Assistance to Authorities (NSW)

When a person who is suspected of involvement in criminal offending renders assistance to the authorities, this may be recognised if they are subsequently found guilty of and sentenced for an offence. This page deals with assistance to authorities in the sentencing process in New South Wales. 

Legislation

Under section 23 of the Crimes (Sentencing Procedure) Act 1999, a court may impose a lesser penalty that it would otherwise have imposed in consideration of the extent to which the accused has assisted authorities in the prevention, detection or investigation of the offence or in proceedings relating to the offence.  

In deciding whether to impose a lesser penalty for the offence, the court may consider:

• the significance and usefulness of the offender’s assistance
• the truthfulness, completeness or reliability of the information they have provided
• the nature and extent of their assistance
• the timeliness of their assistance
• any benefits that they gained by providing assistance
• whether they will suffer harsher custodial conditions as a result of giving assistance
• any injury or risk of injury they suffered as a result of giving assistance
• whether the assistance relates to the offence for which they are being sentenced or to an unrelated offence.

This provision states that when a court imposes a lesser penalty because of assistance to authorities, the penalty imposed must not be disproportionate to the offence. The court must state the penalty that would otherwise have been imposed and the amount it has been reduced because of assistance to authorities.

Types of assistance

There are two main ways that an offender or suspect can assist the authorities in investigating an offence. They can confess their involvement in the offending, or they can provide evidence about the involvement of one or more other people.

Confessions

A person who confesses to an offence will usually be entitled to a sentencing discount after they have been found guilty of the offence by a court. The amount of the sentencing discount that is extended to them will depend on the circumstances under which they confessed their involvement.

If a person confesses to a crime spontaneously, when the police had no suspicion that they were involved in the matter, they will likely be extended a greater discount than where there was a significant amount of evidence against them and they were likely to be found guilty of the offence anyway.

There are other advantages to approaching the police of your own accord to make a confession. If a person spontaneously admits to an offence, they are also more likely to be granted bail on favourable terms. They can avoid the embarrassment of being arrested, and can obtain legal advice before speaking to the police or even have their lawyer accompany them to the police station.  

Giving evidence against others

A person suspected of or charged with an offence may also choose to assist the police by giving evidence against others involved in the offending. In some cases, this may occur spontaneously, and in other cases, negotiations with the prosecution may result in an agreement that an accused person will provide evidence against co-accused persons.

In some cases, the prosecution may agree to withdraw charges if an accused person agrees to testify against other accused persons. This is particularly likely to occur in cases where the person’s evidence is the only way the prosecution is likely to secure convictions against other offenders. In other cases, the fact that an accused person has testified against other accused persons will be taken into account as a mitigating factor at sentencing.

It is important to obtain legal advice before giving evidence against other suspects to ensure you are fully aware of how this is likely to affect the outcome in your matter.

R v Ellis

In the 1986 New South Wales Court of Criminal Appeal decision of R v Ellis, the court found that considerable leniency should be extended  when a person voluntarily discloses information to authorities that has been essential to securing a conviction. In that case, Street, Hunt and Allen JJ said:

“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. … 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.”

The Ellis discount can be as much as 50% of the sentence in a case where assistance to authorities was given and the person pleaded guilty. However, it is to be calculated with reference to the likelihood of detection of the crime and whether other crimes had been detected.

If you require legal advice or representation in any legal matter, please contact Go To Court Lawyers.