By Matthew Drogemuller and Ugur Nedim
Where appropriate, criminal lawyers are required to advise clients that helping police with their inquiries may result in a reduced sentence.
That said, lawyers are certainly permitted to explain the potential risks and requirements associated with giving assistance. For example, police don’t always do what they promise – whereas they may assure a defendant they will provide a detailed ‘letter of comfort’ (to be handed-up to the court) outlining the assistance provided, police may ‘change their mind’ after using a defendant for information, saying things like ‘we already had most of that information’. Of course, there is also the cautionary phrase ‘snitches get stitches’.
Types of assistance
Assistance may come in the form of giving information about a crime a person was not involved in, or implicating co-accused, or even confessing to a crime which might not otherwise have been solved. It may simply involve speaking with authorities about others involved in a crime, all the way up to testifying against them on the witness stand.
For example, a person charged with drug supply might give information about others involved in the enterprise, or someone charged with fraud might explain the enterprise and lead authorities to others.
The legislative power to provide sentencing discounts for assistance is contained in section 23 of the Crimes (Sentencing Procedure) Act 1999 (the Act).
Subsection (1) states that:
‘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.’
Subsection (2) lists the factors to be taken into account when determining the extent of any discount, which include:
- the significance and usefulness of the assistance,
- the truthfulness, completeness and reliability of the information,
- the nature and extent of the assistance,
- the timeliness of the assistance,
- any benefits the offender may gain by reason of the assistance,
- whether the offender will suffer harsher custodial conditions as a result of assisting,
- any actual or risk of injury resulting from the assistance,
- whether the assistance concerns the offence for which the offender is being sentenced or an unrelated offence,
Although the court has discretion over the extent of any sentencing discount, it must impose a sentence proportionate to the offence committed regardless of the nature and extent of assistance provided.
According to the Judicial Commission, typical discounts range from 5% to 30%, depending on the above factors.
Discount must be quantified
Subsection 23(4) of the Act requires the sentencing judge to quantify any sentencing discount by:
- indicating that a lesser penalty is being imposed,
- stating the penalty that would otherwise have been imposed, and
- stating the amount by which the penalty has been reduced.
A recent case in the NSW Court of Criminal Appeal (CCA) found that a discount for assistance can be higher than the ‘typical’ range.
On 13th May 2016, the CCA delivered a judgment in respect of an appeal against the severity of a sentence handed-down for a murder conviction.
The appellant, Adam Panetta, murdered Muhammed Shafique on 18 September 2008 but his involvement only came to light when he attended Dee Why police station on 12 November 2010 and confessed. Mr Panetta’s assistance was ‘extremely valuable’ because:
“[p]rior to the appellant handing himself in, there was no suspicion held by police that the victim’s disappearance was suspicious, let alone that he had been murdered, and the appellant was not a suspect in any way concerning his disappearance.”
On 7th March 2014, Panetta was sentenced by the Supreme Court to a prison term of 17 years with a non-parole period of 12 years and 9 months. In handing down that sentence, the judge applied a 10% discount for Panetta’s guilty plea but did not quantify the discount for assistance. That failure was the basis for the appeal.
On appeal, the CCA confirmed the 10% discount for Panetta’s guilty plea, then found that a 50% discount for assistance was appropriate given the ‘high level of assistance’. The Court noted that it would be unusual for a combined discount (for guilty plea and assistance) to be higher 50%, but found it would not necessarily be in error for applying such a high aggregate discount.
However, it determined that a 60% discount would make the sentence ‘unreasonably disproportionate to the nature and circumstances of the offence’, and ultimately applied a 50% combined discount.
It assessed Mr Panetta’s starting sentence at 24 years, but reduced it to 12 years with a 9 year non-parole period after applying the discount.