Wei v R [2025] NSWCCA 150
Wei v R [2025] NSWCCA 150 · Read the judgment on AustLII
Catchwords: Sentencing – Commonwealth matters – discounts for cooperating with authorities
Where an offender is being sentence for a Commonwealth offence, and they have cooperated with authorities, this decision has drawn attention to the importance of a need for separate conclusions about what discount (if any) should be allowed by reason of the assistance.
The applicant pleaded guilty to a range of Commonwealth offences. He worked at the Australian Taxation Office and, in relation to an audit on which he was working, he received a $100,000 cash bribe. As a result he took steps which were highly favourable to the company being audited, so that the company benefited on the order of millions of dollars in avoidance of tax and penalties. The applicant also accessed restricted data over 500 times in relation to that entity. In relation to another associate, the applicant made over 900 unauthorised searches, looked into the business affairs of a competitor of the associate and passed on some information, and provided taxation advice to the associate using information the applicant obtained as a result of his employment.
The applicant eventually participated in an interview with police with the purpose of providing assistance to police in relation to his associates in his offending, one of whom was, at the time of the applicant being sentence, still pending trial. However, according to investigators the interview did not provide any new information. The applicant was sentenced to imprisonment for 5 years, with a non-parole period of 2 years, 6 months. As part of that sentence the sentencing judge allowed a discount of 25%, which was said to be for the plea of guilty but also ‘incorporate[d] any assistance he has provided to police’; he declined to allow a further discount. The applicant appealed on grounds including that the judge had erred in his approach to the discount for cooperation with authorities.
As a Commonwealth offence, the sentence fell to be determined particularly by reference to Crimes Act 1914 (Cth) s 16A, which sets out a range of sentencing factors which are to be taken into account. Section 16A(2)(g) refers to the plea of guilty, whereas s 16A(2)(h) refers to ‘the degree to which the person has cooperated with law enforcement agencies in the investigation of the offence or other offences’. Undertakings for future assistance to authorities are dealt with separately in the Crimes Act 1914, and do not arise in this case.
The Court (Free JA; Leeming JA and N Adams J each agreeing, each with brief additional remarks) observed that it was common ground between the parties that as a matter of law the discount for an early guilty plea attracts distinct considerations from those attracted by any discount in recognition of assistance to law enforcement authorities (at [32]-[33]). Relatively recent authority (Xiao v R (2018) 96 NSWLR 1; [2018] NSWCCA 4) holds that a sentencing court is entitled to take into account the objective utilitarian value of a plea of guilty, along with the extent to which it may demonstrate contrition or remorse, as well as a subjective willingness on the part of the offender to facilitate the course of justice (at [34]). Cases ranging back as far as 1989 have discussed the rationale in allowing some discount where there has been assistance to authorities, including that it is a means of encouraging people to provide information which will permit the apprehension and prosecution of other offenders. The benefits to the administration of justice of offenders being willing to inform are such that some discount should be allowed where there is frank disclosure of information which, so far as the offender is concerned, is unknown to the authorities, even if it turns out that the information is ineffective. In a Commonwealth sentencing context, as with a plea of guilty, it is not necessary to provide a discrete and quantified discount for past assistance (at [35]-[39]). Despite the overlap, there may in some cases be a degree of overlap between considerations that arise from a plea of guilty and consideration of past assistance to authorities. For example, both might be indicators of contrition and remorse on the part of the offender (at [40]).
In the present case, the letter of assistance from the senior investigator in the case described the level of assistance provided by the applicant as ‘minimal’, providing little that investigators had not already known, and said that investigators were not able to identify any new lines of inquiry as a result of the information (at [44]).
The question in this case is whether there was an inappropriate merging of the considerations arising from the plea of guilty and the considerations arising from past assistance, with the result that there was a failure to give the applicant the benefit of a discount for the past assistance, or at least a failure to consider whether there ought to be such a discount (at [45]).
On the appeal, the Crown had submitted (probably contrary to authority, so the Court here found) that there was in substance no assistance provided, such that s 16A(2)(h) was not engaged. As identified above, an offender may cooperate with law enforcement authorities, even if the information turns out to be of little or no significance to investigators (at [49]).
In the present case, the clear implication of the language used by the sentencing judge was that, despite its limitations, the assistance did warrant at least some degree of reduction in sentence, but whatever it was considered to be it was ‘incorporated’ within the 25% discount that had otherwise been described as being attributable to the early plea of guilty. This merging of the considerations in the way the sentencing judge did had the practical effect that the favourable consideration linked to past assistance was not otherwise brought to bear in the instinctive synthesis (at [52]-[53]).
Although this ground of appeal and another were both upheld, no lesser sentence was warranted in law, so the appeal was ultimately dismissed.