Abstract
There are almost as many definitions as there are terms to describe plea negotiations. This chapter examines the language that has been used to describe negotiated guilty pleas in order to highlight the diversity of victims, perpetrators, outcomes and consequences associated with plea negotiations and the need to adopt an appropriate definition that can adequately reflect this. It also identifies the four most common forms of plea negotiation present in the data collected in the study informing the book, including the withdrawal and substitution of charges, amendments to the agreed summary of facts, rolling up or creating representative counts and agreements on the sentencing submissions made to the court.
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Notes
- 1.
The case file data included documented evidence of negotiating the agreed summary of facts in 51 per cent of cases, and such evidence was inferred or referred to but not documented in almost all cases, aligning with the interview data, in which all participants identified this as a form of negotiation.
- 2.
Details pertaining to the reasons have been removed to avoid possible identification of the defendant.
- 3.
See Public Prosecutions Act 1994 (Vic) ss 41(a), 23(b).
- 4.
Legal Aid Act 1978 (Vic) s 4(a).
- 5.
See McConville and Marsh (2014) for an in-depth analysis of the role that prosecutors, judges and defence practitioners can play in state-induced guilty pleas.
- 6.
See, for example, Office of Director of Public Prosecutions (NSW), Prosecution Guidelines, Guideline 20, Charge Negotiation and Agreement: Agreed Statement of Facts: Form 1; see also Freiberg et al. 2015: 35.
- 7.
Judge01M is referring here to the offence of unintentional killing in the course or furtherance of a crime of violence, which is regulated by s 3A of the Crimes Act 1958 (Vic). This offence is defined as:
(1) A person who unintentionally causes the death of another person by an act of violence done in the course or furtherance of a crime the necessary elements of which include violence for which a person upon first conviction may, under or by virtue of any enactment, be sentenced to level 1 imprisonment (life) or to imprisonment for a term of ten years or more shall be liable to be convicted of murder as though he had killed that person intentionally.
- 8.
Clarification has been provided to the sentencing of defendants in relation to s 3A offences by the Supreme Court of Victoria Court of Appeal since the interview was conducted with Judge01M. In DPP v Perry; Perry v The Queen [2016] VSCA 152 (1 July 2016) the court stated that:
A number of sentencing decisions in this State have proceeded on the erroneous basis that the offence of statutory murder [s 3A] is a less serious form of murder than common law murder and should therefore attract sentences of a lesser order … [at 8]
[T]he mere fact that the offence is a s 3A murder, rather than common law murder, has no bearing on sentence … [at 81]
Statutory murder is not to be viewed as inherently less serious than common law murder, or as having a lower ‘starting point’ for sentencing. Both intentional murder and s 3A murder carry the same maximum penalty, that of life imprisonment. The sentencing guidance which the maximum penalty provides is therefore the same for both offences [at 83].
- 9.
[2016] VSCA 152 (1 July 2016).
- 10.
Ibid. [at 90].
- 11.
Ibid. [at 92].
- 12.
[2007] VSC 490 (15 November 2007).
- 13.
Ibid. [at 4].
- 14.
Ibid. [at 6].
- 15.
Ibid. [at 8].
- 16.
[2014] HCA 2 [at 47].
- 17.
[2008] VSCA 190.
- 18.
Ibid. [at 3].
- 19.
[2014] HCA 2 [at 48].
- 20.
Ibid. [at 23].
- 21.
R v Anthony Cook (2016) SCC 43, [2016] 2 S.C.R. 204.
- 22.
As discussed in Chap. 7, combination sentences refer to a sentencing order that includes a period of imprisonment and a CCO.
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Flynn, A., Freiberg, A. (2018). Defining Plea Negotiations. In: Plea Negotiations. Palgrave Socio-Legal Studies. Palgrave Macmillan, Cham. https://doi.org/10.1007/978-3-319-92630-8_3
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