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Plea bargaining

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Contact Armstrong Legal:
Sydney: (02) 9261 4555

John Sutton

In this section, you will find information about the advantages and disadvantages of plea bargaining, what the NSW and Commonwealth DPP take into account when considering a plea bargain, the advantages and disadvantages of withdrawal of charges and what should go into submissions to the DPP.

A plea bargain usually involves a plea of guilty to a lesser charge in response to the prosecution dropping other charges, or a more serious charge.

Please select the area that you are interested in or continue to read more information about plea bargaining and a brief outline in what should go in submissions to the DPP.



There may be scope for negotiations between the defence and the prosecution in relation to the charges . This is called “Charge negotiation”, and is more commonly known as “plea bargaining”. Such negotiations can result in you pleading guilty to fewer charges or to less serious charges. The other remaining charges are either not proceeded with or are taken into account in sentencing without proceeding to conviction.

In NSW both the Director of Public Prosecutions (DPP) and the police have the discretion as to whether a charge will be laid (and if so, which charge) and whether to accept a plea to a lesser charge

The NSW and Commonwealth DPP, encourage charge negotiations. They may occur at any stage of the matter, and may be initiated by the prosecution.

There are 5 basic forms of plea bargaining:

  • Attempting to persuade the prosecution to withdraw all charges
  • Where there is a single criminal offence – attempting to persuade the prosecution to accept a plea of guilty to a less serious charge and to withdraw a more serious charge
  • Where there are multiple criminal offences – arranging with the prosecution to plead guilty to some of the charges if the other charges are withdrawn (or placed on a Form 1 – a list of charges that you are not convicted with, but which the court can take into account in sentencing for the principal offence)
  • Where you plead guilty to the offence– attempting to persuade the prosecution to tender an agreed set of facts on sentence, more favourable to you than the facts initially prepared by the police at the time of charge
  • Persuading the prosecution not to make (or to withdraw) an election for the matter to be dealt with in the District Court, but instead to have the matter dealt with in the Local Court

What is the rationale for charge negotiation?

Charge negotiation attempts to balance two public interests. The first is the community’s interest in ensuring that criminal conduct is adequately and appropriately punished. The other is the public interest of reducing costs in the criminal justice system and the delay between charge and trial. You will find a list of advantages of charge negotiation below.

What types of situations present opportunities for charge negotiation?
  • 1. Where there is a vulnerable or reluctant witness: In addition to other factors, in order to avoid further harm to the witness or victim by forcing him or her to testify, the prosecutor may consider accepting a plea to a less serious charge, or a charged based on a statement of agreed facts which omits or reduces certain matters of aggravation
  • 2. Where the witness is unavailable, uncontactable or unpersuasive: Sometimes it may not be possible to contact the witness to give evidence. In addition, the witness or victim’s evidence may not carry much weight or may not be persuasive (e.g. because it may contain an element of hearsay or some evidence that may be inadmissible at trial for other reasons.)
  • 3. Where there is an overlap of adequate penalties: You may be charged with a more serious offence (e.g. maliciously inflicting grievous bodily harm with intent) and the defence may offer a plea to a less serious offence (e.g. maliciously wounding or inflicting grievous bodily harm without the intent). The first carries a penalty of 25 years, the second carries seven years. In some circumstances, the judge may decide that a seven year sentence is enough. Therefore, if the Crown can prove the lesser offence, it may accept that instead of pursuing the more serious offence that would be harder to prove and which would cost more time, money and grief. However, the sentence must adequately reflect the criminality involved.
  • 4. Where there are multiple offences: A plea to only some of the charges may be preferable to proceeding on all with the possibility of an entire acquittal and a lengthy and costly trial. If the offences occurred over a longer period of time, it is usually preferable to select representative charges of the activity over that period of time.

Basic outline of submissions

Formalities

  • Full name of defendant
  • Name of informant
  • Police station the defendant was charged at
  • Court attendance notice (CAN) numbers
  • The last court date and the next court date
  • The court location
  • The name and address of the defendant’s lawyer

Substance

  • State what result you are seeking at the beginning.
  • Outline why the result you are seeking is appropriate. Refer to the evidence where necessary.

Some guidelines:

  • You can use any reason that might persuade a reasonable and objective third party, but your representations should always be directed at what is contained in the DPP Guidelines
  • Written representations should be marked as being “without prejudice”, however you must still be careful in what you write
  • You should base your representations on facts set out in the prosecution brief, or on assertions made in the police interview. However, it is risky to put forward your own version as it may put the prosecution on notice about how you will conduct your defense at trial. Alternatively, your version of the facts may be given very little weight if it is unsupported by other evidence.
  • Your representations must be supported by referring to material the prosecution has given you
  • You may point out deficiencies in the evidence as a reason why a charge should be withdrawn or a plea to a lesser charge accepted. However, the gaps in evidence may be filled (e.g. if there was no DNA test done previously, the prosecution may go ahead and do one now). If this is done, it may implicate you instead.

where to next?

If you suspect that you may be under investigation, or if you have been charged with an offence, it is vital to get competent legal advice as early as possible. Our lawyers are highly specialised in criminal law and will be able to guide you through the process while dealing with the various authorities related to your matter.

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