"The law holds that it is better that ten guilty persons escape, than that one innocent suffer"
- Sir William Blackstone, 1769
If you have been charged with an offence, you might start to consider pleading guilty or not guilty. Depending on your circumstances, this decision may be one of the most difficult and long-lasting decisions of your life.
This article provides some general advice in respect of pleas and frequently asked questions. It is important to note that there can be no substitute for seeking legal advice from a lawyer has properly considered your individual circumstances.
Pleading Not Guilty
We'd like to think that we live in a society where being falsely accused of a crime 'just won't happen to me', but the sad reality is that it can happen to anyone. For some clients, the decision to plead not guilty is one of the easiest decisions they will ever make. It is as simple as:
'I will not plead guilty to something I didn't do'.
For others, it can be unimaginably complex.
If you have a Netflix subscription, or if you follow Kim Kardashian on Instagram, you will know well that there are (and have been) many innocent people in custody for offences they did not commit. Australia is not an exception.
Whilst it is a terrifying prospect, it is important to recognise these occasional failures of the criminal justice system in order to make an informed decision. Sadly, there are innocent people who will plead guilty to an offence in order to achieve the best possible outcome.
Only after you have received comprehensive legal advice should you enter a plea of not guilty.
Depending on the severity of the charge, you may be entitled to brief of evidence before you enter a plea. But ordinarily proceedings dealt with in the Local court will require you to enter a plea of not guilty before you get to see the police case against you.
After your plea has been entered in the local court, you can expect to receive the brief of evidence within four-to-six weeks (except in the case of domestic violence offences). Your matter may then be set down for defended hearing and the court will ultimately determine whether you are guilty or not guilty.
In some instances, your lawyer may be able to negotiate early access to the evidence before you enter a plea of not guilty. For example, if Police alleged the offending was captured on CCTV you may wish to see the footage before you plead not guilty.
The benefits of an early plea of guilty will be discussed shortly, but in a matter where you may likely receive a custodial sentence, an early plea of guilty can have a significant impact on the final outcome.
Pleas of Guilty
Statistically speaking, the majority of criminal proceedings will resolve by way of a plea in mitigation. This follows from a plea of guilty, and depending on the severity of the matter (among other things) it may be possible for the proceedings to be disposed of on the first occasion that the matter is before the court.
Pleading guilty is not a decision which should be taken lightly, and certainly not made for convenience and/or avoiding the expense of a lawyer. Unfortunately, we speak with many clients who have pleaded guilty in the first instance only to realise it was not in their best interests, or perhaps there was more that they could have done before proceeding to sentence.
The benefit of securing competent representation in the first instance will save you significantly on appeal. It may also allow you to fully understand the consequences which inevitably follow from a plea of guilty so that there are no nasty surprises after the fact.
Even if you agree with the accusations levied against you, a good lawyer will, in the very least, guide you to preparing for the best sentence outcome. But it might be that there are other options available to you.
The Benefits of Pleading Guilty Early
As noted earlier, an early plea of guilty can attract a 25 per cent discount on sentence. In the case of custodial sentences, this can be a significant factor in the decision-making process.
If you have pleaded guilty to offence in the past, you will likely be familiar with the sentencing discount regime. For those of you that are dealing with your first offence, you will come to learn of this as the 'utilitarian discount'. It is afforded in recognition that you have spared the court and the community the very expensive undertaking of a defended hearing.
The maximum sentence discount in this regard is 25 per cent, which applies in circumstances where you enter a plea of guilty on the first return date. If you plead not guilty in the first instance and you change your mind at a later date, your discount will be reduced accordingly as you approach your hearing date.
Once again, there are circumstances where securing the full 25 per cent is relatively straightforward. For example, the offence and the police facts sheet are uncontentious, and the matter can resolve quickly.
Of course, there are circumstances which are not as straightforward. It might be that you agree with the offence but you do not agree with the Police Facts. For example, you agree that you are liable for an offence of affray, but you do not agree that you punched the victim three to four times to the head.
The significance of the early plea of guilty may be lost in accepting facts which create a more serious offence by conduct which is not agreed.
Your lawyer will guide you in terms of entering a plea of guilty to the elements of the offence, noting a factual dispute to be heard. If this resolves in your favour, your sentencing discount is secured.
Negotiating with Police
There are certain circumstances where your lawyer might negotiate with Police, either before or after a plea has been entered.
Given the fast-paced nature of the Local Court, it is rare to be afforded the opportunity to negotiate before a plea has been entered. More-and-more we are experiencing the Court's insistence that pleas be entered, or at least indicated and occasionally, adjourned for representations.
'Representations' is lawyer-speak for sending a formal letter to Police in an attempt to negotiate a particular outcome on your behalf. Most often, we are seeking offence(s) be withdrawn or factual disputes be resolved without the need for a defended hearing.
It is important to be aware that Police are not obliged to accept an offer made by the defence, and in some cases sending representations is not in your best interests. Your lawyer will have experience dealing with the commissioner in your local area, and whether this undertaking is worth the expense.
It is important to fully consider your plea(s) without resting your hopes on representations resolving in your favour.
FREQUENTLY ASKED QUESTIONS (AND STATEMENTS )
Q: "I can't decide. Can you decide for me"
Absolutely-and-unequivocally-not.
Your lawyer must fully advise you in relation to your options and the consequences of each, and in some instances they will expressly tell you what is in your best interests. But nobody can make this decision for you, and nobody, not even your lawyer, can make you do something that you don't want to do.
Q: "What if I plead guilty and I change my mind"
If you are having doubts about your decision to plead guilty, you should Not.Plead.Guilty.
One time for the folks in the back – do not enter a plea of guilty.
Once your plea of guilty is formally entered you cannot simply change your mind. You will be required to 'traverse the plea' which can be a complex process to navigate, especially in circumstances where you were represented by a lawyer. If you're having any doubts, speak to your lawyer and ask for more time to make this important decision.
For those of you who need to hear this, we are here to help you – you are not annoying.
Q: "Can I see the brief of evidence first"
As noted earlier, occasionally your lawyer may be able to negotiate access to a particular item in the brief before the first return date. However, this greatly depends on the attitude of the officer in charge, and the availability of the evidence.
Ordinarily you will be required to enter a plea of not guilty if you wish to see the evidence against you. In doing so, there may be some reduction in your sentencing discount but rarely to the extent that you should consider not obtaining the brief if you have any reason to doubt the Police case.
More often than not, the brief of evidence identifies at least some scope to negotiate.
Q: "I did commit the offence but if I plead guilty, I will lose everything. What are my options".
Sadly this is something that defence lawyers hear all too often, and emphasises the importance of making this decision yourself. The consequences of it are for you and you alone and nobody but you can know whether you can live with that.
It is your right to enter a plea of not guilty and to defend the case against you. However, if you have disclosed to your lawyer that you did in fact commit the offence, your defence will be limited to 'putting the prosecution to proof'.
You can read more about this here.
In certain circumstances, your lawyer might advise you that it is in your best interests to seek alternate representation.
Q: "I want to plead guilty but only if you can promise I won't be convicted".
There is a lot that your lawyer can do for you, but they cannot provide guarantee of outcome. Your decision to plead guilty must be on the basis that you accept that are guilty of the conduct alleged.
Q: "If I plead guilty, can you negotiate the sentence."
In short, no. We can guide you in preparing for sentence and it may be the case that we can canvas with the prosecutor as to whether they will oppose a particular outcome, but ultimately it is a matter for the court to determine the appropriate penalty.
Q: "I don't agree with the Facts, but I want this to go away quickly. Can't you just tell the court I didn't do that part"
The Local Court will rarely accept a submission which contradicts the Police Facts and almost certainly not where it relates to the objective seriousness of the offence.
If you hear your lawyer say something like:
"Your Honour, the accused agrees that he did punch the victim but he didn't punch him five times..."
You might be feeling like they're really fighting for you, but the reality is you're both about to go down like a lead balloon.
If your lawyer has advised you to adjourn the proceedings for either representations or a defended facts hearing, take this advice, they're really fighting for you.
You can resolve the proceedings quickly, but in all likelihood you will feel the time and expense (and more) in the sentence outcome.
If you or your loved one have been charged with an offence, schedule a free no-obligation consultation with Skye Nixon today to discuss your options.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.