Assistance to Authorities

When a person provides assistance to Police or other authorities that are investigating an offence, the assistance provided by the offender can be taken into account by the Court when determining the appropriate sentence for the offender. This article discusses two ways assistance to authorities can be considered and used in a sentence to justify a lesser penalty being imposed. 

Confessions – R v Ellis (1986) 6 NSWLR 603:

A person is entitled to a significant discount on a sentence if they inform Police about their unlawful actions when the Police had no reason to suspect the person had done anything wrong. 

This discount for assistance comes from the case of R v Ellis (1986) 6 NSWLR 603 which established the ‘Ellis Principle’ or an ‘Ellis Discount’. In the matter of Ellis the Court held that an offender who voluntarily discloses their involvement in serious crime about which the Police had no knowledge was entitled to a “significant added element of leniency”. In R v Ellis, not only did the respondent plead guilty, but he voluntarily disclosed to Police for the first time his involvement in seven armed robberies. The ‘size’ of the discount to be applied depends on how likely the offender was to be discovered without making the confession.

Assistance to Authorities – Section 23 Crimes (Sentencing Procedure) Act 1999:

Section 23 of the Crimes (Sentencing Procedure) Act 1999 allows a Court to impose a lesser penalty than it would otherwise imposed on an offender when having regard to the degree that the offender assisted law enforcement with the prevention, detection or involvement for an offence. While a lesser penalty can be imposed, the penalty must not be unreasonably disproportionate to the nature and circumstances of the offence. 

In determining whether to impose a lesser penalty for the offence, the Court must consider the following matters:

1. The significance and usefulness of the offender’s assistance to the authority taking into consideration any evaluation by the authority of the assistance rendered, 
2.  The truthfulness, completeness and reliability of any information or evidence provided by the offender, 
3. The nature and extent of the offender’s assistance or promised assistance, 
4. The timeliness of the assistance or undertaking to assist, 
5. Any benefits that the offender has gained or may gain by reason of the assistance or undertaking to assist,
6. Whether the offender will suffer harsher custodial conditions as a consequence of the assistance or undertaking to assist,
7. 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,
8. Whether the assistance or promised assistance concerns the offence for which the offender is being sentenced for an unrelated offence.

Practical Risks and Considerations:

Before providing any assistance to authorities it is important to speak with one of our experienced criminal lawyers. The benefit of a lesser penalty due to assistance must be considered and weighed against the risk of incrimination of any further offending that the Police may not be aware of, as well as weighing up personal risks in doing so. 

There are some precautionary measures that can be explored to protect you in the event that you are considering giving assistance to authorities like Induced Statements, Immunities and protection for witnesses but this needs to be done and negotiated with the relevant prosecuting authority BEFORE the assistance is given.