When assessing the discount for a rejected pre-trial offer to plead guilty, the sentencing judge must not have regard to the offender's failure to plead guilty to the lesser charge in front of the jury; the only relevant consideration is the lost utilitarian benefit had the plea been accepted. Where a sentencing judge cannot find beyond reasonable doubt which co-offender in a joint criminal enterprise committed the fatal act, and the offender cannot establish on the balance of probabilities that they did not commit the act, the offender is sentenced on the basis that neither competing possibility is known. The standard of appellate review of sentencing findings of fact remains an open question in NSW, with differing approaches in O'Donoghue and Hordern not yet resolved.
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