Plea bargaining is both permitted and encouraged by the law
Plea bargaining is the negotiated resolution of a criminal case. Your lawyer makes an agreement with the prosecutor, subject to your approval, that results in your guilty plea to an offence.
The agreement might call for you to plead guilty to a less offence than the original charge, or it might require the prosecutor to make certain concessions to the court at sentencing.
Plea bargaining is both permitted and encouraged by the law of New South Wales, provided you are guilty of an offence. If you are not guilty of any offence, you should not plead guilty to something you did not do. If you committed a less serious offence than the one with which you are charged, plea bargaining is option that could save you from being convicted of a crime you did not commit.
Whether plea bargaining is a good idea depends upon the strength of the evidence against you, the benefits you will receive from the bargain, and your own assessment of the risks of trial versus the relative certainty of a bargained outcome. Your lawyer will be in the best position to advise you about the wisdom of making a plea bargain in your case. The sections that follow explain plea bargaining in NSW in greater detail.
Plea Bargaining Process
Plea bargaining is conducted with the prosecutor, not with the police. The officer who arrests you might tell you that you should admit to the crime because “it will go easier on you.” It is important for you to understand that the officer is in no position to make a deal with you. The officer wants to make things easier for the police, not for you.
Never try to bargain with the police. No “deal” they promise to make is enforceable in court. Your best response to police contact is to say nothing to the officer until you obtain advice from your lawyer.
Only prosecutors are authorised to engage in plea bargaining. Most criminal charges are resolved by negotiation that results in a guilty plea. That’s because most people who are arrested have committed a crime. Sometimes they committed a less serious crime than the one with which they are charged. Sometimes there are holes in the evidence that make it possible to negotiate for a reduced charge. In other cases, the evidence is so strong that it makes sense to take the best deal possible rather than risking the likelihood of a guilty verdict and a longer sentence after forcing a judge to sit through a trial.
There are different kinds of plea bargains. A plea bargain might be used to:
- Reduce the number of charges against you in exchange for your guilty plea to the remaining charges.
- Reduce the seriousness of the charge(s) against you.
- Agree upon a less serious version of the facts of the crime that will be presented to the court for consideration at sentencing.
- Require the prosecutor to concede that you are entitled to a full sentencing discount for entering an early plea, or to concede other facts (such as your minimal role in the offence).
The prosecutor’s willingness to bargain will be influenced by several factors, including:
- The strength of the evidence and the risk of losing if the case goes to trial.
- Whether you are willing to take responsibility by pleading guilty to an offence.
- Facts that persuade the prosecutor that the original charge was overstated or that the police exaggerated or misunderstood your role in the offence.
- Your lawyer’s reputation for winning trials.
- The opinions of the police and the victim.
Other cases that require prosecution and limitations on the available time that the prosecutor can devote to each one.
Obviously, when you negotiate from a position of strength, you have a better chance of obtaining a good outcome. Your lawyer will want to investigate the facts to exploit weaknesses in the prosecution’s proof. Undermining the prosecution’s evidence increases the likelihood of making a favourable plea agreement.
You can help yourself by not doing anything that might harm your case. That begins at the moment of your arrest. Do not make any admissions to the police before you obtain legal advice. If you are released on bail, obey your release conditions and stay out of trouble. It is more difficult to make a beneficial plea bargain if you commit a new crime or breach release conditions while you are on bail.
PLEA BARGAINING GUIDELINES IN NSW
Plea bargaining guidelines adopted by the Director of Public Prosecutions (DPP) in NSW encourage prosecutors to negotiate a resolution of criminal charges. The guidelines allow prosecutors to dismiss charges in return for a guilty plea to other charges, including reduced charges, if at least one of the following is true:
- the charge to which the plea is entered reflects the “essential criminality of the conduct” and permits an appropriate sentence,
- the evidence that supports the original charge is weak,
- substantial time will be saved by avoiding trial preparation and trial, when viewed in light of the trial’s likely outcome, or
- a victim would be spared the trauma of testifying or the victim has expressed a desire not to proceed with the original charge.
When prosecutors agree not to seek a conviction based on aggravated circumstances, they are not permitted to undermine that agreement by placing aggravated circumstances before the judge. Prosecutors may not enter into a plea agreement if the defendant denies committing any offence.
When prosecutors agree upon a written statement of facts, the prosecutor must solicit the view of the police and the victim if the statement omits significant facts that might influence punishment. The content of an agreed statement is ultimately the prosecutor’s decision, not that of the police or victim, but the prosecutor might need to obtain a supervisor’s approval if the victim or the police object.
FORM 1 OFFENCES
With the defendant’s agreement, prosecutors can agree to submit a list of additional offences (known in NSW as Form 1) that the offender committed. Under sections 34 and 35 of the Crimes (Sentencing Procedure) Act 1999 (NSW), the offender will not be convicted of those offences and cannot be charged with them at a later time if the court agrees to take those offences into account at sentencing. Form 1 offences cannot be regarded as a conviction for any purpose.
The court may consider Form 1 offences when sentencing the defendant on the charge to which the defendant entered a guilty plea. The court can increase the sentence on the charge to which the defendant pled guilty in light of the Form 1 offences, but cannot exceed the maximum sentence for that charge, regardless of the sentences that might have been imposed if the defendant had been convicted of the Form 1 offences.
Although Form 1 offences may result in a longer sentence, a defendant might want to agree to them in a plea bargain. Since the defendant will not be convicted of those offences, the defendant might avoid a longer overall sentence that might have been imposed if the Form 1 offences were to result in convictions and sentences in separate cases. The defendant will also avoid having those offences added to his or her criminal record.
SENTENCING AFTER A PLEA BARGAIN
Section 22 of the Crimes (Sentencing Procedure) Act 1999 (NSW) requires a court to take into account the fact that an offender entered a guilty plea. The court must consider:
- The fact that the offender entered a guilty plea.
- The time at which the offender entered (or expressed an intent to enter) a guilty plea.
- The circumstances in which the offender entered (or expressed an intent to enter) a guilty plea.
- That section also authorises the court to impose a lesser penalty in consideration of the guilty plea. If the court decides not do so, it must explain that decision to the defendant.
Courts have discretion as to whether, and to what extent, they will award a sentencing “discount” in exchange for a guilty plea. As a general rule, however, they follow guidelines that have been established by higher courts. Those guidelines encourage the court to reduce a sentence by 25% when the offender pleads guilty at the earliest opportunity, provided the offender has not otherwise behaved in a way that is inconsistent with the guilty plea. Contesting the facts upon which the sentence is based is an example of behaviour that might result in a less favourable sentencing discount.
As a general rule, the longer the offender waits to enter the plea, the less significant the sentencing discount will be. A guilty plea on the eve of trial might result in a less substantial discount than the court would have awarded if the guilty plea was entered early in the case.
On the other hand, a court might not hold it against an offender if the prosecutor waited to make an acceptable plea bargain until the trial date was approaching. That is particularly true when the offender earlier made clear a desire to plead guilty to an appropriate charge and the prosecutor eventually allows the offender to do so. In that case, the delay is not the offender’s fault and should not have a substantial impact on the sentencing discount.
In the end, the sentence is up to the court. Section 22 cautions the court not to impose a sentencing discount that would result in a sentence that is “unreasonably disproportionate to the nature and circumstances of the offence.” In most cases, however, defendants benefit from sentencing discounts when they enter guilty pleas pursuant to plea agreements.
Disclaimer : This article is just a summary of the subject matter being discussed and should not be regarded as a comprehensive legal advice for you to defend yourself alone. If you are charged with criminal offences, it is recommended that you seek legal assistance from criminal lawyers.