[2025] SASC 195

Prosecution: THE KING In Person Counsel: MR J KHOR - Solicitor: DIRECTOR OF PUBLIC PROSECUTIONS (SA) Defendant: PAUL DAMIAN SHINNICK In Person via AVL Counsel: MR S ROCHE - Solicitor: LEGAL SERVICES COMMISSION (SA) Hearing Date/s: 21/10/2025, 31/10/2025 File No/s: SCCRM-25-023578 B SUPREME COURT OF SOUTH AUSTRALIA (Criminal) DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment. The onus remains on any person using material in the judgment to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court in which it was generated. R v SHINNICK [2025] SASC 195 Reasons for Ruling of the Honourable Justice Gray 26 November 2025 CRIMINAL LAW - SENTENCE - INTERPRETATION OF SENTENCING PROVISIONS CRIMINAL LAW - SENTENCE - RELEVANT FACTORS - RESPONSE TO CHARGES - PLEA OF GUILTY This matter concerns the application of s 40 of the Sentencing Act 2017 (SA) ('the Act') and the applicable discount in this particular case. The parties seek to rely on s 40(3)(b)(i) and s 40(4)(b)(v) of the Act to establish that the defendant, who entered a plea at his arraignment in the Supreme Court, was entitled to a discount of up to 15 per cent. Held, per Gray J: The prosecution was, for any reason outside of the control of the defendant, unable to finalise negotiations within a period commencing on the day after the defendant’s committal appearance in relation to the relevant offence or offences and ending immediately before the defendant is committed for trial. By application of s 40(4)(b)(v) and s 40(3)(c)(i) the applicable discount is 10%: at [64]. Criminal Law Consolidation Act 1935 (SA) s 11, s 23 and s 270A; Criminal Procedure Act 1921 (SA) s 110; Sentencing Act 2017 (SA) s 40, referred to. R v Alderson [2016] SASCFC 85; (2016) 125 SASR 375; Nguyen v The Queen [2022] SASCA 25; (2022) 140 SASR 554, applied. -- 1 of 16 -- -- 2 of 16 -- R v SHINNICK [2025] SASC 195 Criminal: Criminal GRAY J: Introduction 1 The defendant, Paul Damian Shinnick, has pleaded guilty to one count of aggravated causing serious harm with intent, contrary to s 23(1) of the Criminal Law Consolidation Act 1935 (SA) (‘CLCA’). The defendant stands to be sentenced by this Court for that offence. 2 At the hearing of this matter an issue arose concerning the applicable discount for the plea. The discount applicable is governed by s 40 of the Sentencing Act 2017 (SA) (‘the Act’). The defendant falls to be sentenced for a serious indictable offence within the meaning of that section by operation of s 40(8). Background 3 The defendant entered his plea on 1 September 2025 at the date listed for the not guilty plea arraignment in this Court. The matter was committed to this Court for trial in respect of an offence of attempted murder, contrary to ss 11 and 270A of the CLCA. The alternative charge on the information was the offence of aggravated causing serious harm with intent to cause serious harm, contrary to s 23(1) of the CLCA.1 The matter resolved by a plea to the offence of aggravated causing serious harm in satisfaction of the charge of attempted murder. The Director entered a nolle prosequi in respect of the attempted murder charge. Contentions of the parties 4 At the hearing of this matter on 21 October 2025 I raised the issue of the applicable discount in this case. The proposed agreed basis put forward by the parties was that a discount of up to 15% was applicable, pursuant to s 40(3)(b)(i) of the Act. 5 Section 40(3) provides: (3) Subject to this section, if a defendant has pleaded guilty to an offence or offences— (a) not more than 4 weeks after the defendant's first court appearance in relation to the relevant offence or offences—the sentencing court may reduce the sentence that it would otherwise have imposed by— (i) in the case of a serious indictable offence—up to 25%; or (ii) in any other case—up to 35%; or 1 Information dated 1 August 2025 (FDN 10). -- 3 of 16 -- [2025] SASC 195 Gray J 2 (b) more than 4 weeks after the defendant's first court appearance in relation to the relevant offence or offences but on the day of, or before, the defendant's committal appearance in relation to the relevant offence or offences—the sentencing court may reduce the sentence that it would otherwise have imposed by— (i) in the case of a serious indictable offence—up to 15%; or (ii) in any other case—up to 25%; or (c) during the period commencing on the day after the defendant's committal appearance in relation to the relevant offence or offences and ending immediately before the defendant is committed for trial for the offence or offences—the sentencing court may reduce the sentence that it would otherwise have imposed by— (i) in the case of a serious indictable offence—up to 10%; or (ii) in any other case—up to 15%; or Note— See also section 110(3) of the Criminal Procedure Act 1921. (d) during the period commencing immediately after the defendant is committed for trial for the relevant offence or offences and ending immediately after the first date fixed for the arraignment of the defendant in a superior court—the sentencing court may reduce the sentence that it would otherwise have imposed by— (i) in the case of a serious indictable offence—up to 5%; or (ii) in any other case—up to 10%; or (e) during the period commencing immediately after the first date fixed for the arraignment of the defendant in a superior court in relation to the relevant offence or offences and ending at the commencement of the defendant's trial for the relevant offence or offences—the sentencing court may, if satisfied that there is good reason to do so, reduce the sentence that it would otherwise have imposed by up to 5%. 6 Section 110(3) of the Criminal Procedure Act 1921 (SA) provides as follows:2 If the defendant advises the Court that negotiations are taking place with the prosecution, the defendant may, at any time within the period of 4 weeks after the committal appearance, have the matter called on in the Magistrates Court for the purpose of entering a guilty plea in relation to the charge (and in such a case the defendant will, for the purposes of this Act and the sentencing law, be treated as if the defendant had pleaded guilty at the committal appearance). 2 Section 40(3)(c) of the Act contains in a note a reference to s 110(3) of the Criminal Procedure Act 1921 (SA). -- 4 of 16 -- [2025] SASC 195 Gray J 3 7 The time periods stipulated in s 40(3) of the Act apply subject to what may be referred to as the ‘ameliorating’ provisions contained in s 40(4) of the Act. 8 Section 40(4) of the Act provides as follows: (4) If— (a) a maximum reduction available under subsection (3) does not apply in relation to a defendant's plea of guilty because the defendant did not plead guilty within the relevant period; and (b) the court is satisfied that the only reason that the defendant did not plead guilty within the relevant period was because— (i) the court did not sit during that period; or (ii) the court did not sit during that period at a place where the defendant could reasonably have been expected to attend; or (iii) the court did not list the defendant's matter for hearing during that period; or (iv) the court was, for any other reason outside of the control of the defendant, unable to hear the defendant's matter during that period; or (v) after the making of the charge determination (within the meaning of section 106 of the Criminal Procedure Act 1921)—the prosecution was, for any reason outside of the control of the defendant, unable to finalise negotiations with the defendant in relation to the plea during that period, the court may nevertheless reduce the sentence that it would otherwise have imposed as if the defendant had pleaded guilty during the relevant period. 9 In this case, the defence contended that s 40(4)(b)(v) is applicable and that Mr Shinnick was entitled to the available discount provided for of up to 15% pursuant to s 40(3)(b)(i).3 The prosecution accepted the defence’s contention that the maximum reduction of 15% is applicable in this case. However, the prosecution submitted that “it is the Court’s discretion as to whether section 40(4), and specifically section 40(4)(b)(v) of the Act applied.”4 The prosecution did not dispute the factual basis on which defence contended the applicable maximum discount was 15%.5 Factual history 10 By information dated 24 December 2024 filed in the Adelaide Magistrates Court, the defendant was relevantly charged with the following offences:6 3 Defendant’s Written Submissions dated 13 November 2025 (FDN 38) at [3] (‘FDN 38’). 4 Prosecution Written Submissions dated 13 November 2025 (FDN 37) at [7] (‘FDN 37’). 5 FDN 37 at [8]. 6 Information dated 24 December 2024 (FDN 1, MCCRM-24-051038). -- 5 of 16 -- [2025] SASC 195 Gray J 4 • Count 1: attempted murder, contrary to ss 11 and 270A of the CLCA; and, • Count 2: aggravated causing serious harm with intent, contrary to s 23(1) of the CLCA. This offence was laid as an alternative to count 1. 11 The defendant’s first court appearance was on 24 December 2024. The matter was adjourned to 1 April 2025 for charge determination hearing. 12 The matter was not called on in the interim. By operation of the Act, s 40(3)(a)(i) ceased to apply on 22 January 2025, being more than four weeks after the first court appearance. Following 22 January 2025, the applicable provision was s 40(3)(b)(i). As I have indicated above, s 40(3) operates subject to the operation of s 40(4). I will address s 40(4) later in these reasons. 13 Whilst the matter was not called on in the interim, brief material was filed and served by the prosecution and an appointment to see the defendant was made by his counsel, which occurred on 14 March 2025.7 More time was required for instructions, and a further appointment was booked for 21 March 2025. That appointment was cancelled 20 minutes prior to its scheduled commencement time.8 14 A further appointment was booked for 26 March 2025, which was cancelled. Again, a further appointment was booked for 28 March 2025, and the only available duration of appointment was 30 minutes.9 15 On 26 March 2025, the Director advised the defence that a charge determination had been made. On 28 March 2025, defence counsel attended an appointment with the defendant and instructions were taken as to the brief materials as at that point in time, and the charge determination made. Counsel was instructed to enter into negotiations to resolve the matter to the alternative charge, but some portions of the complainant’s statement were not agreed.10 16 Negotiations then commenced on 31 March 2025 by offering a plea to the alternative offence.11 This was communicated to the Court at the hearing on 1 April 2025, and remarks to that effect appear on the record of outcome.12 As both parties accepted, 1 April 2025 was the date of the committal appearance within the meaning of s 40(3)(b) of the Act. 17 The record of outcome for the hearing on 1 April 2025 recorded that a charge determination had been made, charging the same offences as appear on the 7 Defendant’s Further Written Submissions dated 13 November 2025 (FDN 39) at 2, [10] (‘FDN 39’). 8 FDN 39 at 2, [12]-[13]. 9 FDN 39 at 2, [15]. 10 FDN 39 at 2, [17]-[19]. 11 Prosecution’s Written Submissions dated 27 October 2025 (FDN 30) at 2, [5] (‘FDN 30’). 12 Record of Outcome dated 1 April 2025 (FDN 9, MCCRM-24-051038). -- 6 of 16 -- [2025] SASC 195 Gray J 5 information before this Court.13 An adjournment of 10 weeks was sought for answer charge. 18 Upon conclusion of the 1 April 2025 hearing, s 40(3)(b)(i) of the Act would have ceased to apply as that provision only applied ‘on the day of, or before, the defendant's committal appearance in relation to the relevant offence or offences.’ Following 1 April 2025, the applicable provision was s 40(3)(c)(i).14 19 The factual basis of the plea was queried by the Director on the same day, being 1 April 2025. Defence counsel awaited instructions before confirming any position, given that there was an appointment scheduled at 2:00pm that day, following the charge determination hearing. That appointment was cancelled less than an hour prior to its scheduled commencement time.15 20 An appointment was rebooked for 3 April 2025. That appointment was cancelled on the morning of the appointment. Defence counsel called Yatala Labour Prison to make enquiries as to the continued cancellation of appointments. A reason was unable to be confirmed, but administrative staff believed it was due to staffing issues.16 21 The next available appointment was on 9 April 2025 and an appointment at 9:00am that day was booked to attend in person. Upon arrival at Yatala Labour Prison, defence counsel was advised that the defendant was no longer housed there.17 When a query was made as to the defendant’s current status, defence counsel was advised that information about prisoners could not be disclosed without an express authority from that prisoner.18 22 Defence counsel also contacted the Port Augusta Prison and Adelaide Remand Centre, neither of which provided any information as to the defendant’s whereabouts.19 23 On 11 April 2025, the Director accepted the defendant’s offer to plead to the alternative offence on certain conditions.20 The prosecutor with conduct had been advised on that day that the defendant had been transferred to Port Augusta Prison. 24 On 11 April 2025, defence counsel were made aware that the defendant was housed at Port Augusta Prison.21 An appointment was available that day, but, owing to other client commitments, defence counsel could not speak to the 13 Record of Outcome dated 1 April 2025 (FDN 9, MCCRM-24-051038). 14 Subject to the application of s 110(3) Criminal Procedure Act 1921 (SA). 15 FDN 39 at 3, [23]-[29]. 16 FDN 39 at 3, [30]-[33]. 17 FDN 39 at 4, [34]. 18 FDN 39 at 4, [35]-[36]. 19 FDN 39 at 4, [37]-[39]. 20 FDN 30 at 2, [7]. 21 FDN 39 at 2, [6]. -- 7 of 16 -- [2025] SASC 195 Gray J 6 defendant on 11 April 2025, and an appointment was scheduled for 14 April 2025 at 10:30am.22 25 At the 14 April 2025 appointment, defence counsel dialled into the Professional Visits suite at 10:30am and awaited the defendant’s attendance. He did not appear. Defence counsel called Port Augusta Prison at 10:40am and was advised that there was confusion at the sallyport delaying the defendant’s attendance.23 By 11:05am, the defendant had still not attended, and a further call was made, which was unanswered.24 At 11:15am, a corrections officer entered the suite and queried defence counsel as to who they wished to speak to. The corrections officer advised defence counsel that the prison was in lockdown until 1:30pm that day and counsel was advised to rebook.25 No appointments were available that day, and the next appointment was booked for 17 April 2025.26 26 A similar series of events occurred on 17 April 2025. Defence counsel waited for half an hour after commencement of the appointment for the defendant and then called Port Augusta Prison.27 The next available appointment, setting aside dates where defence counsel had prior client commitments, was on 1 May 2025.28 The difficulty that defence counsel referred to in this case in seeking to contact their client whilst in custody occurred on multiple occasions. As the factual matters referred to above indicate there were numerous times where appointments were cancelled, and Mr Shinnick was denied the opportunity whilst detained of speaking to his counsel. This matter is not the only matter before me in which this issue has been raised. Access to legal representation and advice is fundamental to ensuring access to justice. It is regrettable that there appears in this matter to be a significant systemic difficulty with access to justice by the defendant whilst in custody. 27 A factual basis for the plea was provided to defence counsel by the defendant at the appointment on 1 May 2025.29 The next day, on 2 May 2025, the defence wrote to the prosecutor to advise of the proposed factual basis for the plea. The prosecutor confirmed receipt of that correspondence on 6 May 2025 and advised she would obtain instructions from the Director. 28 On 3 June 2025, a further enquiry was sent to the prosecutor by the defence about the proposed factual basis. The defence were advised by the prosecutor that the Director was awaiting the investigating officer’s views before deciding whether to accept the proposed factual basis, and the investigating officer was busy attending to other duties. On 10 June 2025, a further enquiry was sent to the prosecutor again following up on the proposed factual basis. The prosecutor 22 FDN 39 at 5, [46]. 23 FDN 39 at 5, [47]-[49]. 24 FDN 39 at 5, [50]. 25 FDN 39 at 5, [51]-[52]. 26 FDN 39 at 5, [53]-[54]. 27 FDN 39 at 5-6, [55]-[56]. 28 FDN 39 at 6, [60]-[61]. 29 FDN 39 at 6, [62]. -- 8 of 16 -- [2025] SASC 195 Gray J 7 indicated that a response was not available. The prosecutor suggested the answer charge hearing be adjourned. 29 The matter was next heard on 11 June 2025 for an answer charge hearing. The defendant sought an adjournment, with consent of the Director, to facilitate continued negotiations. That application was refused, and the matter was committed for trial, a case to answer having been conceded and not guilty pleas having been entered in answer to the charge. As a consequence, s 40(3)(c)(i) of the Act ceased to apply and s 40(3)(d)(i) had application. 30 The defence were advised of the outcome of the proposed factual basis by the Director on 28 June 2025. The matter was then heard on 1 September 2025 in this Court for arraignment and a plea of guilty was entered in accordance with the negotiations between the parties. By virtue of the operation of the Act and the temporal circumstances of the plea, s 40(3)(d)(i) then fell to be the provision that has application in the defendant’s case, subject to the application of s 40(4)(b)(v). Submissions of the parties 31 The defence submitted that in this matter the exception under section 40(4)(b)(v) of the Act is enlivened. The defence submitted that there was delay on the part of the Crown in finalising its position on the proposed factual basis and that was a matter outside the control of the defendant.30 32 The defence submitted that had it not been the case that either or both of the appointments scheduled for 21 March 2025 and 26 March 2025 being cancelled, the apprising Mr Shinnick of the committal brief would have concluded on either date, and signed instructions could have been provided to commence negotiations with the DPP, either seven or four clear business days before the committal hearing on 1 April 2025.31 Defence submitted that it was not until late in the afternoon of 28 March 2025 that Mr Shinnick was apprised of the balance of the committal brief and could provide signed instructions about how he wished to proceed regarding his plea and negotiation.32 33 In addition, defence counsel submitted that the committal brief was not disclosed in its entirety until 28 March 2025, some 3 days prior to the committal appearance. There was insufficient time to wholly finalise the matter in that period.33 It was further submitted that taking instructions via the Prisoner Telephone System would have been inappropriate for numerous reasons.34 34 The defence submitted that the delay on the part of the Director and/or South Australia Police meant that the defendant was unable to finalise negotiations in 30 FDN 39 at 2, [15]-[16]. 31 FDN 38 at [8]. 32 FDN 38 at [8] 33 FDN 39 at 6, [65]-[66]. 34 FDN 39 at 7, [70]-[73]. -- 9 of 16 -- [2025] SASC 195 Gray J 8 relation to the factual basis and plea during the before the answer charge hearing on 11 June 2025. 35 Defence also submitted that s 110(3) of the Criminal Procedure Act should be interpreted to allow for a further period for s 110(3) to operate in circumstances where the prosecution was, for any reason outside the control of the defendant, unable to finalise negotiations with the defendant in relation to the plea during that period.35 36 The defence seeks, on the basis of the cancellation of appointments by the Department of Correctional Services and delays of the Director and/or South Australia Police, that this Court allow the defendant a discount of up to 15%. 37 The Director accepted that negotiations commenced on 31 March 2025.36 The Director accepted that was a genuine offer by the defendant to resolve the matter by way of a plea of guilty to the alternative charge.37 The Director noted that the committal proceedings commenced on 1 April 2025. The Director submitted that the prosecution was unable to finalise negotiations with the defendant within the s 40(3)(b) period.38 The Director submitted that the earliest time that the prosecution responded to the offer made by defence on 31 March 2025 was on 2 April 2025. The Director submitted that that period fell within the relevant period in s 40(3)(c) and outside the relevant period under section 40(3)(b) of the Act. 38 The Director stated that the prosecution response on 2 April 2025 was outside of the control of the defendant and by that extension, the prosecution was unable to finalise the negotiations with the defendant on or before 1 April 2025 (the committal appearance).39 39 The Director stated:40 …the prosecution accepted the defence’s contention that the maximum reduction of 15% is applicable in this case. However, it is the Court’s discretion as to whether section 40(4), and specifically section 40(4)(b)(v) of the Act applied. 40 The Director submitted “that the Honourable Court still retains a discretionary power under s 40(4) of the Act to apply a higher maximum reduction even though section 110(3) of the Criminal Procedure Act is not enlivened.”41 35 FDN 38 at [30]. 36 FDN 37 at [12]. 37 FDN 37 at [13]. 38 FDN 37 at [15]. 39 FDN 37 at [17]. 40 FDN 37 at [7] 41 This was a revised position of the Director: see FDN 37. -- 10 of 16 -- [2025] SASC 195 Gray J 9 Consideration 41 I am satisfied that on the basis of the written submissions advanced and the material put before this Court, that there is a sufficient basis to enliven the operation of s 40(4)(b)(v) of the Act. Of particular assistance in this regard were the written submissions of the defence.42 The factual basis in those submissions was not disputed by the Director.43 However, for the reasons set out below it is my view that the relevant maximum discount to be applied on the facts before this Court is a discount of 10% set out in s 40(3)(c) of the Act. 42 I have considered the submissions that the parties advanced concerning s 110(3) of the Act. Although s 110(3) is referred to in the notes of section 40(3)(c), it does not affect the operation of that section. Rather s 110(3) provides for a separate form of discount which may operate when the defendant advises the Court that negotiations are taking place, and the defendant has the matter called on in the Magistrates Court for the purpose of entering a guilty plea at any time within the period of 4 weeks after the committal appearance.44 The defendant in this matter did not have the matter called on within the period of 4 weeks after the committal appearance, and accordingly s 110(3) has no application in this case. 43 For s 40(4)(b)(v) to be applicable both the requirements of s 40(4)(a) and (b) must be made out. Section 40(4)(a) concerns the time at which the plea is entered. Section 40(4)(b), as set out above, in part provides, to the effect that the Court must be satisfied that the only reasons that the defendant did not plead guilty within the relevant period was because: (v) after the making of the charge determination (within the meaning of section 106 of the Criminal Procedure Act 1921)—the prosecution was, for any reason outside of the control of the defendant, unable to finalise negotiations with the defendant in relation to the plea during that period, This is an ameliorating provision, because if applicable the court may nevertheless reduce the sentence that it would otherwise have imposed as if the defendant had pleaded guilty during the relevant period. 44 The Court of Appeal in Nguyen v The Queen (‘Nguyen’) considered the construction of the discount provisions and the legislative intention behind that scheme.45 Relevantly, Livesey P and Stanley AJA (as his Honour then was) held as follows:46 [67] The scheme of allowable reductions in a sentence following a guilty plea as set out in s 40 of the Sentencing Act depends upon the stage at which a guilty plea is entered. The earlier the plea the greater the reduction. Under the terms of the former s 40(3) 42 FDN 39. 43 FDN 37, at [8]. 44 See also, Nguyen v The Queen [2022] SASCA 25; (2022) 140 SASR 554 at [84]. 45 Nguyen v The Queen [2022] SASCA 25; (2022) 140 SASR 554 (‘Nguyen’). 46 Nguyen v The Queen [2022] SASCA 25; (2022) 140 SASR 554 at 575-6, [67] and [69]-[70] (Livesey P and Stanley AJA). -- 11 of 16 -- [2025] SASC 195 Gray J 10 of the Sentencing Act that reduction could be up to 40 per cent if entered not more than four weeks after the defendant’s first appearance. A reduction of up to 30 per cent was available on a guilty plea being entered more than four weeks after the defendant’s first court appearance but on the day of, or before, “the defendant’s committal appearance”. The need for certainty in identifying precisely when potential sentencing reductions are available is a cogent factor to consider when construing the statutory scheme of sentencing reductions. … [69] The structure of s 40 of the Sentencing Act with its five consecutive time bands prescribing the maximum reductions available for a guilty plea is intended to encourage early pleas. In enacting this scheme the legislature recognised that the maximum reductions would become available at a time when the defendant might have little knowledge or understanding of the strength of the prosecution case. [70] This construction is consistent with the utilitarian purposes of s 40 of the Sentencing Act. Those purposes are to encourage the timely entry of guilty pleas; to reduce court delays; to avoid the expense and inconvenience of a trial; to minimise the stress on victims and other witnesses; and to save the time and resources of police and prosecutors in preparing matters for trial. Those purposes emphasise the need for certainty so that defence lawyers are able to advise their clients with confidence about the potential extent of any reduction that may be available, depending on the stage at which a plea is entered. (citations omitted) 45 Livesey P and Stanley AJA went on to hold:47 [84] But for the appellants’ alternative submission, addressed below, the appellants’ contention that they were entitled to up to a 30 per cent reduction in sentence for the guilty pleas must fail. The appellants’ guilty pleas were not made on the day of, or before, their committal appearance on 8 May 2020 in accordance with s 40(3)(b) of the Sentencing Act, or within four weeks after that date in accordance with s 110(3). Further, the appellants do not fall within the exception in s 40(4)(b)(v) of the Sentencing Act. The sentencing judge could not be satisfied that the only reason that the appellants did not plead guilty within the period prescribed in s 40(3)(b) of the Sentencing Act was because the prosecution was, for any reason outside the control of the appellants, unable to finalise negotiations with the appellants in relation to the pleas during that period. That period ended on 8 May 2020. Section 40(4)(b)(v) of the Sentencing Act is predicated on negotiations having commenced, at the latest in this case, by the committal appearance. Negotiations had not commenced by 8 May 2020. Notwithstanding that the solicitor for Thanh wrote to the prosecution on 7 May 2020 “opening the door to negotiations” in order to preserve the discount, this did not constitute negotiations commencing prior to the committal appearance the following day. On the contrary, it was a transparent device adopted by Thanh’s solicitor designed to circumvent the statutory scheme. … [86] The availability of a reduction greater than 20 per cent depended on whether guilty pleas had been entered within four weeks after 8 May 2020, or negotiations had been 47 Nguyen v The Queen [2022] SASCA 25; (2022) 140 SASR 554 at 578, [84], [86]-[87] (Livesey P and Stanley AJA). -- 12 of 16 -- [2025] SASC 195 Gray J 11 commenced prior to the committal appearance and, if so, whether the only reason the appellants did not plead at the committal appearance was that, for any reason outside of their control, the prosecution were unable to finalise those negotiations prior to the committal appearance. As a matter of fact, negotiations had not commenced by 8 May 2020 and no plea was entered during the following four weeks. Accordingly, the sentencing judge was correct in concluding that the appellants’ entitlement, by reason of their guilty pleas, to a reduction in sentence was no more than 20 per cent. [87] However, the reasons of the sentencing judge for reaching this conclusion discloses error. The sentencing judge appears to have considered that the entitlement to a reduction of up to 30 per cent in the sentence to be imposed required the defendant to have conveyed the intention to plead guilty to the magistrate. That misapprehends the operation of the statutory scheme. The entitlement to a reduction of up to 30 per cent did not depend upon an intimation of an intention to enter guilty pleas being given to the magistrate. Rather, it required the defendant to have intimated to the prosecution an intention to enter a guilty plea. Notwithstanding that error, this Court is concerned to correct orders not reasons.48 That error did not affect the reduction correctly made by the sentencing judge and it provides no scope for appellate intervention. (citation included) 46 Doyle JA in separate reasons agreed with their Honours’ conclusion in respect of the operation of s 40.49 47 I am bound by, and I follow, the approach set out in Nguyen. Applying the approach in Nguyen, I am unable to accept the submission of the parties that the applicable maximum discount is 15%. 48 The statutory provisions in s 40 require that a sufficient factual basis is provided to a sentencing court such that the ameliorating provision of s 40(4)(b)(v) is applicable. 49 The express words of s 40(4)(b)(v) draw attention to the court needing to be satisfied that “the only reason that the defendant did not plead guilty within the relevant period” was the matters referred to in s 40(4)(b)(v). That is, the prosecution was for any reason outside the control of the defendant, unable to finalise negotiations. It is the party seeking the discount, ordinarily the defendant, who must satisfy the court of the matters in s 40(4)(b)(v). 50 I accept the submissions of both parties that negotiations had commenced on 31 March 2025. I accept that the offer to resolve by way of a plea of guilty to the alternative charge was a genuine offer made by the defendant. 51 I am not able to accept that that matter together with the other matters referred to above is sufficient for s 40(4)(b)(v) to be enlivened such that the applicable discount is that set out in s 40(b)(i) of up to 15%. For s 40(4)(b)(v) to be enlivened, 48 Pearce v The Queen (1998) 194 CLR 610 at [134]. 49 Nguyen v The Queen [2022] SASCA 25; (2022) 140 SASR 554, [205] (Doyle JA). -- 13 of 16 -- [2025] SASC 195 Gray J 12 the Court must be satisfied that the only reason that the defendant did not plead guilty within the relevant period was because after making of the charge determination the prosecution was for any reason outside the control of the defendant, unable to finalise negotiations with the defendant in relation to the plea during that period. 52 The factual basis relied upon by the defendant does not establish that the prosecution was for any reason outside the control of the defendant unable to finalise negotiations. The relevant period for s 40(3)(b) to be applicable is more than four weeks after the defendant’s first court appearance and the day of or before the defendant’s committal appearance on 1 April 2025. In this case, the defendant commenced the negotiations by offering the plea only the day before the defendant’s committal appearance. The timing of the offer of that plea was a matter within the control of the defendant. 53 I accept the submission of the defendant that had it not been the case that either or both of the appointments scheduled for 21 March 2025 and 26 March 2025 being cancelled, the apprising Mr Shinnick of the committal brief would have concluded on either date, and signed instructions could have been provided to commence negotiations with the DPP, either seven or four clear business days before the committal hearing on 1 April 2025.50 I also accept that it was not until late in the afternoon of 28 March 2025 that Mr Shinnick was apprised of the balance of the committal brief.51 However, those factual matters do not mean that the only reason that the defendant did not plead guilty within the relevant period after the making of the charge determination was a reason outside of the defendant’s control. 54 In Nguyen, Livesey P and Stanley AJA held that, “in enacting this scheme the legislature recognised that the maximum reductions would become available at a time when the defendant might have little knowledge or understanding of the strength of the prosecution case.”52 Whilst, it may have been prudent for the defendant to wait until he was apprised of the balance of the committal brief before commencing the negotiations, his decision to do so was, as recognised in Nguyen, a matter within his control. 55 A further difficulty with the contention that the relevant maximum discount was 15% is that, on the facts put forward by the defendant, it was not until 2 May 2025 that the defence wrote to the Director advising of the proposed factual basis for the plea and sentencing.53 To the extent that both parties submitted that on the facts of this case it was open to this Court as a matter of law to impose a discount of up to 15%, I reject those submissions. 50 FDN 38 at [8]. 51 FDN 38 at [8]. 52 Nguyen v The Queen [2022] SASCA 25; (2022) 140 SASR 554 at [69] (Livesey P and Stanley AJA). 53 FDN 39 at [63]. -- 14 of 16 -- [2025] SASC 195 Gray J 13 56 I also have significant doubt about the Director’s submission that a decision as to whether s 40(4), and specifically s 40(4)(b)(v), applies involves a discretionary decision54 as opposed to a decision to which the “correctness standard” applies. It is difficult to see how such an interpretation is supported by the statutory language. Nor is the Director’s interpretation consistent with what Livesey P and Stanley AJA referred to as the “utilitarian purposes” of s 40.55 It is however unnecessary for me to determine that question. 57 I am however satisfied on the facts before this Court that s 40(4)(b)(v) is enlivened such that the applicable discount is that set out in s 40(3)(c)(i) of up to 10%. The relevant period for s 40(3)(c)(i) to be applicable is the period commencing on the day after the defendant’s committal appearance (being 2 April 2025) and the day the defendant is committed for trial, that is 11 June 2025. 58 I am satisfied on the material before me that the only reason that the defendant did not plead guilty within the relevant period (being after the making of the charge determination on 1 April 2025, and prior to 11 June 2025), was because the prosecution was for any reasons outside the control of the defendant, unable to finalise negotiations with the defendant in relation to the plea after 1 April 2025 and prior to 11 June 2025. 59 The defendant had commenced negotiations on 31 March 2025 and has put forward a factual basis for the plea by 2 May 2025. After 2 May 2025, the factual matters referred to above indicate that the prosecution was for reasons outside the control of the defendant unable to finalise the negotiations. The factual matters summarised above indicate that the prosecutor confirmed receipt of the correspondence of 2 May 2025 on 6 May 2025 and advised that instructions would be obtained from the Director. 60 The defence followed up in relation to that response on 3 June 2025 and again on 10 June 2025. When the matter was next heard on 11 June 2025 for an answer charge determination the defendant sought an adjournment with the consent of the Director, but the adjournment was not granted. As a consequence, s 40(3)(c)(i) of the Act ceased to apply and s 40(3)(d)(i) had application. Defence was advised of the outcome of the proposed factual basis by the Director on 28 June 2025. 61 No factual material was before this Court which provided a cogent explanation as to why the Director did not respond between 2 May 2025 and 28 June 2025.56 Defence counsel was diligent in following up the Director for a response on both 3 June 2025 and again on 10 June 2025. I am satisfied that the undisputed factual matters before this Court indicates that between 2 May and 54 GLJ v Trustees of the Roman Catholic Church for the Diocese of Lismore [2023] HCA 32; (2023) 280 CLR 442, 455-6 [16] (Kiefel CJ, Gageler and Jagot JJ) 55 Nguyen v The Queen [2022] SASCA 25; (2022) 140 SASR 554, 578 [70] (Livesey P and Stanley AJA). 56 To the extent that reference was made to correspondence which suggested that the investigating officers views needed to be obtained before deciding whether to accept the proposed factual basis and that the investigating officer was busy attending to other duties, I do not find that to be a cogent explanation: see written submissions FDN 31 at 11. -- 15 of 16 -- [2025] SASC 195 Gray J 14 11 June (being the date of the committal appearance), the only reason that the defendant did not plead guilty in that period was because the prosecution was, for reasons outside the control of the defendant, unable to finalise negotiations with the defendant in relation to the plea, in that period. It follows that the criteria in section 40(4)(a) and 40(4)(b) are made out, and the discount applicable is 10%, being the discount applicable (by operation of s 40(3)(c)) had the plea been entered between the day after the defendants committal appearance (being 2 April 2025), and immediately before the defendant is committed (being 11 June 2025). Conclusion and orders 62 The consequence of the above is that the maximum applicable discount in this case is to be determined by reference to s 40(3)(c)(i) of the Act and is up to 10% -- 16 of 16 --