What is the "Ellis Discount"? Discounting a criminal sentence where the accused voluntarily disclosed the crime to the unknowing authorities

Published 14 Jul 2016
Dominic Maley

Remorse is a paramount consideration in the law of sentencing criminal matters. Entering a plea of guilty demonstrates contrition. This is recognised by established principle, and the defendant is given a discount on the sentence they would otherwise have received. Assisting investigators by disclosing an offence the investigators were otherwise not aware of is a further consideration for the courts when discounting a sentence.

1. Discount for entering a plea of guilty.

Every person has the right to plead not guilty, and it is impermissible at law for a person to be given any additional punishment by virtue of them having defended the matter at trial (see Siganto (1998) 194 CLR 656, at 663–664 [22]).

On the other hand, if a person pleads guilty, s 22 of the Crimes (Sentencing Procedure) Act 1999 obliges a court to take this factor into consideration, and allows the court to impose a discounted sentence. Pleading guilty is demonstrative of remorse, and has the "utilitarian" benefit of saving time, money, cross-examination of witnesses and so on.

If a plea is entered at the first available opportunity, the defendant will usually be given a discount of up to 25% in accordance with the principles of R v Thomson & Houlton (2000) 49 NSWLR 383. The later the plea is entered, the lower the percentage of discount.

2. Discounting a criminal sentence where the accused voluntarily disclosed the crime to the unknowing authorities: the Ellis discount.

In addition to showing remorse and contrition, voluntary disclosure has the added public policy consideration of increasing crime detection. Accordingly, the discount on sentence should be increased. This discount is known as the "Ellis Discount" and derives its name from the case of R v Ellis (1986) 6 NSWLR 603. The once common law rule is now enacted by s 23 of the Crimes (Sentencing Procedure) Act 1999.

Ordinarily, the discount applied will be "significant". According to Street CJ [at 604]: with whom Hunt and Allen JJ agreed. It reads as follows at 604:

"Where it was unlikely that guilt would be discovered and established were it not for the disclosure by the person coming forward for sentence, then a considerable element of leniency should properly be extended by the sentencing judge. ... the disclosure of an otherwise unknown guilt of an offence merits a significant added element of leniency, the degree of which will vary according to the degree of likelihood of that guilt being discovered by the law enforcement authorities, as well as guilt being established against the person concerned."

3. Quantum of Ellis Discount.

The Ellis discount is a factor of sentencing, and is qualified by considerations such as the likelihood of detection and whether other crimes had been detected. "It is not the statement of a rule to be quantitatively, rigidly or mechanically applied”: Ryan (2001) 206 CLR 267 per McHugh J at [15].

The Ellis discount on sentence can be increased to 50% when combined with the guilty plea. Seldom would there be a case which could justify a discount of 60% or more. See AAT v R [2011] NSWCCA 17 at [31].

Sentencing law is an area of law which is more complex than one may think. Contact Maclarens Lawyers on 9682 3777 for professional legal advice.