An offender's 'offer' or 'willingness' to cooperate with law enforcement does not constitute an 'undertaking' within s 21E of the Crimes Act 1914 (Cth), and accordingly the sentencing court is not obliged to specify the discount for future cooperation. However, willingness to cooperate remains a significant mitigating factor at common law, accommodated by s 16A(1). The proceedings referred to in s 21E(1) include future proceedings not yet commenced. Two questions remain open: whether s 21E applies to all future cooperation or only cooperation 'in proceedings', and whether a court can reduce a sentence for future cooperation to which s 21E applies in the absence of an undertaking.
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