There is no doubt that he will be held in difficult conditions."
9 His Honour then dealt with the factors that his Honour took into account in assessing the level of discount and listed: the offender's early plea of guilty; the limited expressions of remorse (which his Honour said would not be given "any much weight"); the assistance which the offender has offered, "but which is judged 'medium' (and [the judge] consider[s] that to be placed at a rather high level); and also that he is going to be kept in isolation …, kept in high security with good reasons for fear for his own safety". On the basis of the foregoing, his Honour considered that "there should be an overall reduction in his sentence of 40%, of which [the judge] consider[s] that 5% would relate to any future assistance offered pursuant to s 21B." [The reference to s 21B seems to have been intended to be a reference to s 21E of the Crimes Act 1914 (Cth) ("the Act").]
10 It is strictly unnecessary to specify the total discount for assistance or, as it is usually expressed, for assistance and the plea of guilty. It is necessary, pursuant to the terms of s 21E of the Act, to specify the amount by which a sentence or non-parole period is to be reduced in order to take account of an undertaking by the offender to cooperate with law enforcement agencies in proceedings, i.e. future assistance.
11 There is more than one method by which an appropriate sentence can be derived and the method adopted by a sentencing judge will depend upon the circumstances of the offence and the offender. The discount for assistance has often been the catalyst for the expression of the difference of approach between intuitive synthesis and a more mathematical approach: see Markarian v R [2005] HCA 25; (2005) 228 CLR 357 at 375 [39]; AB v R (1999) HCA 46; [1999] 198 CLR 111; Wong v R [2001] HCA 64; (2001) 207 CLR 584 at 611-612.
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, supra, 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.
13 Discount for the plea of guilty in a Commonwealth offence is for the willingness to facilitate the course of justice: Cameron v R [2002] HCA 6; (2002) 209 CLR 339 at [19]. It does not include issues such as remorse that may be evidenced by the plea. It should still be assessed in the range of 10% to 25% and the range is still determined by the timing of the plea: Cameron, supra.
14 Assistance to authorities in the prosecution of offences is a public benefit and a public duty. Nevertheless, in the sentencing process, leniency is extended to offenders for assistance to authorities. It is not an uncommon practice. That leniency takes into account a number of factors, which were summarised in the High Court in the following manner:
"[3] It is common sentencing practice to extend leniency, sometimes very substantial leniency, to an offender who has assisted the authorities, and, in so doing, to take account of any threat to the offender's safety, the conditions under which the offender will have to serve a sentence in order to reduce the risk of reprisals, and the steps that will need to be taken to protect the offender when released. The relevant principles are discussed, for example, in R v Cartwright (1989) 17 NSWLR 243 and R v Gallagher (1991) 23 NSWLR 220. Atkinson J gave the appellant credit for her assistance to the authorities, her early plea of guilty, and other personal factors of no present relevance, in a combination of two ways. She imposed a lesser term of imprisonment than would otherwise have been the case (but not lesser to an extent that she considered would of itself fully recognise such factors), and she suspended the sentence. Her reasoning made it clear that, if she had not suspended the sentence, she would have fixed a shorter term of imprisonment." ( York v R [2005] HCA 60; (2005) 225 CLR 466; (2005) 79 ALJR 1919 per Gleeson CJ.)
15 His Honour Chief Justice Gleeson referred, after the passage cited immediately above, to two judgments of the Court of Criminal Appeal that discuss the relevant principles. In one of them, R v Gallagher (1991) 23 NSWLR 220, Gleeson CJ observed:
"Those last-mentioned matters may, depending upon the circumstances, be very difficult to separate from other considerations which might arise quite apart from the matter of assistance to the authorities. In this case, for example, the appellant was entitled to receive, and received, credit for pleading guilty, and for the contrition which that plea of guilty reflected. It was also said to be to his credit that he had good prospects of rehabilitation. It seems hardly likely that these were subjective matters which were entirely separate from the matter of his assistance to the authorities. 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."
16 The calculation of the amount of any such discount has developed over the last decade. Thus, in R v Pang [1999] NSWCCA 4; (1999) 105 A Crim R 474, Wood CJ at CL with whom Meagher JA and Barr J agreed, observed that:
"There is no fixed tariff for the reduction that should be given for assistance, and so far no guideline judgment has been delivered in this area. However, the discount customarily given in this State for assistance, has ranged between 20 and 50 percent of the sentence that would otherwise have been imposed."
It should be pointed out, that the reference to percentage discounts for assistance is a reference to a combined percentage discount for both assistance and the utilitarian value for the plea of guilty associated with it: see R v M [2005] NSWCCA 224, per Buddin J, with whom James J and I agreed.
17 The matters associated with a level of discount were discussed by the Court of Criminal Appeal in SZ v Regina [2007] NSWCCA 19, in which the Court made it clear that a combined discount for pleas of guilty and assistance should not normally exceed 50% and that discounts exceeding 50% should be reserved for very exceptional circumstances.
18 In SZ v Regina, Buddin J, with whom Simpson J and Howie J agreed, said:
"[52] I acknowledge, as did Latham J in Sukkar (supra), that there will be cases in which a combined or composite discount of more than 50% is called for. There may well be a case in which the assistance proffered is of a quite extraordinary kind. Alternatively there may be a case in which the offender is entitled to an additional discount, in accordance with the principles enunciated in R v Ellis (1986) 6 NSWLR 603, on account of having disclosed information which was otherwise unknown to the authorities. Indeed, composite discounts in excess of 50% have been allowed on several occasions when this Court has proceeded to re-sentence following a successful appeal by an offender. See, for example, R v NP (supra); R v OPA [2004] NSWCCA 464 and R v AMT [2005] NSWCCA 151.