Abstract
Plea negotiations remain a surprisingly under-researched activity, with most literature originating from America, England and Canada in the late 1970s to the early 2000s. In Australia, plea negotiations are under-examined, leaving a significant gap in understandings of how plea negotiations operate (in terms of frequency and offence type) and how they may affect justice outcomes. This is concerning in light of recent research which suggests that already marginalised groups, including Indigenous Australians, women and those from low socioeconomic backgrounds, are more vulnerable to being pressured in pre-trial decision-making. This chapter overviews the book’s case file data exploring the characteristics of cases that resolve by plea negotiation. An overview of the criminal justice process and policies related to plea negotiations in Victoria is also presented.
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Notes
- 1.
See, for example, Criminal Procedure Act 2009 (Vic) ss 60 and 207–209; Criminal Procedure (Sentence Indication) Amendment Act 1992 (NSW).
- 2.
See, for example, Department of Public Prosecutions Director’s Guidelines (Qld); Department of Public Prosecutions Guidelines Charge Negotiations (NT); Department of Public Prosecutions Prosecution Policy (ACT); Director’s Policy: Resolution (Vic); Office of the Department of Public Prosecutions Guideline 6 (NSW); Office of the Department of Public Prosecutions Prosecution Policy and Guidelines (Tas); Prosecution Policy of the Commonwealth (Cth); Prosecution Policy Guideline Number Two – Charge Bargaining (SA); and Statement of Prosecution Policy and Guidelines (WA).
- 3.
Victorian Sentencing Advisory Council (2016d).
- 4.
This excludes the prosecution of commonwealth offences.
- 5.
This refers to matters that are heard in the County and Supreme Courts in regional and rural locations across Victoria.
- 6.
The other pre-trial hearings include the committal hearing, which can proceed orally or on paper. The committal hearing occurs in the Magistrates’ Court. It provides an opportunity to test whether the Crown’s evidence is strong enough to support a conviction. If the evidence is considered strong enough, the accused is committed to stand trial (Criminal Procedure Act 2009 (Vic) s 128-s 144). In the County Court, a subsequent directions hearing aims to clarify and resolve any questions of law or procedure, provide directions for pre-trial filing, set a trial date and finalise any issues prior to trial that were not previously resolved (Criminal Procedure Act 2009 (Vic) s 181). In the Supreme Court, the case conference provides an opportunity for the parties to advise the court on witness availability and estimates of trial length. A tentative trial date is also confirmed (Supreme Court (Criminal Procedure) Rules 1998 (Vic), part 4). The final directions hearing is used to finalise trial arrangements in order to limit the likelihood of an adjournment (Practice Note 1 of 2004 (Vic)). In the Magistrates’ Court, the “trial” is referred to as a contested hearing. All guilty pleas and findings end with a plea hearing in which relevant material is presented to the judge to inform the sentence.
- 7.
It is possible for a matter to proceed directly from the summary case conference to the contested hearing, thereby bypassing the contest mention. This is more common in cases involving unrepresented defendants.
- 8.
Regulated by s 54 of the Criminal Procedure Act 2009 (Vic).
- 9.
Regulated by s 55 of the Criminal Procedure Act 2009 (Vic); see Chap. 5 for a detailed discussion of these hearings.
- 10.
Criminal Procedure Act 2009 (Vic) s 54(1)(a).
- 11.
Ibid. s 54(1)(b).
- 12.
Ibid. s 54(1)(c).
- 13.
- 14.
See Chap. 7 for a discussion of sentence indications.
- 15.
Regulated by ss 95–126 of the Criminal Procedure Act 2009 (Vic).
- 16.
Regulated by Practice Note 1 of 1999 (Vic).
- 17.
Regulated by ss 179–81 of the Criminal Procedure Act 2009 (Vic).
- 18.
Regulated by Practice Note 5 of 2006.
- 19.
Criminal Procedure Act 2009 (Vic) ss 207–209.
- 20.
Pun [2017] VSCA 219 [at 2] (Redlich JA and McLeish JA).
- 21.
The Queen v JO [2009] NTCCA 129 [at 105].
- 22.
Gallagher (1991) NSWLR 220.
- 23.
[1989] HCA 58 [at 14].
- 24.
Unlike many US jurisdictions, an Australian defendant can only plead guilty or not guilty (other than a plea of not guilty on the grounds of insanity). Australian law does not recognise a nolo contendere plea (no contest) or what is termed an Alford plea, whereby a guilty plea may be entered but the accused is able to maintain his or her innocence (Redlich et al. 2017: 459).
- 25.
R v Di Simoni [1981] HCA 31.
- 26.
Pun [2017] VSCA 219 [at 4] (Redlich JA and McLeish JA).
- 27.
R v Foster Andrew Brown (1989) 17 NSWLR 472 [at 479–481] (Gleeson CJ, Newman and Loveday JJ).
- 28.
R v Gallagher (1991) 23 NSWLR 220 [at 232].
- 29.
However, in a confidential submission to the Royal Commission into Institutional Responses to Child Sexual Abuse, some members of the judiciary expressed their concern that they were required to sentence on the basis of charges that did not reflect what the accused had actually done (Royal Commission 2017b: 345).
- 30.
Resolution is defined an agreement between the prosecution and the defendant, where the defendant will plead guilty to a particular charge or charges on the condition that the prosecution will withdraw, discontinue or not proceed with a different charge or charges (Policy of the DPP, at iv, See http://www.opp.vic.gov.au/getattachment/b5d48af4-3bef-4650-84fa-6b9befc776e0/DPP-Policy.aspx).
- 31.
- 32.
The Royal Commission into Institutional Responses to Child Sexual Abuse noted the importance of ensuring that prosecution charging and plea decisions in prosecutions for child sexual abuse offences should ensure that appropriate charges are laid to minimise the risk that they will have be to downgraded or withdrawn at a later date; that the prosecution agencies should recognise the importance to complainants and to the criminal justice system that the charges for which a guilty plea is accepted reflect the true criminality of the abuse that they suffered; and that adequate time be provided to consult victims and policy in relation to any proposal to downgrade or withdraw charges or to accept a negotiated guilty plea (Royal Commission 2017a, b: 62).
- 33.
The effect of gender on guilty plea rates is unclear (Redlich et al. 2017: 461).
- 34.
Age has not been found to be a factor in a decision to plead guilty (Redlich et al. 2017: 459).
- 35.
We note that one reason for the low number of Indigenous and Torres Strait Islander clients may be that the Victorian Aboriginal Legal Service (VALS), which provides representation for the majority of Indigenous defendants, takes most of these Legal Aid cases. In the 2014–15 period, VALS (2015: 10) provided advice, information, case work and duty lawyer work 12,392 times in criminal matters.
- 36.
Defendant background was specified in 48 of the 50 de-identified case files.
- 37.
“Mental Illness (Verdins)” in Fig. 2.8 represents cases in which the R v Verdins (2007) 16 VR 269 principles were invoked in sentencing. Ulbrick et al. (2016: 11) explain that the Verdins principles are applicable to the sentencing of defendants who present evidence of mental illness in “at least six ways” where the impaired mental functioning:
(1) may reduce moral culpability as distinct from legal responsibility; (2) may impact on the type of sentence imposed and the conditions in which it should be served; (3) may moderate or eliminate the need for general deterrence; (4) may moderate or eliminate the need for specific deterrence; (5) “may mean that a given sentence will weigh more heavily on the offender” than a person in normal health …; and (6) “[w]here there is a serious risk of imprisonment having a significant adverse effect on the offender’s mental health” (Verdins [at 32]).
“Mental Illness (Non-Verdins)” represents cases in which mental illness was led in the plea and sentencing hearing but the Verdins principles were not invoked.
- 38.
In essence, the Sentencing Act 1991 (Vic) s 6AAA requires that, where a court imposes a less severe sentence than it would otherwise have imposed because the defendant pleaded guilty, it must state the sentence that it would have imposed but for the plea of guilty. See Chap. 7 for a discussion of s 6AAA.
- 39.
Suspended sentences refer to “a period of imprisonment that is suspended (i.e. not activated) wholly or in part for a specified period (the ‘operational period’)” (SAC 2016b: ix). Suspended sentences were abolished by the Sentencing Amendment (Abolition of Suspended Sentences and Other Matters) Act 2013 (Vic) in the County and Supreme Courts for all offences committed on or after 1 September 2013, and in the Magistrates’ Court for all offences committed on or after 1 September 2014.
- 40.
That is, a non-custodial sentence (see Sentencing Act 1991 (Vic) Part 3A).
- 41.
Sentencing Amendment (Community Corrections Reform) Act 2011 (Vic).
- 42.
[2014] VSCA 342 (22 December 2014) [at 3].
- 43.
Ibid. [at 4].
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Flynn, A., Freiberg, A. (2018). Plea Negotiations in Context. In: Plea Negotiations. Palgrave Socio-Legal Studies. Palgrave Macmillan, Cham. https://doi.org/10.1007/978-3-319-92630-8_2
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