Criminal division – sentencing

11.2.8.2 ‘Informer’s discount’

In R v QMN; R v WD [2004] VSCA 32 at [30]-[31] O'Bryan AJA said:

"It is sentencing principle that an informer is entitled to an informer’s discount when the circumstances of assistance given to the police are made known to the sentencing court. A substantial discount should be given to an offender who volunteers useful information about offences not known to the police: R v Macedo [unreported, Court of Criminal Appeal, 04/02/1993] at 7.

Leniency is extended to an informer, firstly because it is in the interests of the community to encourage informers, secondly because the informer is exposed to a risk in prison and within the community when the informer’s conduct becomes known: R v Shane Anthony Pividor and Bruce Alan Dale [2002] VSCA 174 at 7."
In R v Bright [2006] VSCA 147 at [11] Bongiorno AJA, with whom Buchanan & Nettle JJA agreed, said:

“Co-operation with authorities in the prosecution of other criminals is a mitigating factor of a high order. The discount given to a person who pleads guilty and assists or offers to assist in other prosecutions is sometimes extremely large indeed, particularly perhaps in a drug case. See R v Ritter [2000] VSCA 135 and R v Rostom [1996] 2 V.R. 97.”

In R v DS [2005] VSCA 99 the Court of Appeal re-sentenced the appellant, allowing a substantial discount for her assistance to the authorities, her giving of evidence in court and her provision of an undertaking to provide co-operation to the authorities in the future. At [19] Chernov JA (with whom Batt & Vincent JJA agreed) noted in relation to “the obviously significant help that she has provided to the police and immigration authorities” that “serving a term of imprisonment will be of particular difficulty for the appellant given her cultural background and isolation in Australia”.
In DPP v Karipis [2005] VSCA 119 at [9] the Court of Appeal considered the 17 year old respondent’s willingness to supply information regarding his co-offenders was relevant even though the information was of no real assistance.
R v Mr Z [2005] VSC 90 may well represent the high-water mark for discounts for past & promised future assistance to the authorities. In sentencing Mr Z to 3 years’ imprisonment wholly suspended for 3 years upon his pleading guilty to a charge of trafficking in a commercial quantity of amphetamine, Teague J said at [8]:

“Your choice to assist the authorities has several implications. It warrants a very large reduction in the sentence imposed for purely utilitarian reasons dictated by the public interest. It is now imperative that you be provided with a high level of protection. If it had not been for the co-operation, past and future and the other mitigating factors, you would have been sentenced by me to a period of imprisonment of at least eight years. Given the significance of the co-operation and other matters, it was understandable that, at the plea hearing, [the prosecutor] should say that a sentence of imprisonment, wholly suspended, was within the range of appropriate sentencing dispositions.”

In R v DJ [2007] VSCA 148 at [14]-[15] Maxwell P said:

“The passages which his Honour has read from the letter which was before the sentencing court underline the quite exceptional courage which the appellant has shown, and has been required over some years to continue to show. He has, in my view, performed a notable public service by giving evidence, on successive occasions, about a violent killing in jail. The risks of giving evidence in relation to a crime of that kind are well known.

There is a clear public policy behind encouraging, and recognising, that kind of cooperation in the solving of crime. Given that the evidence was in such strong terms about the quality of the assistance given, it was in my opinion incumbent on the sentencing court to identify very clearly the character of the assistance, to acknowledge its public importance, and to make quite clear that a significant discount has been applied.”
In R v Johnston [2008] VSCA 133 Nettle JA (with whom Buchanan & Ashley JJA agreed) pointed out at [16]-[19] that generally Victorian courts have not quantified the informer discount:

[16] “By and large courts in this state have been loath to quantify the amount of such informer discount as they may allow. Despite observations of McGarvie J in R v Perrier (No 2) [1991] 1 VR 717 and R v Nagy [1992] 1 VR 637, 644-5 as to the desirability of identifying the extent of the discount, other judges have castigated the idea as inconsistent with the notion of intuitive synthesis (Ibid. 638 Crockett J, with whom Phillips J agreed); R v Schioparlan and Georgescu (1991) 54 A Crim R 294, 305 (Young CJ). More recently, this Court has recognised that it may be acceptable to identify the amount of a discount in some circumstances: R v ZMN (2002) 4 VR 537, 542 (Charles JA). But in R v Markarian (2005) 228 CLR 357,375 the majority of the High Court restricted such occasions to simple cases in which, for example, the circumstances of the crime have to be weighed against one or a small number of other important matters. See too R v Sahari [2007] VSCA 235 at [18] per Kellam J. This is not such a case. It is a complex case in which the need for denunciation, general deterrence and just punishment must be weighed against the social utility of granting substantial sentencing discounts to offenders who agree to inform: R v Su [1997] 1 VR 1,77.

[17] Following Markarian, Parliament amended the Sentencing Act 1991 to require sentencing judges to state the sentence and non-parole period which but for a plea of guilty would have been imposed: s.6AAA. But those amendments say nothing of the additional discount which is to be allowed for a plea of guilty and cooperation with the Crown…

[18] There is also a further difficulty that, in the absence of legislative prescription or authoritative appellate pronouncement, there is no necessarily correct amount of the informer discount in a given case. While there are decisions which suggest a discount of 50%, or perhaps even as much as two thirds (see e.g. R v Perrier (No 2) [1991] 1 VR 717, 726 (McGarvie J), it is inevitable that circumstances will differ between cases. For example, in some cases the quality of information which an informer is able to provide to authorities may be of such limited utility that any discount would be thought of as excessive: R v Cartwright (1989) 17 NSWLR 243, 252-3; R v Su [1997] 1 VR 1, 78-9. In others, it could be that the information which the informer is able to provide is so valuable, and the risks to which he may expose himself by informing are so great, that a discount of 50% would not be enough: R v Lindstrom [2008] NSWCCA 160 at [58]-[60]. Other relevant considerations include the nature and gravity of the crime, the offender's moral culpability, prevalence and the need for deterrence of the crime in question (R v Downie and Dandy [1998] 2 VR 517, 520–522; cf R v Lim and Ko [1998] VSCA 54 [31]–[34]) and whether it is perceived that there is a need to encourage offenders to inform against other offenders concerning crimes of that kind.

[19] Under a more perfect sentencing regime, the level of informer discount might be worked out as a matter of social policy and provided for expressly in legislation. But as it is, sentencing judges must make do with their own conceptions of what is desirable. Effectively, the only safeguard is the relatively rough and ready measure of manifest excessiveness or inadequacy as a ground of appeal.”
See also R v Crossley [2008] VSCA 134 where Ashley JA (with whom Buchanan & Nettle JJA agreed) after quoting with approval some of the above dicta of Nettle JA in R v Johnston said at [31]: “In this instance, I think that the informer’s discount should be accounted considerable, though not of the highest order.”
Other cases in which an informer’s discount has been discussed include R v Gavin James Brown [2005] VSC 63 and the cases cited therein by Whelan J at [9]: R v Culleton [1999] VSC 478; R v Drummond [2000] VSC 206; R v Rees [2002] VSC 37; R v Newton [2002] VSC 182; R v Miller [2002] VSC 456; R v Stanbury [2003] VSC 93; R v Hewitt [2004] VSC 487 at [12]; R v Hentschel [2005] VSC 6 at [11]-[12]; R v Tania Lee-Anne Herman [2005] VSC 234 at [11]; R v Miller [2006] VSCA 140 at [11]; R v Tame Kohonui [2007] VSC 180 at [36]; R v John Kohunui [2007] VSC 181 at [34]; R v Herbert [2007] VSC 264 at [16] & [20]; R v EDB [2008] VSCA 18 at [13]; R v Koumis & Ors [2008] VSCA 84 at [13]-[18]; R v CP [2008] VSCA 272 at [16]-[17].