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Charge Negotiations (NSW)

This page outlines the factors that the New South Wales Director of Public Prosecutions (DPP) takes into account when deciding whether to withdraw charges, reduce charges, vary the statement of alleged facts or engage in other forms of charge negotiations.

Charge negotiations are encouraged

Generally, charge negotiations are encouraged by the DPP. However, the alternative charge must adequately reflect the essential criminality of the conduct and the plea must provide adequate scope for sentencing (i.e. it must adequately give effect to the principles of sentencing, e.g. deterrence, punishment, the safety of the community).

There must be evidence to support the prosecution case

Where the prosecution case is weak and a finding of guilt if unlikely the DPP is much more likely to be agreeable to withdrawing the charge or substituting a less serious charge.

Cost and time of prosecution relevant in charge negotiations

Where the cost and time that are likely to be taken by the prosecution outweigh the value of a successful prosecution, the DPP is more likely to be open to negotiating for the withdrawal of charges. Where withdrawing charges will save a vulnerable witness or victim from the stress of testifying in a trial and/or where a victim has expressed a wish not to proceed with the original charge or charges, the DPP may be more likely to agree to withdraw charges or negotiate a plea to lesser charges.

Views of the police officer-in-charge and the victim

The DPP will take into account the views of the officer in charge of the prosecution and the views of the victim when considering charge negotiations. This means that where the police or the victim feel strongly that the prosecution should proceed, the DPP will be less likely to withdraw or substitute a lesser charge. However, the views of the police and the victim/s alone are not determinative as it is the general public interest that must be served.

Facts must not be distorted as a result of charge negotiations

The DPP may agree to substitute another charge to secure a plea where this is possible while retaining the integrity of the factual situation in the alleged facts. Where the substitution of a different charge would distort the facts and create an artificial basis for sentencing, the DPP is unlikely to agree to this. Acceptance of an alternative plea must not distort the facts and create an artificial basis for sentencing.

Accused must accept responsibility

Acceptance of an alternative plea is not acceptable if the accused continue to assert their innocence with respect to charges to which they have offered to plead guilty. In other words, a plea cannot be accepted purely for convenience or expedience.

Charge negotiations must be in writing

In some cases, the prosecution may not consider an offer unless its terms are clearly set out in writing.

Early and appropriate guilty pleas

The content and timing of communications from the defence to the prosecution will be significant, given the weight accorded to early and appropriate pleas. A plea deal on the day a matter is listed for a contested hearing will not attract the same discount as a plea of guilty at the first mention.

Pleas to manslaughter based on mental impairment

Where a prosecutor is contemplating accepting a plea of guilty to manslaughter based on mental impairment under s23A of the Crimes Act 1900 (as an alternative to a murder charge), community values are to be taken into consideration.

Other charges may be taken into account

Charges that are not proceeded with are placed on a “Form 1.” These are the charges prepared by the prosecution, with which a defendant has been charged, but not convicted. They can be taken into account when dealing with the defendant for the principal offence.

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

Michelle Makela

This article was written by Michelle Makela

Michelle has over 15 years experience in the legal industry, working across commercial litigation, criminal law, family law and estate planning.  Michelle has been involved in all practice areas of the firm and in her personal practice has had experience in litigation at all levels (State and Federal Industrial Tribunals, the Supreme Court, Court of Appeal, the Federal Court, Federal...

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