How Does Plea-Bargaining Work in the Courts of NSW?

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Imagine this: you are in a police station, having being arrested for assault.

You’ve been in the custody area behind closed doors for hours and are incredibly nervous.

You know you didn’t do it but the police tell you that they know you did.

The police officer says to you: “Listen, we know you didn’t mean to do it. If you confess now, we will make sure you are dealt with leniently. We won’t press serious charges. We’ll let you out of here and you won’t have to go to court and try to convince a judge to let you out on bail. But if you don’t cooperate we won’t help you – you could be locked up for years.”


Not at all. Police are known to frequently use these tactics to persuade people to participate in an interview and there have been dozens of studies over many years that have found that false confessions are frequently induced by the conduct of police.

And from our experienced, it is more likely that you will make the situation worse by participating in an interview because you may say things you don’t mean due to the immense pressure and stress you are under.

So you remain silent and are charged with an offence. What next?

Police may release you from the police station unconditionally or on bail. If they don’t, you will be brought before the Local Court and can make an application to be released from custody on bail.

Then what?

Once charged with a criminal offence, it is up to you (or your lawyer) to consider the strength of the evidence against you.

If the case against you is strong, you (or your lawyer) may wish to enter ‘plea negotiations’ to:

  • Reduce the seriousness of the charges against you,
  • Reduce the number of charges against you,
  • Get the prosecution to amend the ‘facts’ that are brought before the court, and/or
  • Get the prosecution to make certain ‘concessions’ eg that you entered a plea of guilty early and are entitled to the full ‘discount on sentence’, that your role was very low in the incident etc.

The prosecution may then agree to do some or all of these things, which may lead to a far more lenient penalty or even avoiding a criminal conviction altogther.

This process is called ‘plea negotiations’ or even ‘plea-bargaining’.

Although this process may sometimes work to your advantage, it might in many cases be difficult to know your best option.

Like in the opening scenario, it may be tempting to plead guilty to lesser crimes but the culture of plea-bargaining can have some negative consequences for defendants.

It should be noted that your lawyer cannot advise you to plead guilty to a charge if you have made it clear that you are innocent.

Equally, a court cannot accept a guilty plea if you have protested your innocence.

Here, the law in NSW differs to the USA where there is a third plea option of ‘no contest’.

Despite these rules, it is certainly the case that many defendants who are completely innocent plead guilty in NSW Courts for pragmatic reasons eg to get the case over with, to reduce legal costs, the pressure of ongoing criminal proceedings or because they are fearful of the risks of going to trial.

Suspense and weariness after months of facing charges and appearing in court may wear down a person until they are persuaded that admitting to something they didn’t even do is their best bet.

You should never plead guilty if you are innocent.

But if you do wish to plead guilty, doing so early on is advantageous.

In most cases, the earlier you plead guilty, the more benefits you can expect to receive.

In fact, NSW law states that a guilty plea must be taken into account when deciding a penalty.

The discount in sentence for a guilty plea can be up to 25%, depending at what stage of the proceedings you pleaded.

Unfortunately, the culture of plea-bargaining can encourage the police practice of over -charging a defendant with crimes in order to get a defendant to plead guilty to a lesser charge.

This is obviously unfair and if you are not as experienced as the police you are dealing with, it may be difficult to tell if you are getting a good deal or not.

An experienced criminal lawyer will know how to best engage in a successful plea-bargain on your behalf, if you wish to go that way.

As a general rule, it is best not to answer police questions at the police station before you get legal advice, not is it a good idea to sign anything except a bail form.

Why do we have plea-bargaining?

The court system relies on the majority of people pleading guilty in order to be more efficient.

Pleas of guilty take up far less time and resources so the system rewards defendants to plead guilty, and who do so early.

Because these negotiations take place behind closed doors, and there is often an unequal power balance between police and the defendant, having a strong lawyer to act in your best interests will ensure you don’t get a bad deal.

According to the DPP Prosecution Guidelines a plea bargain which will result in charges being dropped must consider:

  • Whether he alternative charge adequately reflects the seriousness of the offence and will allow for sufficient punishment to be given;
  • If the police evidence is weak;
  • Whether the saving of cost and time outweighs the likelihood of conviction; and/or
  • Whether it will save a witness from testifying, especially a vulnerable one and/or the witness has expressed a wish not to testify

When does plea bargaining happen?

Plea bargaining may begin in a police station, or could happen at anytime thereafter while your case is listed in the courts of NSW. However, it’s best to engage in plea negotiations as soon as possible.

In addition to the matters already outlined, a plea bargain might also include:

  • Agreements not to oppose bail
  • Agreement to proceed summarily (in a lower court, where lower maximum penalties apply, and
  • Agreement to place charges on a ‘Form 1’, which is a document handed up to the Judge when a person is being sentenced in the Higher Courts. The document will list charges that a defendant admits to but the Judge will not be permitted to impose a separate penalty for those charges.

While entering into plea-bargaining may not always be in your best interest, it certainly can be of benefit in many cases.

A specialist criminal lawyer will be in the best position to know what is best in your case to ensure that you don’t make mistakes when entering into plea-bargains.

There will be no need to feel helpless or uncertain if you have a team of good defence lawyers protecting your interests.

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About Ugur Nedim

Ugur Nedim is an Accredited Specialist Criminal Lawyer and Principal at Sydney Criminal Lawyers®, Sydney’s Leading Firm of Criminal & Traffic Defence Lawyers.

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