Sentencing Council

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Sentencing discount for facilitating the administration of justice

Supreme Court of NSW, 24 July 2018

R v Nikolovski [2018] NSWSC 1156

The offender was charged with murder and with robbery while armed with a dangerous weapon. In the trial before the Supreme Court, the jury was directed to acquit the offender at the close of the prosecution case. He subsequently pleaded guilty to the robbery charge.

In the sentencing hearing, the offender submitted that he should have a reduced sentence because his trial was conducted in an economical way. The Crimes (Sentencing Procedure) Act 1999 (NSW) gives a court the power to impose a lesser penalty on an offender who is 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)".

The sentencing judge did not allow a specific reduction for the offender's willingness to facilitate justice. While he accepted that the trial was conducted in a "practical and sensible fashion without needless forays into aspects of evidence that were of limited significance", he did not think that this was what parliament intended by providing for such a discount. The judge observed that, while counsel may have conducted the trial sensibly, the prosecution was still put to proof on all elements of the offence, and the offender advanced a positive defence.