Published by Geoff Harrison | 17 February 2025
At common law, a guilty plea is generally taken into consideration as a mitigating factor for several reasons, such as a sign of remorse and what is also known as the 'utilitarian value' of the plea, i.e. saving the State the inconvenience and expense of a hearing or trial and also saving the witness from having to give evidence. However, several factors impinge upon the plea of guilty and the discount, including the jurisdiction, i.e. whether a matter is dealt with on indictment or not, and other factors such as:
The timing of the plea.
The strength of the prosecution case.
Objective seriousness of the offence.
Moral culpability of the offender.
If the offence is dealt with on indictment, then a statutory regime or mandatory discounts apply to the sentence subject to the timing of the plea as per s25D of the Crimes (Sentencing Procedure) Act 1999.
Other Sources:
Cases:
Extracted Legislation:
Crimes (Sentencing Procedure) Act 1999
21A AGGRAVATING, MITIGATING AND OTHER FACTORS IN SENTENCING
(1) General In determining the appropriate sentence for an offence, the court is to take into account the following matters--
(a) the aggravating factors referred to in subsection (2) that are relevant and known to the court,
(b) the mitigating factors referred to in subsection (3) that are relevant and known to the court,
(c) any other objective or subjective factor that affects the relative seriousness of the offence.
The matters referred to in this subsection are in addition to any other matters that are required or permitted to be taken into account by the court under any Act or rule of law.
(3) Mitigating factors The mitigating factors to be taken into account in determining the appropriate sentence for an offence are as follows--
...
(k) a plea of guilty by the offender (as provided by section 22 or Division 1A)....
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 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.
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