessment of the limited value of the respondent’s undertaking, the learned sentencing judge gave her a smaller sentencing discount than she might otherwise have given.  So, having now breached the undertaking, the respondent faces a more limited increase in sentence than she would have faced, had the sentencing judge proceeded on the basis that the respondent’s evidence was critical to the prosecution of Loan [co-offender]. That is to the respondent’s benefit (emphasis added).

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Notes:

  1. s 16AC was introduced by schedule 7 to the Crimes Legislation Amendment (Powers, Offences and Other Measures) Act 2015 (Cth), replacing the former s 21E.
  2. Such as those imposed under ss 19B, 20(1)(a), 20(1)(b), 20AB(1AA) and fines. See further Explanatory Memorandum, House of Representatives, Crimes Amendment (Powers, Offences and Other Measures) Bill 2015, 68.
  3. See below: 4.2 Compliance with s 16AC.
  4. See also R v Ngui [2000] VSCA 78, [3] (Winneke P, Callaway and Buchanan JJA agreeing).
  5. Crimes Act 1914 (Cth) s 16.
  6. ‘Law enforcement agency’ is given express definitions for the purposes of Parts IAB, IAC and IACA, although the definitions in those parts vary slightly.
  7. Ungureanu v The Queen [2012] WASCA 11, [5] (McLure P, Buss JA agreeing), [84] (Murphy JA).
  8. Ungureanu v The Queen [2012] WASCA 11, [71]–[72] (Murphy JA).
  9. Ungureanu v The Queen [2012] WASCA 11, [74] (Murphy JA).
  10. R v Falconer [2018] NSWSC 1765, [133] (Adamson J).
  11. R v Falconer [2018] NSWSC 1765, [133] (Adamson J).
  12. Crimes (Sentencing Procedure) Act 1999 (NSW) s 23.
  13. Crimes (Sentencing) Act 2005 (ACT) s 36.
  14. Australian Law Reform Commission, Same Crime, Same Time: Sentencing of Federal Offenders, Report No 103 (2006) [11.58].
  15. R v El Hani [2004] NSWCCA 162, [73]. See also R v Barrientos [1999] NSWCCA 1, [45] –[47] (Abadee J, Sheller JA agreeing); Assafiri v The Queen [2007] NSWCCA 159, [23] (Howie J, Basten JA and Grove J agreeing); Ungureanu v The Queen [2012] WASCA 11, [30]–[31] (Murphy JA, McLure P and Buss JA agreeing); R v de Figueiredo [2013] QCA 303, [41] (Muir JA, Gotterson JA and Philippides J agreeing).
  16. Ungureanu v The Queen [2012] WASCA 11, [31] (Murphy JA, McLure P and Buss JA agreeing) quoting A Child v Western Australia [2007] WASCA 285, [12] (Wheeler and McLure JJA).
  17. R v Cartwright (1989) 17 NSWLR 243, 253 (Hunt and Badgery-Parker JJ); MA v The Queen [2001] WASCA 325, [114] (Roberts-Smith J, Templeman J agreeing); Ungureanu v The Queen [2012] WASCA 11, [33] (Murphy JA, McLure P and Buss JA agreeing).
  18. Aboud v The Queen [2017] NSWCCA 140, [57] (Harrison J, Macfarlan JA and Johnson J agreeing).
  19. R v Asaad [2017] QCA 108, [58] (Fraser and Philippides JJA and Jackson J).
  20. R v Gillett [2019] ACTSC 30, [52]–[53] (Loukas-Karlsson J).
  21. Ungureanu v The Queen [2012] WASCA 11, [35] (Murphy JA, McLure P and Buss JA agreeing).
  22. Ungureanu v The Queen [2012] WASCA 11, [35] (Murphy JA, McLure P and Buss JA agreeing).
  23. MA v The Queen [2001] WASCA 325, [1], [62], [112]–[114]; Ungureanu v The Queen [2012] WASCA 11, [33] (Murphy JA, McLure P and Buss JA agreeing).
  24. R v El Hani [2004] NSWCCA 162, [73].
  25. R v Z [2006] NSWCCA 342, [89].
  26. DPP (Cth) v Nippon Yusen Kabushiki Kaisha [2017] FCA 876, [264] (Wigney J).
  27. DPP (Cth) v Nippon Yusen Kabushiki Kaisha [2017] FCA 876, [267] (Wigney J).
  28. Assafiri v The Queen [2007] NSWCCA 159, [23] (Howie J, Basten JA and Grove J agreeing).
  29. DPP (Cth) v AB [2006] SASC 84, [42]; C v The Queen [2013] NSWCCA 81, [37]–[38]. See: Hardship resulting from assistance to authorities.
  30. See also Isaac v The Queen [2012] NSWCCA 195, [35]–[46] (Garling J, Hoeben JA and Latham J agreeing).
  31. See Walker v The Queen [2008] NTCCA 7, [38].
  32. The ‘Ellis principle’ has been frequently applied in federal sentencing: see, eg, Hartman v The Queen [2011] NSWCCA 261, [99]; Johnson v The Queen [2014] VSCA 286, [55] (Santamaria J, Weinberg J agreeing).
  33. See further, state sentencing case CMB v Attorney-General of NSW [2015] HCA 9 where the High Court affirmed Ellis and Ryan in the context of similar state sentencing provision, s 23 of the Crimes (Sentencing Procedure) Act 1999 (NSW).
  34. R v Gallagher (1991) 23 NSWLR 220, 234 cited in Ungureanu v The Queen [2012] WASCA 11, [32] (Murphy JA, McLure P and Buss JA agreeing).
  35. See R v Sukkar [2006] NSWCCA 92, [54] (Latham J, McClellan CJ and Howie J agreeing); Isaac v The Queen [2012] NSWCCA 195, [48] (Garling J, Latham J and Hoeben JA agreeing).
  36. See also Isaac v The Queen [2012] NSWCCA 195, [48] (Garling J, Latham J and Hoeben JA agreeing).
  37. FS v The Queen [2009] NSWCCA 301, [8] (Rothman J, Campbell JA and Howie J agreeing).
  38. FS v The Queen [2009] NSWCCA 301, [21] (Rothman J, Campbell JA and Howie J agreeing).
  39. SZ v The Queen [2007] NSWCCA 19, [52]. The principles from the state sentencing case of SZ v The Queen [2007] NSWCCA 19 have been frequently applied in federal sentencing. See, eg, Shi v The Queen [2014] NSWCCA 276, [114] (Bellew J, Leeming JA and Fullerton J agreeing); DPP (Cth) v Afiouny [2014] NSWCCA 176, [50] (Garling J, Price and Harrison JJ agreeing); C v The Queen[2013] NSWCCA 81, [35] (Hoeben JA, Beech-Jones and Adams JJ agreeing); Isaac v The Queen [2012] NSWCCA 195,[56] (Garling J, Latham J and Hoeben JA agreeing).
  40. R v Sukkar [2006] NSWCCA 92, [54]. See also R v KAK [2013] QCA 310, [48]–[49] (Muir JA, Holmes and Fraser JJA agreeing).
  41. R v Sukkar [2006] NSWCCA 92, [56].
  42. DPP (Cth) v AB [2006] SASC 84, [90]–[94]. See further: Hardship to the Offender.
  43. See also DPP (Cth) v Afiouny [2014] NSWCCA 176, [46]–[59] (Garling J, Price and Harrison JJ agreeing) where the combined discount of 60% was deemed excessive where the offender had pleaded guilty early and the assistance was ‘of a high order’, and was substituted for a discount of 50%. See commentary: Hardship resulting from assistance to authorities; Guilty Plea.
  44. See also R v Baldock [2010] WASCA 170, [49] (Pullin JA and Kenneth Martin J); FS v The Queen [2009] NSWCCA 301, [10] (Rothman J, Campbell JA and Howie J agreeing); R v Tan (1995) 78 A Crim R 300, 303 (Phillips CJ); DPP (Cth) v Johnson [2012] VSCA 38, [20]–[21] (Hollingworth AJA, Maxwell P and Cavanough AJA agreeing).
  45. See further: Guilty Plea.
  46. R v Baldock [2010] WASCA 170, [49] (Pullin JA and Kenneth Martin J). See also R v Tan (1995) 78 A Crim R 300, 303 (Phillips CJ).
  47. FS v The Queen [2009] NSWCCA 301, [12] (Rothman J, Campbell JA and Howie J agreeing). See also Stephen J Odgers, Sentence (Longueville, 2nd ed, 2013) 327.
  48. Note: Judicial interpretation of former s 21E(1) held that it also applied where a recognizance release order was reduced for future co-operation: DPP (Cth) v Haunga [2001] VSCA 73, [10].
  49. See Cavill v The Queen [2014] WASCA 77, [29], [94]–[95], considering former s 21E.
  50. Cavill v The Queen [2014] WASCA 77, [97] (Mazza JA, Pullin JA agreeing).
  51. Jaafar v The Queen [2017] NSWCCA 223, [111].
  52. R v Allan; Ex parte DPP (Cth) [2016] QCA 270, [33]. Judicial interpretation of former s 21E held that a single discount incorporating both past and future co-operation failed to comply with former s 21E: R v Vo [2006] NSWCCA 165, [33]; R v Tae [2005] NSWCCA 29, [19].
  53. See Markarian v The Queen [2005] HCA 25, [39] (Gleeson CJ, Gummow, Hayne and Callinan JJ); AB v The Queen [1999] HCA 46, [13] (McHugh J); Wong v The Queen [2001] HCA 64, [76] (Gaudron, Gummow and Hayne JJ). See also Sentencing Methodology.
  54. DPP (Cth) v Couper [2013] VSCA 72, [144] (Tate JA, Williams AJA and Harper JA agreeing) (considering former s 21E).
  55. R v YZ [1999] NSWCCA 48, [36] (Sully and Dunford JJ) (considering former s 21E).
  56. Explanatory Memorandum, House of Representatives, Crimes Amendment (Powers, Offences and Other Measures) Bill 2015, 30.
  57. R v YZ [1999] NSWCCA 48, [36] (Sully and Dunford JJ) (considering former s 21E).
  58. R v YZ [1999] NSWCCA 48, [29], [40], [44].
  59. R v Springer [2009] NSWCCA 144, [45].
  60. See also R v Cheun [2011] NSWCCA 5 where the Crown failed to establish beyond reasonable doubt that the offender failed without reasonable excuse to comply with the undertaking. The offender refused to comply when he became aware that that his mother’s address was disclosed to his co-offenders by the prosecution and was concerned about the consequences for their safety.
  61. R v MI [2018] NSWCCA 251, [51] (Button J, R A Hulme J and Gleeson JA agreeing).
  62. R v Vo; R v Tran [2006] NSWCCA 165, [38] (McClellan CJ at CL, Hislop and Johnson JJ agreeing); R v Dehghani; ex parte Cth DPP [2011] QCA 159, [12] (Wilson JA, Lyons and Martin JJ agreeing); DPP (Cth) v Johnson [2012] VSCA 38, [24] (Hollingworth AJA, Maxwell P and Cavanough AJA agreeing) (considering former s 21E).