If you have ever been charged with an offence, one of the biggest decisions you will have to make is whether to plead guilty or not guilty.
While this is a big decision for you, the criminal justice system relies upon the vast majority of people pleading guilty in order to function efficiently.
Indeed, if everyone were to plead not guilty, the courts would be clogged to the extent that they could not operate effectively.
The system therefore encourages people to plead guilty in a range of ways; by making pleading guilty quicker, cheaper and giving a ‘sentencing discount’ to those who put their hand up – whether they are actually guilty or not.
The NSW Law Reform Commission has explored how a culture built up around encouraging guilty pleas may actually be delaying them.
Guilty or not guilty?
A person should never plead guilty if they are innocent of an offence.
But for those with limited or no access to quality legal representation, pleading guilty may seem like the only viable option.
Indeed, the vast majority of defendants plead guilty at some point before their cases end up at a defended hearing (Local Court) or jury trial (District or Supreme Court).
According the Commission’s December 2014 Report, almost 90% of defendants plead guilty or are found guilty – 75% of them entering guilty pleas of their own accord.
Defendants enter guilty pleas for a range of reasons, one of them being that the justice system rewards early guilty pleas with a sentencing discount.
35% of guilty pleas in indictable cases (which are those that can be decided in a higher court) take place after the case has been committed for trial (i.e. after the case has gone from the Local Court to a higher court) – and the majority of those pleas are not to the original charges, but to less serious ones.
Sentencing discounts
If a defendant pleads guilty at an early stage, they can expect a discount of up to 25% on what their sentence would have been if they had pleaded not guilty and been found guilty.
Pleading guilty at a later stage in the proceedings will normally result in a lower discount; e.g. 15% or 10%.
Importantly, a discount can actually lead to a less serious type of penalty being imposed; for example, it might allow a person to receive a ‘suspended prison sentence’ rather than full-time imprisonment.
These discounts are often called ‘utilitarian discounts’ because they save the criminal justice system time and money.
Prosecuting criminal cases is extremely expensive; but when a person pleads guilty, the case can quickly proceed to a sentencing hearing, rather than sluggishly moving towards a costly and time-consuming defended hearing or jury trial.
Trumping-up charges
Police will often charge a person with several offences out of a single set of circumstances, and some of those charges are often far more serious that the situation warrants.
This may occur simply because police do not understand the essential ingredients of the charges that they are pressing; so they press as many charges as possible so that at least one of them sticks.
Alternatively, police may over-charge in the hope that the plea bargaining process will cause a defendant to plead guilty to at least one of the less serious charges, as the defendant may be concerned that he or she might be convicted of one of the more serious charges if they plead not guilty to all of them.
It is common for defendants to be charged, for example, with drug supply when the situation warrants a drug possession charge only, with police hoping that he or she will at least plead guilty to the possession charge.
Similarly, defendants are often charged with affray, assault occasioning actual bodily harm and common assault (a common ‘trifecta’), when they should only have been charged with common assault in the first place. Again, police may hope to ultimately get a plea of guilty to at least common assault.
This culture of ‘trumping-up’ charges has several problems, not the least of which is that defendants who are not represented (or who are incompetently represented) often plead guilty to charges that they are not guilty of, which can occur because they receive poor advice or just want to get the case ‘over and done with’.
Another problem is that defendants’ money is often wasted paying lawyers to negotiate charges, which could have been prevented if the correct charges were brought in the first place.
Criminal defence lawyers have also been criticised for ‘stringing cases along’; in other words, failing to negotiate charges in a timely manner and thereby wasting client money and court time.
The lengthy negotiation process can result in guilty pleas being entered far later than they should have been, thereby wasting court time and potentially reducing the client’s sentencing discount (e.g. from 25% to 15%).
The Law Reform Commission has recommended that the correct charge should be determined as early as possible, thereby expediting the process and saving the resources of police, the DPP, defendants and the courts.
Should case conferences be mandatory at the start of proceedings?
The Commission believes that conferences between the defence and prosecution at the beginning of proceedings will save a lot of time and money.
It is suggested that mandatory case conferences be undertaken in person, over the telephone or via audio-visual link very early in the proceedings.
Although case conferences are already meant to occur in indictable cases; they often happen later on in the proceedings, and sometimes not at all.
Justice delayed is justice denied
It is frequently said that “delayed justice is not justice at all”.
Unfortunately, players on both sides of the criminal justice system have been guilty of delaying justice – police by trumping-up charges, and defence lawyers by failing to get cases dropped or negotiate charges as early as possible.
Perhaps an early review of the appropriateness of charges by the Office of the DPP or another body, together with mandatory case conferences at the beginning of proceedings, could help to address the situation.
