Section 25D establishes inflexible temporal limits governing the degree of discount available at specified procedural intervals in the committal and trial process, and imposes graduated discounts based on the timing of the entry or indication of a guilty plea: Gurin v R [2022] NSWCCA 193 at [24], [26].

Section 25D(1) requires a sentencing court to apply a discount for the utilitarian value of a guilty plea, in accordance with the balance of the section, if the offender pleaded guilty before being sentenced. It is clear from the language of s 25D(1) that such discounts are made solely “for the utilitarian value of a guilty plea”: Doyle v R [2022] NSWCCA 81 at [18]. Remorse (s 21A(3)(i) Crimes (Sentencing Procedure Act)) and/or a willingness to facilitate the administration of justice (s 22A Crimes (Sentencing Procedure Act)) are conceptually distinct and must be considered separately: Doyle v R at [16]–[19].

Section 25D(2) Crimes (Sentencing Procedure) Act prescribes the following mandatory discounts for the utilitarian value of a guilty plea:

The “first day of the trial of an offender” is defined in s 25C(1) as:

The word “vacated” means adjourned before the trial commenced: Gurin v R at [27], [29]. The adjournment resets the clock, providing the offender with another opportunity to enter a guilty plea 14 days before the next day fixed for trial, but once the trial commences the opportunity for a 10% reduction is lost: at [29].

The mandatory discount scheme also applies to an offence the subject of an ex officio indictment or a count for a new offence added to an existing indictment where the offender pleads guilty as soon as practicable after the ex officio indictment is filed or the indictment is amended to include the new count: s 25D(3). However, the offender is not entitled to the 25% discount if:

Section 25D(4) forecloses the availability of large sentencing discounts when there are earlier opportunities for both parties to offer and negotiate a guilty plea. It would otherwise be inimical to the principle objective of the early appropriate guilty plea scheme to allow for the maximum discount to be available: R v Doudar [2020] NSWSC 1262 at [63]. “Substantially the same” in s 25D(4)(a) should be given its natural and ordinary meaning: [64]. In R v Doudar, the sentencing judge rejected a submission that a 25% discount should be given and concluded a 10% discount for a guilty plea to accessory after the fact for murder was appropriate, because that offence occurred within substantially the same factual and evidentiary matrix as the original murder charge for which the offender had been committed for trial: [63], [65], [67].

The scheme also applies to an offender who pleads guilty after being found fit to be tried and whose matter was not remitted to a magistrate for further committal proceedings: s 25D(5). A 25% discount is only available if the offender pleads guilty as soon as practicable after being found fit to be tried: s 25D(5)(a). In Stubbings v R [2023] NSWCCA 69, the court found the offender did not plead guilty as soon as practicable after he was found fit: [56].

In determining whether a plea was entered as soon as practicable, the court is to take into account whether the offender had a reasonable opportunity to obtain legal advice and give instructions to a legal representative: s 25D(6). In Stubbings v R, the court held that this evaluative assessment is made from the offender’s point of view, taking into account the time period which, viewed objectively, is appropriate or suitable in the circumstances: [51].

Section 25E provides for discounts where a guilty plea is made for a different offence but refused. The relevant discounts are set out in s 25E(3) and are available if the offender’s offer to plead guilty to a different offence was recorded in a negotiations document, was for an offence that was not “the subject of the proceedings” and was not accepted by the prosecutor:

The discounts prescribed in s 25E(3) are intended to operate as incentives to offenders to offer realistic pleas of guilty: Black v R [2022] NSWCCA 17 at [41].

A “negotiations document” is defined in s 25B to include a case conference certificate. In Ke v R [2021] NSWCCA 177, the court concluded it was unfair that the applicant’s sentence was discounted by 10%, and not 25%, following her guilty plea in the District Court to an offence of dealing with the proceeds of crime being reckless to that fact (Crimes Act 1900, s 193B(3)). She had offered to plead guilty to that offence before being committed for trial but it had been rejected. Nor was it recorded in the case conference certificate filed on committal as required by s 75 Criminal Procedure Act 1986. Bellew J (Adamson J agreeing; see also Brereton JA at [63] to similar effect) held that the phrase “an offer recorded in a negotiations document” in s 25E(2)(a) should be construed as meaning “an offer which was recorded or which was required to be recorded in a negotiations document” (emphasis added): at [339]. His Honour said, at [338], that accepting any other interpretation would:

The phrase “the offence the subject of the proceedings”, in s 25E(1)(b) and s 25E(2)(b), was considered in Black v R. Simpson AJA (Ierace and Dhanji JJ agreeing) concluded that it was clear that only one offence, the principal offence, was intended to be the subject of the proceedings, and that it was irrelevant that, for the purposes of the charge certificate, multiple offences may be “the subject of the proceedings”: [30]–[36]. This, her Honour observed, produced a fair result: at [38]. Denying a discount to an offender who had offered a realistic plea of guilty to an alternative charge, merely because it was specified in either the charge certificate or case conference certificate, undermines the purpose for which the reduction was prescribed, and was potentially unfair: at [41].

Despite the mandatory terms of s 25D(1), s 25F provides that the court can refuse to give a discount or a reduced discount if:

If a case conference certificate was filed, the prosecutor cannot submit that no discount should be given unless the defence was notified of the prosecution’s intention to do so either at or before the conference: s 25F(3).

In R v Thomson and Houlton (2000) 49 NSWLR 383 Spigelman CJ (Wood CJ at CL, Foster AJA, Grove and James JJ agreeing) set out the following guideline at [160]:

The range of discount referred to in R v Thomson and Houlton is a guideline only. In a given situation it creates no presumption or entitlement to a particular discount: R v Scott [2003] NSWCCA 286 at [28]; R v Newman [2004] NSWCCA 113 at [12] and R v Araya [2005] NSWCCA 283 at [44].

In R v Borkowski [2009] NSWCCA 102, Howie J (McClellan CJ at CL and Simpson J agreeing) at [32] summarised the following “principles of general application” when a sentence is discounted for a guilty plea:

The trial judge erred in R v Borkowski by giving the offender a 25% utilitarian discount for a guilty plea taken at first arraignment when the discount should not have been more than 15%.

Bathurst CJ in R v AB [2011] NSWCCA 229 at [3], said courts should “... generally continue to follow the approach in R v Borkowski … the principles have to be applied by reference to the particular circumstances in any case”.

The discount for a plea is not fixed and may be eroded as a result of the manner in which the sentence proceedings are conducted: per Johnson J at [33]; Bathurst CJ at [2] agreeing. AB was given a “generous” (at [24]) 25% discount for a guilty plea entered in the Local Court following a significant dispute on sentence which was resolved against him.

The position in relation to principle 5 in R v Borkowski is now that reflected in Panetta v R [2016] NSWCCA 85 that any Ellis discount must be numerically quantified. See Voluntary disclosure of unknown guilt at [12-218].

As to principle 6, when an aggregate sentence is imposed a separate discount must be applied to each indicative sentence: Bao v R [2016] NSWCCA 16 at [41], [44]. See Aggregate sentences below.

As to principle 7, a discount for the guilty plea was withheld in Milat v R [2014] NSWCCA 29 at [92] on the basis of the extreme circumstances of the murder. The range of cases where no discount may be given extends to those where the sentence imposed is less than the statutory maximum: Milat v R at [72], [75]. The plurality in R v El-Andouri [2004] NSWCCA 178 at [34] purported to confine the circumstances in which a plea will not warrant any discount to cases where the protection of the public requires a long sentence, or for which the maximum sentence is appropriate notwithstanding the plea. However, this statement is merely a gloss on the guideline judgment in R v Thomson and Houlton (2000) 49 NSWLR 383 and has the potential to misrepresent what the Chief Justice actually said: Milat v R at [81], [83]. Spigelman CJ did not define a closed category of cases but merely acknowledged there will be cases where the discount is withheld: Milat v R at [84].

Principle 8 in R v Borkowski, generally applies subject to Bathurst CJ’s statement in R v AB at [3] that it is permissible for a court in specific instances to have regard to the reason for the delay in the guilty plea. In Shine v R [2016] NSWCCA 149, the applicant at no time denied committing the offence but awaited the outcome of a psychiatric evaluation before entering a plea: at [95]. A similar situation occurred in Haines v R [2016] NSWCCA 90. In both cases a utilitarian discount of 25% was warranted in the circumstances notwithstanding the timing of the plea: Shine v R at [95]; Haines v R at [33].

As to principle 9 in R v Borkowski, where the delay in the guilty plea is caused by the offender’s legal representative and is not the fault of the offender, its utilitarian value is not undermined: Atkinson v R [2014] NSWCCA 262. The whole history of the matter can be considered in assessing the utilitarian value of the plea: Samuel v R [2017] NSWCCA 239 at [60]. In Samuel v R, the 8-year delay between the offender absconding (after being charged) and his guilty plea in the Local Court, meant his plea could not be characterised as “early”. The delay caused unnecessary expenditure of resources and a loss of efficiency for the criminal justice system: at [57]–[59].

The guideline encouraged transparency in decision-making and favours expressly quantifying the discount (often expressed as a percentage reduction in the otherwise appropriate sentence) when the court takes a guilty plea into account in sentencing: R v Thomson and Houlton (2000) 49 NSWLR 383.

In R v Lawrence [2005] NSWCCA 91, Spigelman CJ said at [15] that the reason for issuing the guideline:

Although quantification of the discount is preferable, a failure to do so does not by itself establish error: R v Simpson (2001) 53 NSWLR 704 at [82]–[83]; R v DF [2005] NSWCCA 259 at [15]; R v Henare [2005] NSWCCA 366 at [26].

Whether a failure to explicitly state that a guilty plea has been taken into account indicates it was not given weight depends on the circumstances of the particular case and the content of the reasons: Woodward v R [2014] NSWCCA 205 at [6]. Where there is a real possibility the plea was not properly considered, failure to refer to the issue in the judgment should be treated as a material error: Lee v R [2016] NSWCCA 146 at [37].

Where a court imposes an aggregate sentence, the discount for the guilty plea must be stated for each indicative sentence, not the aggregate sentence: Elsaj v R [2017] NSWCCA 124 at [56]; PG v R [2017] NSWCCA 179 at [71]–[76]; Berryman v R [2017] NSWCCA 297 at [29]. However, in Davies v R [2019] NSWCCA 45, the court held it was entirely appropriate for the sentencing judge to apply an across-the-board discount in the circumstances of that case where there was no or little information about the plea negotiations for each offence and the pleas were eventually entered at the same time: at [47].

In Cameron v The Queen (2002) 209 CLR 339, the majority of the High Court refined the test for taking into account a plea of guilty: at [12]. In their joint judgment, Gaudron, Gummow, Callinan JJ said at [14]:

According to the majority, a plea of guilty may be taken into account in mitigation of sentence if it evidences a willingness on the part of the offender to facilitate the course of justice and not simply because the plea saves the time and expense of those involved in the administration of criminal justice: at [19]. This is a subjective test and requires more than simply deciding whether economic benefits flow from the plea.

In R v Sharma (2002) 54 NSWLR 300 the court held that the reasoning of the majority in Cameron v The Queen concerning the application of general sentencing principles, in the context of a WA statute, was not applicable in NSW because the common law principles enunciated there had been modified by statute: at [38]. The court found that the proper construction of s 22 Crimes (Sentencing Procedure) Act 1999 permits the sentencer to take into account the objective utilitarian value of the plea: at [62]. Spigelman CJ (with whom Mason P, Barr, Bell and McClellan JJ agreed) said at [52]:

Thus a court must take the plea into account even if there is no subjective intention to “facilitate the administration of justice”, as explained in Cameron v The Queen. The principles outlined in R v Thomson and Houlton (2000) 29 NSWLR 383, regarding the weight to be given to the utilitarian value of the plea, for saving the expense of a “contested hearing”, must therefore be given their full force.

The court also held that there was nothing in the NSW Act that expressly or implicitly referred to the common law requirement of “equal justice”. While the court did not doubt the application of this principle in NSW, it was not a principle that must be invoked to construe s 22 restrictively, in the absence of any indication to the contrary: R v Sharma (2002) 54 NSWLR 300 at [65]. There was nothing in Cameron v The Queen that called into question the ability of a State Parliament to adopt a form of differentiation which may be, or appear to be, “discriminatory” in the sense that the words were used in Cameron v The Queen: at [67].