A conditional offer to surrender contraband to police, contingent on the offender's preconditions being met through negotiation, does not constitute an 'undertaking to assist' under s 23 of the Crimes (Sentencing Procedure) Act 1999 (NSW). While s 23(6) provides that failure to comply with s 23(4) does not invalidate a sentence, such non-compliance may nonetheless constitute appellable error under s 101A where the lack of transparency means it cannot be known whether the sentencing discretion was properly exercised. The question whether an unaccepted offer of assistance can ever constitute an 'undertaking to assist' under s 23 was left open.
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