This article was written by Andrew Fraser - Senior Associate - Canberra

Andrew works in the areas of criminal law and traffic law, providing practical advice in all of his clients’ matters. Andrew has, over many years, developed positive working relationships with prosecutors, magistrates and judges. His no-nonsense approach means he has a reputation for putting forward the best case possible for clients. Andrew has won many matters for his clients, including...

Should I Plead Guilty or Not Guilty?


The biggest question for anyone accused of a criminal offence is whether to plead guilty or not guilty. This decision may affect the sentence you receive, how long the matter takes to be finalised and whether you have a conviction recorded. A person should never plead guilty unless they agree that they are responsible for all aspect of the criminal offending that is being alleged.

If arrested and charged with offences, you should call a lawyer, as you are entitled to do. Remember that you do not have to participate in an interview just because police ask you to. In almost all cases, you should not complete an interview, with some rare exceptions.

Take your time to make an informed decision. You should ascertain what the charges against you are, take advice from a criminal lawyer and only then, give your instructions about which way you will plead.

Guilty plea means taking total responsibility for the offences

Courts acknowledge that people can plead guilty for a variety of reasons, including that they do not wish to prolong a matter or cause witnesses to have to give evidence. Whatever your motivation for pleading guilty, you need to know that when you do so you are taking responsibility for the offences unequivocally. Courts have said that a plea of guilty “amounts to a formal confession of the existence of every ingredient necessary to constitute the offence”.

Justices Dawson and McHugh said, in a much-quoted High Court case from the 1990s: “The plea of guilty must … not [be] made in circumstances suggesting that it is not a true admission of guilt. Those circumstances include ignorance, fear, duress, mistake or even the desire to gain a technical advantage … If it appears to the trial judge, for whatever reason, that a plea of guilty is not genuine, he or she must (and it is not a matter of discretion) obtain an unequivocal plea of guilty or direct that a plea of not guilty be entered. But otherwise an accused may insist upon pleading guilty.”

If there is any aspect of the charge, or part of the allegations, that you are unsure about or that you feel you may have a defence to, do not plead guilty.

Sentencing discount for pleading guilty

A plea of guilty attracts a discount on sentence. This is generally up to 25 per cent and the discount is spelt out in legislation as well as acknowledged in thousands of cases. Therefore, a plea of guilty can make the difference between going to prison or remaining in the community.

Pleading guilty can be the difference between receiving a criminal conviction which can affect your employment, travel and ability to obtain security clearances or being dealt with by way of a non-conviction order, the well-known “Section 10” (in NSW) or “Section 17” (in the ACT).

The law in NSW about the discount for guilty pleas in more serious matters has recently been made more specific under a regime called the Early Appropriate Guilty Plea scheme which aims to:

  • take the pressure off victims by resolving criminal cases faster;
  • reduce the District Court backlog leading to better justice for the community;
  • reduce time and money spent on criminal justice resources including police, courts and lawyers;
  • help offenders enter rehabilitation programs;
  • ensure that guilty pleas are only entered by an accused when it is appropriate.

This discount scheme operates on a sliding scale depending on when the plea of guilty is entered: 25 per cent if the plea is made while the matter remains in the Local Court, 10 per cent if it comes at least 14 days before trial in the District Court and 5 per cent otherwise.

Before entering into a guilty plea, the accused and their legal representative must sign off on a certificate for the court that they have had the maximum penalties for each offence charged explained to them as well as the discount scheme as mentioned above.

Why the decision is important

A recent case in the NSW Court of Criminal Appeal reversed a District Court decision that had seen a man who had pleaded guilty sentenced to longer in prison than his co-offender who was charged with the same offences but had chosen to take the matter to trial The trial that had been run very efficiently due to the conduct of his lawyers.

The Court of Criminal Appeal found, in the words of Justice Price, “Whilst the degree to which the administration of justice has been facilitated by an accused during the trial may lessen a sentence that would otherwise be imposed, it is difficult to envisage a trial where the degree of facilitation to the administration of justice could equate to the significant utilitarian benefit of a plea entered in the Local Court.”

If you are charged with any matter, you will have a host of decisions to make, but the biggest will be whether to plead guilty or not guilty.

If you require legal advice or representation in any legal matter, please contact Armstrong Legal.

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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