The Early Guilty Plea Scheme

The scheme provides five steps to be taken when dealing with someone who is accused of an indictable offence, as outlined in the table provided by the Judicial Commission of NSW .

The Early Guilty Plea Scheme

THE EARLY GUILTY PLEA SCHEME – IS IT JUST THAT – A SCHEME? OR AN HONEST ATTEMPT AT COURT EFFICIENCY?

WHAT IS THIS SCHEME?

The Early Amendment Guilty Plea Scheme is a reform to the committal procedure in dealing with indictable offences. What is an indictable offence? Basically, an offence which carries a penalty of at least 10 years’ imprisonment, in other words, a very serious charge.

The scheme commenced 30 April 2018, meaning anyone charged with an indictable offence from this date has been dealt with in the way prescribed by the reforms.

The Department of Justice provides a useful overview of what the reforms are, how it works, and why the government implemented this in the first place. This can be found by clicking here .

NOW WHAT HAPPENS WHEN APPEARING IN THE LOCAL COURT?

The scheme provides five steps to be taken when dealing with someone who is accused of an indictable offence, as outlined in the table provided by the Judicial Commission of NSW .

Firstly, the relevant authorities (police) must provide a brief of evidence to the prosecution.

Secondly, a senior prosecutor (often the “Crown”) will review the evidence and then file a charge certificate with the Local Court. A charge certificate will state which charges will proceed and which will be withdrawn, if any.

WHY IS THIS FIRST STEP IMPORTANT?

This step is crucial because what has occurred in the past is that senior prosecutors do not get involved until later in the trial, and then charges are amended or withdrawn at the expense of the court’s time and resources. If a senior prosecutor is told about the case early on, then they can make an informed decision before time is wasted. This is a fundamental problem because the overriding purpose of the Court system is to facilitate the just, efficient, timely and cost-effective resolution of cases.

Next, the prosecutor and defence lawyer will have a case conference to discuss the case and to determine whether there are any offences to which the accused person is willing to plead guilty.

Then, the magistrate will order the matter be heard in a higher court for trial or sentence. This process is referred to as “committal for sentence” or “committal for trial” after having been satisfied that the earlier steps have been completed. This has replaced the need for a magistrate to conduct a complete, in depth committal hearing. A committal hearing required the magistrate to consider evidence and determine if there were reasonable prospects of conviction.

WHY IS THIS COMMITTAL STEP USEFUL?

Clearly, if a magistrate does not have to conduct a whole committal hearing, this saves a lot of court time by having the matter referred to higher courts where there is a valid reason for doing so. This change was prompted by data published by the Law Reform Commission which stated that magistrates were exercising the discretion to discharge a matter in only 1 per cent of cases, as referred to in the second reading speech at page 6 found here.

Lastly, a timetable has been published outlining what sentence discounts an offender will receive for timely guilty pleas. It states with certainty that if an offender pleads guilty before committal in the Local Court, they will receive a 25% discount. If they plead this up to 14 days before the first day of trial in the District or Supreme Court, they will receive a 10% discount. At any other time after this a guilty plea will attract a 5% discount. This systematically ensures that large discounts cannot be granted for guilty pleas that are made late in the process.

WHAT DOES THIS PROCEDURE LOOK LIKE IN PRACTICE?

Appearing in Local Court:

  1. The brief service orders are made and then the matter is adjourned for 8 weeks to allow for the service.
  2. The prosecution confirms it has served the brief. The matter is then adjourned for 6 weeks in order to file the charge certificate.
  3. The charge certificate is then filed by the prosecution at the next court appearance.

If a plea of NOT GUILTY is entered, then:

  • If the accused is legally represented, the matter is adjourned for 8 weeks. The parties have 6 weeks to conduct a case conference, and then 2 weeks to create a case conference certificate.
  • If the accused is unrepresented, there is a 2 week adjournment to allow for the accused to seek representation or legal advice
  • At the next court appearance, where there is legal representation, the case conference certificate and any amended charge certificate is filed. A plea is then entered and the matter is committed for trial or sentence.
  • If the accused is unrepresented, a plea must be entered and the matter committed for trial or sentence.

WHAT ARE THE IMPLICATIONS OF THESE REFORMS?

The second reading speech of the Bill suggests that defendants and others involved in the criminal justice system may experience:

–          ‘A reduction in the likelihood that the charges will change closer to the trial date and provides certainty to the defence… [the] Prosecutor will perform a gatekeeping role earlier in the process by certifying which charges will proceed’

–          And increases in funding to Legal Aid and the ODPP will make sure that senior lawyers become involves in a matter early on, creating less delays due to amendments in the charges.

PRACTICAL RESULTS

While the results of implementing this scheme are not clear at this point, the intention is to encourage offenders of indictable offences to plead guilty at the earliest possible opportunity in order to streamline the efforts of their representatives, paving the way for favourable sentencing and a redirection of court resources for the benefit of the justice system at large.

There are potential benefits to this procedural amendment; victims may be able to avoid trauma associated with re-exposure to the offender, and the courts can devote more time and attention to matters where there is a greater need to conduct a trial. The intentions of this Bill are to increase efficiency of managing cases to ensure access to justice for all those within the criminal justice system.

The Bill resulted from the need to address extreme backlogs in the Local and District Courts of NSW, and to reduce the delays in concluding indictable criminal cases. The design and articulation of this procedural change is derived from statistics released by the Law Reform Commission that suggested procedural changes could increase the efficiency of the sentencing process. The statistics released by the Commission found that most indictable criminal trials ended with the defendant pleading guilty. Unfortunately, about a quarter of these pleas were not entered until the first day of the trial, delaying the justice process, and this results in a misuse of the court’s time and resources. These statistics are also explored at the following link. 

The early appropriate guilty pleas Bill has been designed and implemented with intentions of expediting sentencing, increasing efficiency of the judicial process for defendants, their representation, and the court system.

DOES THIS UNDERMINE THE SYSTEM AT ALL?

One may think that this has the potential to increase pressure on lawyers to convince their clients to plead guilty before they think it necessary to do so. At this point there are no controversial cases to indicate any failures of the reforms so far. It could be argued that these reforms create more visibility into the case brought against an accused, giving them a greater chance of improving the outcome for themselves.

FURTHER READING

If you would like to find out about other recent criminal sentencing reforms check out this blog post by National Criminal Lawyers.

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