In a nutshell…
Plea bargaining is an important aspect of the criminal justice system. The plea bargaining process allows for defendants to reduce sentences and outcomes based on cooperation and negotiation. As with everything though, plea negotiations are about give and take and in order to argue for a lesser sentence you need to have something to give in return.
Before entering into a plea bargain, you should obtain legal advice from an expert criminal lawyer about whether a plea agreement is in your best interests. Often a defendant can feel pressured or backed into a corner and agree to something which is ultimately a disservice to themselves.
Legal advice in criminal matters is key and should be accessed early. Jameson Law have a team of expert criminal lawyers ready and willing to assist you.
Criminal Justice System
How Are Criminal Cases Dealt With?
All criminal offending is determined by the court and if found guilty (or a plea of guilty entered) then a criminal conviction can be recorded, and a sentence ordered. Every defendant is considered innocent until proven guilty and this is the main purpose of the criminal justice system. It is the responsibility of the prosecutor assigned to the case to prove beyond a reasonable doubt that the defendant accused committed the offences they have been charged with. See the NSW ODPP Prosecution Guidelines.
If you are not able or willing to enter a guilty plea for your offences then the matter will be determined by either final hearing or trial. If you choose to plead not guilty and allow your matter to progress to a final hearing then your fate is being placed in the hands of the judges and jury responsible for making the determination. For process basics, read our guide to NSW criminal court procedures.
Unfortunately, even if an individual is innocent this may not always be reflected in the evidence available and it can create a lot of stress. In many instances, people are leaning towards plea bargaining and plea negotiations so that they can try to ensure a less severe outcome.
What Do I Need To Know About Trial?
If you have decided to plead not guilty to a criminal offence then your matter will need to go to trial for determination. Any criminal offence is a breach of the Crimes Act 1900 (NSW) (state) or, for certain indictable matters, Commonwealth law.
If your matter does progress to trial then your charges will be considered beyond a reasonable doubt before a conviction is recorded. A trial is a serious matter and you will need to engage a defence lawyer for representation at trial.
You can negotiate a plea agreement right up until the time the decision is to be handed down. Sentence bargaining can also occur as part of this process. Any plea decisions will then be provided to the court. The reason they can only be considered prior to the verdict is because a plea agreement can only be entered before a judicial determination has been made. An individual can change their plea and plead guilty any time before the decision.
Case Study
Christina has been charged with driving offences and one count of grievous bodily harm. She has agreed to plead guilty to the driving offences however she is not willing to plead guilty to the charge of common assault. A trial has been set down for the following month. Christina’s lawyers have been trying to negotiate with the prosecutor about accepting a lesser charge to avoid the need for a trial but the prosecutor will not agree.
Christina is concerned that the outcome of court will affect her ability to engage with her children’s school and sporting activities. She is aware that in other cases which have been similar, they have been able to negotiate an agreement which reduces those consequences. Christina believes that she can prove that the crimes she is accused of have been inflamed and exaggerated by her ex partner.
Ultimately, the prosecutor is not willing to budge, and Christina is unable to negotiate a lesser charge. Her lawyers advise that she is best to proceed with the trial and continue to try and negotiate an agreement as the facts are presented.
Plea Bargaining
Why Would I Agree To A Plea Bargain?
There are a number of reasons why an individual may agree to a plea bargain in relation to their criminal case. Usually, a plea bargain serves to reduce the sentence an individual may serve in exchange for either, information or a guilty plea.
For example, collectively an individual may be looking at five separate criminal charges for drug possession and driving under the influence. In order to settle the matter without the need for a hearing, prosecution may offer to reduce the sentence for the matters if the individual pleads guilty to four of the charges. They may even dismiss the additional charge as part of the agreement.
A plea bargain can certainly work to an individual’s advantage if they have information which is of relevance to either police or prosecution. A low-level drug dealer may be able to provide information about his suppliers to police in exchange for a reduced sentence. In this instance the criminal defendant has bargained what he knows to get a better outcome. For sentencing strategy, see our page on sentencing advocacy.
Factors Taken Into Account By Prosecution
When considering the appropriateness of a plea bargain, prosecution need to consider whether the defendant should be given the privilege. Plea bargaining can cause a distorted image of the legal system as people can come to assume that they can trade information if they offend and simply keep offending with no change to their behaviour. Each criminal case needs to be considered on its own merits. See also the ODPP Guidelines on charge selection and pleas.
Factors which will influence this relate to the defendant’s criminal history, the particular case and its circumstances, whether a lighter sentence will be less than the recommended sentence, etc. If a defendant has a significant criminal history for example, a plea bargain will not assist in rehabilitation or learning from one’s actions. Defendants still need to learn that their behaviour is unacceptable.
Considerations also need to be taken into the message it will send the general public and wider community. A lesser charge being provided due to a plea agreement or a reduced sentence may cause a feeling of injustice to victims and those affected by the criminal offending. The image of public safety may become distorted.
Ultimately, the role of the prosecutor is to obtain justice for victims of criminal activity. They act for the state and any negotiation must have that in mind.
Case Study
Kayla has been charged with two counts of common assault, three counts of drive under the influence and 4 counts of drug possession over the past 3 months. She was able to apply for bail after the first few charges however she was remanded to prison after the second lot. Kayla has met with her lawyer, and they have advised that after reviewing the evidence, they believe she will need to plead guilty to all nine charges.
Unfortunately, Kayla’s charges will see her serve a term of imprisonment however, her lawyers believe there is scope for a plea deal. They would like to approach prosecution and discuss Kayla pleading guilty to all 9 offences provided she receives a partially suspended sentence. The prosecution is seeking a 3-year sentence however, they are willing to suspend 15 months of it if she is willing plead guilty. They will also require Kayla to provide information about the drug dealer she obtained methamphetamines from.
Kayla is concerned about providing information about the drug dealer she received methamphetamines from due to fears for her personal safety. Whilst there is a level of understanding about this by the prosecutor, the information is needed for the deal to be made.
Negotiated Agreements
Does The Court Need To Accept My Negotiated Agreement?
The short answer is no, the court does not need to accept your negotiated agreement. Each criminal case is unique and just because a plea deal is reached does not mean it is supported by the court or the judge. The court may consider that certain facts have been omitted or that the consequences/punishment is not severe enough or that a lack of consideration has been given to a particular issue.
Reduced charges or a reduced sentence is a privilege not a right and judges may hold different opinions about negotiations and their outcomes. For example, the prosecutor and defendant may have agreed for a felony to be downgraded and therefore the term of imprisonment to be reduced however the judge may consider the offence too serious to be downgraded. In this instance the judge will have the judicial discretion to refuse the plea bargain. For principles at sentence, see the Crimes (Sentencing Procedure) Act 1999 (NSW).
In most circumstances however, the prosecution will know how likely it is that the court will accept a negotiated plea bargain and they will not make deals which will not be made. It is important in criminal matters for a defendant to access legal advice in their area so that there is a personal knowledge of how each particular judge makes decisions. Knowing and understanding the decision making involved in previous criminal cases is key. Speak with our team about what a good criminal lawyer does.
Access To Justice
There are no guarantees with the criminal justice system. An individual who is guilty could easily be found not guilty the same as a not guilty person being found guilty. The law aims to protect victims and the wider community from harm and provide punishment where possible but the system is far from black and white.
Evidence gathered in a particular case must adhere to chain of custody principles under the Evidence Act 1995 (NSW). One wrong move by prosecution, a lab technician, or police officers involved and the evidence could be considered inadmissible. Similarly, one wrong comment, picture or documents in a matter could essentially seal the deal for a guilty verdict. With a high number of variables to be considered at every turn, sentence bargaining has become a more common practice because instead of trying to defend innocence, many defence lawyers are trying to limit the punishment.
For example, a criminal case involving drug trafficking which typically carries a heavy penalty will usually have a lot of evidence. What it may not have however is evidence which specifically ties an individual to the charge. The existence of drugs on a person is possession and evidence of the sale of those drugs is supply, but it is hard to link simple possession and sale of drugs to trafficking of drugs. Therefore, that information may be used to provide a lighter sentence in exchange for evidence.
The plea bargaining process however must be weighed against the overall justice to victims. A defendant accused of a violent assault which has caused semi-permanent or permanent impairment should not have the option of a reduced sentence or lesser charge given the damage their behaviour has caused. Therefore, the pros need to be weighed against the cons.
Case Study
Kevin has been charged with aggravated assault as well as drug trafficking offences of which the punishments will be severe. He is looking at a lengthy prison sentence. Kevin asks his lawyers about whether they believe a plea bargain can be negotiated given he will be entering a guilty plea. His defence lawyer is not confident one will be negotiated given his lengthy criminal history.
Kevin has been charged and convicted of drug possession, drug supply and drug trafficking on 4 previous occasions and served two previous prison sentences. Kevin also has convictions for breach of bail and failing to appear in court. Simply, Kevin does not have the trust of the court and it is unlikely prosecution will want to enter into a plea deal with him.
When questioned Kevin is unwilling to assist police with information about his suppliers and other members of the criminal organisation he is involved with. Whilst he claims this is due to fear for his ongoing personal safety, without providing information, his defence lawyer cannot even approach prosecution with the idea.
Kevin pleads guilty and is sentenced to 8 years imprisonment for his crimes. In the event he has a change of heart whilst serving his sentence and is willing to assist police, prosecution may be willing to help him apply for parole in the future.
What Is Charge Bargaining?
Charge bargaining refers to when a defendant accepts a lesser charge than the other, they are accused of committing so that the matter does not need to go to trial. Reduced charges of this nature may be a charge of common assault instead of aggravated assault for example. Lesser charges are a means for the prosecution to achieve justice without the risk that the matter ends up in a mistrial. Usually, charge bargaining will see lighter consequences being handed down with the conviction.
What Is Fact Bargaining?
Fact bargaining is a form of plea bargaining whereby the prosecution and the defendant agree about what version of facts is to be presented to the court. These are usually called “agreed facts”. It can be difficult for the prosecutor and defendant to agree on these matters because the defendant is unlikely to want to agree to anything which may incriminate themselves.
Fact bargaining is helpful to the court particularly in circumstances where for some charges, there is an agreement to enter a guilty plea. It drastically reduces the amount of information which needs to be submitted to the court. For tailored advice on drafting agreed facts, consult our trial representation team.
For example, it may be agreed for the court to be advised that an incident occurred on the 17th of March 2020 in the evening in Sydney CBD. It may not be agreed however that the court be advised that the defendant was intoxicated. The presentation of facts to the court is important. Sometimes, all that can be agreed is simple facts such as names, addresses and ages.
FAQs
Plea Bargaining Tips
A good plea bargain will involve give and take on both sides. It is important to offer something decent when negotiating in order to entice a good response from the prosecutors. When negotiating, the golden rule is that neither party should be completely happy. There should be an understanding from each side that the information shared by the defendant or the concessions they are willing to make is probably absent their personal safety and therefore protections need to be put in place.
What Is A Defence Lawyer?
A defence lawyer is a criminal lawyer whose role it is to assist a criminal defendant with their legal matters. This may be through the provision of general advice or through representation before the court. Defence lawyers are experts in the criminal law field.
Legal advice in a criminal law matter is critical because the consequences can be so severe. Obtaining advice from criminal law lawyers will ensure that you know the process of both criminal trials and plea bargaining approaches which may work for your criminal case. Start here: Sydney criminal lawyers.
What Is Sentencing?
Sentencing refers to the punishment or consequences an individual faces once they have been found guilty or plead guilty to their criminal offences. Sentencing can be a monetary fine, term of imprisonment or a range of other punishments aimed at deterring both the individual and the wider community from committing further criminal acts.
Common or mandatory sentencing for certain criminal offences can be found within the legislation whereas other matters have discretionary sentencing which is determined by the judge. This is one reason defendants are favouring plea bargains as they have more control over what sentence is given.
Why Is The Plea Bargaining Process So Important?
The plea bargaining process offers police and prosecution an opportunity to leverage information from criminal defendants to serve the overall greater good of society. It provides a bargaining power to take down dangerous criminals by negotiating deals with lower-level criminals. It is a greater access to justice for victims as well. For policy context, see the ODPP Guidelines.
If an individual has been charged with six offences and they are willing to plead guilty to four of those offences under a plea bargain, this is better than the chance that they could be found not guilty entirely at trial. Even if an individual is guilty, there is no guarantee this will be proven beyond a reasonable doubt at trial. Sometimes it is better to achieve some level of justice than none at all.
Is Mental Health A Factor?
Mental health can be a factor in the negotiation of a plea bargain given the toll a particular sentence may have on that individual. In many instances mental conditions can also play a role in unsuccessful or difficult trials so in an effort to avoid that bargaining may take place to settle the matter out of court. This is of course so long as the mental condition does not prohibit the existence of negotiation. Learn about mental health diversion (s 14).
If you are seeking to use a mental illness as a serious consideration in a criminal law matter, then specific psychological or psychiatric evidence will need to be presented to the court. Without independent evidence, there can be little weight given to the argument.
Who Is Responsible For The Negotiations?
Usually, a plea bargain will be negotiated between the prosecutor and the defendant’s defence lawyers. If the defendant does not have a defence lawyer, then they may choose to negotiate the deal themselves.
The prosecution represents the state during negotiations so they will have the ability to make certain deals and they will know what deals they cannot make. Either party can however start the negotiation and bargaining process no matter who has the power to make decisions.
Case Study
Jake has been charged with several counts of common assault as well as the importation of illegal goods, including tobacco. The prosecutor’s office are convinced however that Jake is importing for a large criminal organisation even though he claims he is importing for personal sale. Prosecution believe that Jake is associated with a criminal outlaw motorcycle gang who are not only importing and selling illegal tobacco but drugs as well.
The prosecutor approaches Jake and his lawyers about offering a plea deal if he names the leaders of the organisation. They offer for him to serve 18 months imprisonment instead of 4 years and they offer to put him in protective detention whilst in prison. The plea deal will also save a highly publicised criminal trial. Depending on the information he is able to provide, they may even be willing to reduce the common assault charges from aggravated battery. If Jake’s matter were to go to trial, it is likely his life would be in danger.
As part of the negotiation process, Jake’s lawyers seek that upon his release he be placed in the witness protection program along with his family.
In a nutshell…
Plea negotiations are critical to the criminal justice system. They allow professional licence to the prosecutor. A plea bargain is a means of either obtaining a reduced sentence or obtaining lesser charges in exchange for information.
Sentence bargaining is really a process which should be undertaken by an expert defence lawyer. The criminal justice system is a complex area of law and any crime committed needs to be taken seriously. Consideration needs to always be given to whether a plea bargain would be appropriate given the certain facts of the criminal case.
The consequences of criminal offending can be significant and so if any strategy exists to lessen the consequences, then they should be explored so long as there is a level of understanding about the risks. Any and all bargaining should be undertaken carefully.
Jameson Law have a team of expert criminal lawyers ready and willing to assist with all of your criminal law needs. Call (02) 8806 0866 or contact us.
