Significance of Plea Negotiations between Defence and Prosecutions

WHAT IS A PLEA NEGOTIATION

Plea negotiation is an informal negotiation between the prosecution and defence counsel in relation to which charges are to proceed. It may involve a discussion in relation to which charges the accused is willing to plead guilty to and which charges the prosecution will withdraw. It may also involve an agreement between the parties as to a proposed range of any penalty that may be appropriate.

Plea negotiations have long been criticised as being contrary to the principles of public and open justice. It is important to note that plea agreements are not legally binding, and it is improper for either party make a submission to a court contrary to their understanding of the legal position or to their understanding of what would be an appropriate sentence to be imposed. Ultimately the decision as to what sentence is appropriate is always that of the court.

SENTENCE DISCOUNTS

A sentence discount is where a court imposes a less severe sentence than it otherwise would have because the offender pleaded guilty to the offence. The process for sentence discounts in Victoria is legislated. Furthermore, section 5(2)(e) states that a court must take into account, “Whether the offender pleaded guilty to the offence and, if so, the stage in the proceedings at which the offender did so or indicated an intention to do so”.

Rationale

Australian courts have found that pleading guilty is so important to the administration of justice that it is treated as a mitigating factor under section 5(2)(g).

It is in the interest of the community to encourage early pleas of guilty by those who are guilty and to conserve the trial process substantially to cases where there is a genuine contest about guilt. This helps to ease the congestion on court lists and reduce delays.

The High Court of Australia has indicated the pragmatic advantages associated with an accused pleading guilty stating, “giving sentence “discounts” to those who plead guilty at the earliest available opportunity encourages pleas of guilty, reduces the expense of the criminal justice system, reduces court delays, avoids inconvenience to witnesses and prevents the misuse of legal aid funds by the guilty.

The High Court has attempted to circumvent this problem by stating that the guilty plea discount does not penalise those who elect to go to trial, but simply punishes those who plead guilty, to a lesser extent.

Delay

There is an urgent need to address the endemic problem of delay in the legal justice system and court administration. 

Approximately 90% of all cases sentenced in Victoria’s courts are sentenced in the Magistrates Court. Between 2006 and 2016 the Magistrates Court sentenced an average of 84, 438 cases a year. 

In light of these figures it is critically important to note that in Victoria; approximately 88% of indictable matters are resolved by a plea of guilty. In the Magistrates Court of Victoria over 95% per cent of summary matters conclude with a guilty outcome.

Despite this fact that most criminal cases are finalised by a guilty plea, as of the 30th of June 2016, 27% of cases in the Magistrates had been in the court system for longer than six months without a resolution and 8.7% of cases had been in the courts for over 12 months. Therefore, the timing of a plead becomes a significant factor in awarding sentencing discounts as the courts take in account the flow on effect that an early resolution can have the criminal justice system.

Therefore it is reasonable to suggest that the use of sentence discounts is fair because they play a vital role in encouraging earlier pleas of guilty and foreshortening proceedings which reduces the work load on Victorian courts.

Victims and Witnesses

Providing evidence in a contested hearing can have a considerable emotional impact on victims and witnesses of crime. An early plea of guilty saves the witness the time and anxiety involved with a contested hearing and it also validates the victim’s complaint.

The inevitable delay that accompanies a contested hearing or trial forces witnesses to keep their recollections and evidence of the alleged offence fresh in the mind and prolongs any closure that they can achieve.

REDUCTION OF SENTENCE

As it currently stands in Victoria, the court does not have to reduce the sentence because of the guilty plea, but if it decides that a reduction in sentence is justified, it can decide the amount of the reduction at its full discretion.

The relevant factors that  court may take into account in considering whether, and how much, to reduce a sentence include the timing of the offer and its proximity to the trial, any terms and conditions attached to the offer, the circumstances in which the offer is made, and the conduct of the accused at trial. 

In Victoria, under s6AAA(1) of the Sentencing Act 1991 (Vic) it is a statutory requirement for the discount to be quantified. The rationale for requiring a quantitative discount is to encourage more guilty pleas, especially at an early stage.

ADDRESSING UNFAIRNESS

When a discount is awarded, it is not awarded merely for an early plea, the court considers a wide range of factors under section 5. Though a court must have regard to a guilty plea, it is not required to provide a discount if the circumstances do not warrant it. It is fundamental that the appropriate sentence for an offence is not increased if the offender exercises the right to contest the charge.

The correct procedure is to assess a sentence as proportionate to the crime and reduce it for mitigating factors, such as an early guilty plea. It is incorrect to suggest that the process is to assess the sentence the crime deserves and increase it for subsequent behaviour such as contesting the charge.

The decision of a guilty person who elects to contest their charges bears heavily upon the entire criminal justice system. This impedes the courts to reap the aforementioned benefits of an early plea. Therefore, an appropriate sentence handed down upon a finding of guilt after a hearing that does not incorporate a discount, cannot be said to be unfair. This is because the benefits of an early plea were not obtained through the accused electing to contest the charges.

CONCLUSION

For these reasons it is reasonable to conclude that any sentence discount afforded to an accused who pleads guilty at an early stage in the proceeding is not an unfair reward. The overarching principle to apply in all cases is that the sentence must be proportionate to the offending and appropriate in all of the circumstances. A sentence discount does not penalise those who elect to go to trial, it simply punishes those who plead guilty, to a lesser extent.

The public interest in the facilitation of early pleas and the benefits associated with them outweighs any sense of unfairness to a guilty accused who elects to contest their charges and ultimately loses. The need for the effective and efficient use of judicial resources is paramount.