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This article was written by Andrew Fraser - Managing Associate - Canberra

Andrew works in the areas of criminal law and traffic law, providing practical advice in all of his clients’ matters. Andrew has, over many years, developed positive working relationships with prosecutors, magistrates and judges. His no-nonsense approach means he has a reputation for putting forward the best case possible for clients. Andrew has won many matters for his clients, including...

Will v The Queen: Sentencing Discount For Assisting Authorities (ACT)


When an offender gives information to police and the courts in relation to criminal offences committed by others, this can lead to significant discounts on the sentence they receive.  In the recent ACT Court of Appeal decision of Will v The Queen, the issue arose as to whether the person giving vital information about other offending was doing so voluntarily or not. This article outlines that decision.

Will v The Queen (No 2) [2021] ACTCA 14, Chief Justice Murrell and Justice Charlesworth found in a joint judgment that assistance had to be voluntary for the accused to get the benefit of a sentencing discount, while Justice Loukas-Karlsson found that it did not. This meant that the appellant before the court did not get the sentence discount he was seeking.

The facts of Will v The Queen

In Will v The Queen, the appellant, Mr Will, had recruited two other men to rob a prominent Canberra club of its weekend takings of approximately $150,000. Mr Will did not attend the robbery but received $40,000 of the proceeds, the same amount as each of the two men who went to the club, one with a shotgun, holding up the security truck and shooting one of the guards. A fourth person, “the inside man”, who had knowledge of the timing of the pickup by the security truck, received $15,000.

The Procedural steps in Will v The Queen

Mr Will was examined by the Australian Crime Commission and gave evidence inculpating himself. He was charged with the robbery by way of common criminal enterprise and was committed to the Supreme Court for trial.

He tried unsuccessfully to have the prosecution permanently stayed on the basis that the compulsory ACC examination would make his trial so unfair as to be an abuse of process. He then pleaded guilty and was sentenced to 10 years and 10 months imprisonment, with a non-parole period of six years.

The unarmed co-offender was sentenced to nine years imprisonment with a non-parole period of four years and six months. The co-offender who shot the guard was sentenced to a total of 15 years imprisonment. Mr Will gave assistance to authorities during the trial of this co-offender.

The Assistance given to authorities in Will v The Queen

Mr Will made admissions to the ACC only after he was confronted with records of electronic surveillance.

He was subpoenaed to give evidence in the trial of the shooter. He resisted but gave the assistance sought after the prosecutor referred to the information given by Mr Will in the compulsory ACC examination. His evidence included the following.

  • He had spoken with “the inside man” and had obtained details of large sums being collected from the club.
  • He had organised a robbery of money collected from that club.
  • He had recruited the other two robbers, giving them information about the truck’s “time and place”.
  • He had not known about a getaway car and had learned about it only some days later.
  • He had not known about the shooting until some days after the robbery when he read about it in a newspaper.  He did not discuss it with the co-offenders.
  • He did not know the source of the gun.
  • He had introduced the other two robbers to each other.
  • Some days after the robbery, he had received his share of the proceeds from the shooter.

The judge in the shooter’s trial told the jury that Mr Will’s evidence was “important to say the least, and paramount perhaps”. Without it, the Crown’s direct evidence case “collapsed”.

The Majority View

Chief Justice Murrell and Justice Charlesworth questioned whether the evidence given under subpoena could be classified as “assistance”. They dissected the provisions of the ACT’s Crimes (Sentencing) Act 2005 and looked also at the Commonwealth Crimes Act 1914 and considered many NSW and High Court cases.

They concluded:

“In our view, primacy must be given to the public interest of promoting willing cooperation.  Voluntariness or willingness does not merely go to the extent of discount; it is essential to enlivening the discretion to award a discount …

“Our primary finding is that there was no voluntariness or willingness associated with the evidence that the appellant gave at the [shooter’s] trial such as would enliven the discretion [to give a discount on sentence] under Section 36 of the Sentencing Act, properly construed.”

The Dissenting View

Justice Loukas-Karlsson noted that the original sentencing judge had not been asked by counsel for Mr Will to consider a discount and so “no discount was considered for the appellant’s assistance to either the administration of justice or to law enforcement authorities”.

Her Honour then examined statutory interpretation at some length, looking at both High Court case law and the ACT’s Legislation Act, finding that not only did the Crimes (Sentencing) Act not define “assistance”, nothing in the wording of the relevant section “circumscribes the type of assistance that falls within the provision”.

Noting that the relevant section was similar to NSW law, Her Honour then canvassed a line of NSW Court of Criminal Appeal authority which had found “that the meaning of assistance is relatively expansive” and noting further that the NSW provision had not been construed narrowly by the High Court.

Quoting the relevant ACT legislative provisions Her Honour found, “In my view, in this case the “offender” has “assisted”, “law enforcement authorities” in “a proceeding in relation to the offence or any other offence” …

“There is nothing in the text of the statute … which expressly or by necessary implication provides that assistance cannot be provided by an offender subpoenaed to give evidence before a court. While voluntariness will be a factor to be considered by a sentencing court, it is not a necessary prerequisite for the provision to have effect …

“This does not, of course, mean that a discount will result in every case. It is a discretion not an obligation …

“The community benefits from the fact that truthful evidence is given, whether voluntary or not, whether under subpoena or not.”

Such benefit could have allowed for the court to have imposed a lesser penalty on the person providing that evidence.

If you require legal advice or representation in any legal matter, please contact Armstrong Legal. 

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