Early guilty pleas

Summary of reform

Encouraging earlier guilty pleas enables swifter, more certain justice and reduce stress for victims and court delays.  

Key changes

• Early disclosure of evidence by the NSW Police Force.
• Senior prosecutors review evidence and confirm the charges that will proceed as early as possible
• Mandatory criminal case conferencing between senior prosecutors and the defence.
• Flexible and efficient case management.
• Smarter, stricter sentence discounts for guilty pleas.

Together, these changes enable early decisions on the appropriate charges and encourage early appropriate guilty pleas.

Rationale

Although 73 per cent of serious criminal cases end with the defendant pleading guilty, 23 per cent of guilty pleas are not entered until the day of trial. These changes deliver benefits for victims and the community by encouraging early appropriate guilty pleas. 

This reform builds on recommendations of the NSW Law Reform Commission Report 'Encouraging appropriate early guilty pleas' and will help deliver tough and smart justice for safer communities.

Expected benefits

The early guilty plea reform was designed to:

• reduce stress on victims by resolving criminal cases faster
• reduce the District Court backlog, leading to swifter justice for the community
• reduce time and money wasted on police, courts and lawyers preparing for trials that don't go ahead
• see offenders enter programs to address their offending behaviour earlier
• ensure guilty pleas are only entered by defendants where appropriate.

How the scheme works in practice

Early disclosure of evidence

Prior to the reform, all briefs of evidence provided by the NSW Police Force to the prosecution and defence were required to be in a form which is admissible in court. This can be time-consuming to prepare, so there was often a delay in providing those briefs.

Under the reform, the NSW Police Force is required to provide a simplified brief of evidence. This brief must still contain all the material that forms the basis of the prosecution case, is relevant to the accused, and affects the strength of the prosecution case. However, not all of this evidence is required to be in a formal admissible form when the brief is provided to certify the charge. The evidence will need to be provided in an admissible form, where necessary.

This means prosecutors have the information they need to determine the charge earlier and the defence can make an informed decision about a plea without delays. 

Certainty about the charge

Senior prosecutors have the experience and authority to determine the most appropriate charge. However, in most cases, they were not currently engaged until late in the criminal process, often after a trial date is set. As a result, charges could be withdrawn or amended late in the process. This uncertainty meant defendants often delayed their plea.

Under the reform, a senior prosecutor reviews the brief of evidence as soon as it is served, and confirms ("certifies") the charges that will proceed. This ensures the defendant is charged with the most appropriate offence as early as possible.

Mandatory case conferencing

Prior to the reform, there was no formal requirement for prosecution and defence lawyers to discuss a case before it progressed to trial.

Under the reform, senior lawyers for the prosecution and defence are engaged earlier, and are required to participate in a case conference. The defendant is required to be available during the case conference to give instructions to their defence lawyers, where possible.

This conference allows for meaningful discussion about the case, maximising opportunities for early guilty pleas and narrowing the issues to be dealt with at trial.

Flexible and efficient case management

Prior to the reform, Local Court Magistrates were responsible for deciding whether matters should be committed for trial, based on the evidence available to support the charge. In practice, magistrates usually make these decisions without a hearing, and only about one per cent of committal cases were dismissed.

Under the reform, the substantive decision by the magistrate to commit a case for trial is removed. Instead, senior prosecutors perform the function of screening out cases through charge certification.

Mechanisms for the accused to test the strength of evidence by cross-examining witnesses are maintained, where appropriate.

Cases are better managed as senior legal representatives from the prosecution and defence will be responsible for matters from start to finish.

Smarter, stricter sentencing discounts

The common law provides for a sentence discount of up to 25 per cent for an early guilty plea, which is applied flexibly by the courts. This meant that a defendant who entered a plea at a late stage of the process, even on the day of trial, may still get the benefit of the maximum sentence discount.

The reform tightly prescribes the following sentence discounts for indictable offences based on the timing of the plea, providing a clear incentive to plead guilty early. 

• Timing of guilty plea: Before committal in the Local Court 
  • Discount: 25%
• Timing of guilty plea: Up to 14 days before the first day of trial in the District or Supreme Court (for plea or notice of plea) 
  • Discount: 25%
• Timing of guilty plea: In any other circumstances 
  • Discount: 5%

Judges retain the discretion to provide no sentencing discount (or a lesser discount) in cases of extreme culpability.