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Discount for Pleading Guilty (NSW)

When a person pleads guilty to criminal offences in New South Wales, they are entitled to a sentencing discount. This means that the sentence they receive is more lenient than the sentence they would have received if they had been found guilty after a trial. This is because the courts recognise that a defendant should get some credit for taking responsibility for their offending and saving the courts the time and expense of running a trial. In 2017, the New South Wales government changed the law with regard to how sentencing discounts are applied in indictable matters in NSW. This article outlines the changes in respect of discounts for pleading guilty in New South Wales and the lifespan of an indictable criminal matter since the changes. This article is not intended to be a substitute for tailored legal advice.

The reforms to discounts for pleading guilty

In 2017, NSW Parliament passed the Justice Legislation Amendment (Committals and Guilty Pleas) Act 2017. The reforms amend the Criminal Procedure Act 1986 (NSW), the Children (Criminal Proceedings) Act 1987 (NSW), the Crimes (Sentencing Procedure) Act 1999 (NSW) and other Acts including the Mental Health (Forensic Provisions) Act 1990 (NSW). This article is intended to provide readers with an explanation of the reforms. These reforms are relevant for indictable matters in NSW. This article is not intended to be a substitute for tailored legal advice.

The case for change

The aim of the reforms was to encourage early appropriate guilty pleas (EAGP) in strictly indictable matters. Similarly, the reforms apply to charges that are elected to be dealt with on indictment. In 2014, the NSW Law Reform Commission (LRC) published a report titled, “Encouraging Appropriate Early Guilty Pleas”.  The LRC used data from the Bureau of Crime Statistics and Research (BOCSAR), the NSW Office of the Director of Public Prosecutions (DPP) and the District Court of NSW in its analysis.

The following statistics are contained in that report:

  • 83% of all committal matters end in a guilty plea
  • 35% of pleas of guilty are entered after a matter is committed for trial
  • 62-66% of late guilty pleas are entered on the first day of trial or later
  • 63% of guilty pleas on the first day of trial in the District Court in 2012 were not to the original charge.

The reforms were introduced with a view to addressing obstacles impeding the criminal justice system which contribute to the delays and backlog.

The most notable reforms are listed below:

  1. Early disclosure of prosecution evidence, including evidence in alternate forms;
  2. Senior Prosecutors with delegation to be involved at an early stage for the purpose of charge certification and to remain in matters until finalisation
  3. Structured and mandatory negotiations between the defence and prosecution, which will be formally recorded
  4. Fixed mandatory sentence discounts for the utilitarian value of guilty pleas
  5. The abolition of a Local Court Magistrate’s power to discharge an accused person upon assessment of the evidence, with the power to direct witnesses to give evidence retained.

How do the reforms affect the lifespan of an indictable criminal matter?

The EAGP committal process follows six stages:

  1. Early disclosure
  2. Charge certification
  3. Case conferencing
  4. Case conference Certificate
  5. Committal
  6. Sentencing Discounts & Plea offers

One of the easiest ways to explain the above timeline is by using a hypothetical scenario. We again remind the reader that this is not tailored legal advice.

Imagine you were arrested and charged with a serious indictable offence and your first mention date (i.e. first court appearance) is listed on 1 February 2021 in the Local Court. Your case will progress based on the below rudimentary timeline:

  1. 1 February 2021 – Your case would be adjourned for eight weeks to allow time for the service of the brief of evidence.
  2. 29 March 2021 – Your case will be listed for mention and the defence solicitor and police prosecutor will be required to inform the court as to whether the brief of evidence has been served and if so, whether there are any outstanding brief items. If the police need further time for brief items to be served, then your case will be adjourned to allow further time.

Let’s assume the brief of evidence has been served on time. Police prosecutors will appear and confirm the brief of evidence has been served.

Orders for charge certification will be sought with proceedings adjourned for six weeks for filing of the charge certificate (we note that Section 67 of the Criminal Procedure Act 1986 (NSW)) allows the prosecution six months for the filing of the charge certificate.

Between 29 March 2021 and 10 May 2021, a senior solicitor from the Office of the Director of Public Prosecutions (ODPP) or the Commonwealth Director of Public Prosecutions (CDPP) DPP will review the evidence and the charges laid by the police to determine whether the charges are appropriate. It may be that some of the charges are withdrawn and / or further charges laid. The solicitor from the DPP would draft and file the “Charge Certificate” which will ultimately be filed on the Charge Certification mention in the Local Court.

This Charge Certificate confirms the charges that will proceed to trial and identifies any charges that should be withdrawn. The aim of this step known as “Charge Certification” is to give the defence certainty as to the charges.

  1. 10 May 2021: Charge Certification. The ODPP/CDPP will appear for the prosecution (i.e. the police prosecutors no longer have carriage of the matter as the solicitors on both sides will liaise from here on in with respect to negotiations etc). The charge certificate will be filed and a copy is served on the defence solicitor.

Once the Charge Certificate is filed in court, your case will be adjourned for several weeks to allow time for a Case Conference to be conducted.

  1. June 2021: A Case Conference will be held during which your defence lawyer/s and the Commonwealth or State DPP lawyer/s will negotiate the charges to see if we can come to a resolution. You would be required to give your solicitor your instructions as to a plea offer you would be willing to accept so that your solicitor can offer this during the case conference. The goal of the Case Conference is to reach a mutually agreeable plea deal. You, as the defendant, are not allowed in the actual conference however you can appear either on an audio visual link or telephone to give your solicitor your instructions during the case conference.

There can be more than one case conference for any criminal case.

  1. July 2021: Once the Case Conference is conducted, a “Case Conference Certificate” is then prepared and filed with the court. This certificate acts as a formal record of any offers made by the prosecution and defence before, during and after the case conference. Both the defence and prosecution must sign the Case Conference Certificate.
  2. Assuming a resolution (aka “plea deal”) is reached, then your case will then be committed for sentence to the District Court. This means you would enter your pleas of guilty in the Local Court to obtain the full 25% discount on sentence. The discount starts to diminish from the committal date.
  3. Late 2021 – Your case will be listed in the District Court for sentence. It is on the sentencing date that the defence must tender any and all documents they intend to rely upon in mitigation of sentence. These documents often include a psychological / psychiatric report, character references/affidavits, letter of remorse from you, medical materials etc.

As can be appreciated, the abovementioned time frame is an estimate based on our experience and the reforms generally. It may be that this hypothetical case is finalised sooner or later than expected and your solicitor will keep you promptly updated of developments throughout the progression of your matter.

We also note that the abovementioned time frame does not take into account cases where witness hearings (which are optional) are sought by the defence. Similarly, the timeframe would be very different if you were to plead not guilty in which case the date of your trial would be subject to the court’s availability and other factors beyond your control. Similarly, the timeframe and discounts would be different if you were to plead guilty but contest the facts sheet. This is not an exhaustive list of the incalculable variables that may affect the progress of a matter.

So what are the discounts for pleading guilty?

The discount a person gets for the utilitarian value of a guilty plea is set out in s 25D(2) of the Crimes (Sentencing Procedure) Act 1999 No 2 . The sentence reductions a person is entitled to under that provision are set out in the below table.

Stage in proceedings guilty plea enteredDiscount given
Prior to committal25%
After committal for trial but more than 14 days before the first day of trial10%
After committal for trial but defendant has complied with pre-trial notice requirements10%
At any other time5%

The above table does not include variations to this general rule relating to the making of offers. There are three variations to the general rule and your solicitor will provide you with tailored legal advice on this point. We remind the reader that every case is unique in its own way and if you have been charged with an offence, you need to speak to a lawyer as soon as possible.

But I’m a child, surely the EAGP process doesn’t apply to me?

If you are a child and you have been charged with a serious indictable offence, then yes, your case does fall into the EAGP scheme.

Is there any way to avoid the EAGP scheme?

Our solicitors are highly skilled in negotiations with the prosecution and in many instances, we can negotiate that charges be dealt with summarily instead of on indictment. For example, if you have not been charged with a strictly indictable offence but you have been charged with an indictable offence that can be dealt with summarily, then it may be strategically useful to commence negotiations early on the proceedings in an endeavour to keep your case in the Local Court. If that were to occur, then your case would not necessarily follow the abovementioned hypothetical time frame and your case could be dealt with sooner in the Local Court where the jurisdictional limit is two years imprisonment for each offence and a maximum of five years imprisonment for all offences.

If you require legal advice or representation in relation to discounts for pleading guilty or in any legal matter, please contact Armstrong Legal.

Elizabeth Tsitsos - Senior Associate - Sydney

This article was written by Elizabeth Tsitsos - Senior Associate - Sydney

Elizabeth is a highly accomplished defence lawyer with expertise in State and Commonwealth criminal matters including domestic violence, drug supply, sexual assaults including historical child sexual assault cases, and armed robberies involving joint criminal enterprises. Focusing her practice exclusively on criminal defence, Elizabeth has appeared for clients charged with murder, terrorism, sexual assault and drug supply, including cases involving large...

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