After someone has been charged with a crime, they can either plead guilty, or not guilty.
Pleading not guilty means you usually end up at a hearing in front of a judge or magistrate (see our pages on how hearings work here).
Someone facing criminal charges can enter a plea of guilty at any point before a hearing commences. Usually, this is done at a ‘mention’. A mention is a court appearance that is purely procedural.
If a person has entered a plea of guilty and then changes their mind to a plea of not guilty – this is called a plea traversal.
The benefits of an early guilty plea
In NSW, the criminal justice system provides a ‘sentence discount’ of up to 25 per cent for an Early Guilty Plea. This scheme has been referred to as the “Early Appropriate Guilty Plea Reform” or otherwise known as “EAGP”.
It applies to all strictly indictable (the most serious offences) and are in the class of ‘elected table offences’.
Elected Table Offences
The Criminal Procedure Act 1986 sets out what these ‘table offences’ are. These can either be a “Table 1” offence or a “Table 2” offence.
A Table 1 offence can be dealt with in the Local Court. This is unless the prosecution or the defence elect to take the charges to a higher court. These offences are more serious that Table 2 offences.
Table 2 offences can also be dealt with in the Local Court. This is unless the prosecution only elects to take it to a higher court.
Advice about pleading guilty
A person may wish to plead guilty before they have even seen the brief of evidence (BOE). Alternatively, the defendant’s lawyer may advise their client that they should obtain the Brief of Evidence before they plead guilty.
Things the defendant solicitor will take into account when advising a client because of the impact they may have on the plea of guilty:
1 – The defendants age, occupation and personal circumstances;
A defendant could be considered by the courts to be a “Young Person” (16 or 17) or a “Child” (under 16).
The defendant could also have an occupation that may disqualify them from continuing in that practice if they get a guilty conviction by the courts. For example, Physiotherapy professionals which answer to the Physiotherapy Board of Australia and have their own conduct and rules about convictions and criminal histories.
2 – Criminal charges and the type of penalties associated with it
If the defendant faces a charge of ‘Common Assault’, the maximum imprisonment sentence in the Local Court is 2 years and/or a $5, 500 maximum fine.
However, depending on the seriousness and the type of offence, the Director of Public Prosecutions (DPP) could elect to take the offence to the higher up District Court. The District Court has a more serious range of penalty outcomes. So, it is important to discuss these options with your lawyer to be aware of all the potential avenues your matter may go through.
3 – Criminal history
For first-time offenders, there is aspiration of getting the defendant a “conditional release order” (also called a Good Behaviour Bond or Section 10). This is where a conviction is not recorded. However, a Magistrate can still impose a term of conditions for you to follow for a period of up to 2 years. These may include undertaking psychological treatment or addressing one’s drug problems.
A person with an extensive criminal record is less likely to receive this type of sentence.
4 – A background of mental health issues, medication or financial and subjective circumstances in the lead up and date of the offence(s)
If the defendant has suffered ongoing mental health problems and as yet has no formal diagnosis, the lawyer can discuss obtaining a psychologist’s report to provide to the court at the time of the sentence. This can give insight into what led to the offending.
Alternatively, the defendant could already be undertaking medication or perhaps have relapsed from drug issues. In this case it is important for the defendant to have a frank discussion with their solicitor so they can arm themselves with the necessary sources of information at the time of the sentence.
5 – The steps you have undertaken since the offence to get your life back on track
If the defendant is charged with a Drink Driving – Prescribed Concentration of Alcohol (PCA) type of offence, it would be beneficial to undertake the Traffic Offender’s Program before the sentence date. This can positively show the court that the defendant has taken steps to address their alcohol issues and undertake a course to re-familiarise themselves with the importance of safety on roads and respecting other drivers. The defendant can also discuss this with their lawyer as to whether undertaking this course is applicable to their own unique case. Often police also provide a “Traffic Record” to the defendants lawyer which can show a timeline of past driving offences that need disclosure to the court.
How to plead guilty properly
Before a person enters any type of plea to the offence, their lawyer will go through the Police Facts Sheet. This is the police version of the events which have unfolded and led to the charge(s).
The lawyer will read out the facts sheet to the defendant. If they agree with them entirely, the lawyer may advise the defendant to consider pleading early to obtain the EAGP mentioned above.
Alternatively, the lawyer may advise potentially negotiating a less serious charge against the defendant which more appropriately encompasses the offending . An example of this would be a charge of “Armed with Intent – Holding a knife” when the defendant feels they only did that to intimidate a person to leave them alone. The lawyer could try to negotiate to have the charge dropped down to “Intimidation”.
If the defendant disagrees with aspects of the facts sheet, but agrees with it as a whole, the lawyer can undertake negotiations with the police and request the court to allow a period of six weeks for the police to consider “representations.”
Representations are a formal offer to amend the facts sheet to include aspects of the defendant’s instructions of what happened during the offence. This can overall be beneficial to the defendant and it reads as a proper reflection of what may have occurred at the time of the offence.
Once the lawyer is able to ascertain all of the above, and the defendant is satisfied with the Police Facts sheet, the defendant may choose to enter a plea of guilty.
The lawyer will also explain the range of charges that the plea of guilty may incur with the full or partial discount at whichever point the defendant enters the plea.
The range of penalties that can follow vary for each individual person, whether it is requesting from the court a “Section 10” or potentially being placed on a community type bond with a conviction.
It is therefore crucial to have the relevant consultation to get legal advice about all charges at the very outset to ensure the matter is properly dealt with by the court system and you receive a fair outcome.
What to do if you are facing criminal charges and want to plead guilty
If you are facing charges, you should contact a lawyer immediately. Even if you know you want to plead guilty, engaging a lawyer from the outset ensures that you have the best possibility to getting a fair and just sentence for the charge.