How Do Plea Bargains Work In Australia?

We’ve all heard about the large number of cases that come before the Court each year. Similarly, it’s well known that a trial can last anywhere from a couple of days to a couple of years. Plea bargains operate to deliver faster, yet appropriate, judicial decisions.

Read on to find out how plea bargains work in Australia and when you should consider its use.

Table of Contents

What Is A Plea Bargain?

A ‘plea bargain’ refers to the process of negotiating a Defendant’s criminal charges. This occurs between the Director of Public Prosecutions (‘DPP’) and the Defendant’s legal representative (‘Defence’). The DPP is not to directly negotiate with the Defendant.

A plea bargain should be:

  1. Mutually satisfactory and 
  2. Appropriate given the criminal conduct.

Why Are Plea Bargains Used?

Generally speaking, plea bargains are used to help strike a balance between two competing public interests. On the one hand, the Court is to ensure that criminal conduct is adequately and appropriately punished. On the other hand, court proceedings are costly and the Court must make efficient use of its limited resources. 

Theoretically, a guilty plea fast tracks a criminal proceedings to the sentencing stage. In reality, this may still be a lengthy process if the Defendant is reluctant to admit guilt or facts are disputed.

The intent of the DPP is to secure a plea of guilt. Alternatively, the Defendant is seeking to reduce the severity of the sentence. 

How Do Plea Bargains Work?

Either the DPP or the Defence can propose the use of a plea bargain. However, the ultimate plea bargain proposal will come from the Defence. 

When a plea bargain is proposed, the DPP and Defence enter into lengthy discussions. These discussions revolve around the circumstances under which the DPP would accept a plea bargain.

If an agreement has been reached between the Prosecution and the Defence, the plea bargain proposal will be submitted to the Court. If no agreement has been reached, the matter will proceed to trial.

What Must The Court Consider?

The Court may accept a plea bargain if it aligns with public interest. In making its decision, the Court must consider the following matters:

  1. The alternative charge adequately reflects the essential criminality of the conduct and the pleas provides adequate scope for sentencing; and/or
  2. The evidence available to support the prosecution case is weak in any material respect; and/or
  3. The saving of cost and time weighed against the likely outcome of the matter if it proceeded to trial is substantial; and/or
  4. It will save a witness, particularly a victim or other vulnerable witness, from the stress of testifying in a trial and/or a victim has expressed a wish not to proceed with the original charge or charges. 

[Guideline 20 of the ODPP’s Prosecution Guidelines]

Moreover, input from the victim will be sought. Whether the victim considers the plea bargain to be acceptable is not determinative, however, it will be taken into consideration.

The Court cannot accept a plea bargain where:

  1. Acceptance would produce a distortion of the facts and create an artificial basis for sentencing; or
  2. Facts essential to establishing the criminality of the conduct cannot be relied upon; or
  3. The accused person intimates that he or she is not guilty of any offence. 

What Is The Effect Of A Plea Bargain?

A plea bargain may result in any (or all) of the following:

  1. Reduce the seriousness of the charges against you;
  2. Reduce the number of charges against you;
  3. The ‘facts’ that are brought before the court are amended; or
  4. Get the prosecution to make certain ‘concessions’/’discounts’

The earlier you plead guilty, the more lenient the sentence will be. The discount for a guilty plea can be up to 25%, depending on the stage of the proceedings. 

When To Consider A Plea Bargain?

There is no straight forward answer to this question. Ultimately, it is between you and your lawyer to evaluate the case brought against you and your desired outcome. 

A plea bargain may be beneficial where:

  1. There are multiple offences;  
  2. There is an overlap of penalties; or
  3. Existing evidence is weak.

If it would be harder to establish the more serious offence, the DPP may be willing to compromise. So long as the lesser offence reflects the seriousness of the criminal conduct, a plea bargain will be accepted.

Conclusion

Entering into a plea bargain offers you greater certainty and control over the case. However, it is a decision that should not be made lightly. It’s important that you consult with your lawyer about all your viable options. The DPP will be actively seeking an admission of guilt, however, you shouldn’t feel pressured. Make full use of your lawyer as your advocate.

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