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Changes to Criminal Procedure: Early Appropriate Guilty Pleas (NSW)

In a bid to reduce the backlog of District Court matters and minimize the delay faced by many defendants charged with indictable matters, a NSW Law Reform Commission Inquiry was set up in 2014 to investigate guilty pleas in indictable matters and the strategies that could be used to encourage early guilty pleas. It was found that over 83% of indictable matters ended in a guilty plea, but over 35% of these were entered after the committal stage. This means that 35% of matters could continue for upwards of 6-9 months before a plea of guilty was entered, delaying the court process and negating somewhat the significant utilitarian benefit that could be gained from an early plea of guilty.

In response to the inquiry, a series of reforms were made to the legislation governing criminal procedure to address the significant delay in finalising criminal matters and with a view to encouraging appropriate early guilty pleas. The Justice Legislation Amendment (Committals and Guilty Pleas) Act 2017 (NSW) and amending regulation Criminal Procedure Amendment (Committals and Guilty Pleas) Regulation 2018 (NSW) were incorporated in late 2017 and the amendments formally commenced on 30 April 2018.

The purpose of the amendments was to replace the old procedures for dealing with indictable matters with a new scheme which requires defence and prosecution to adhere to procedural rules designed to maximise the chance of early resolution of these matters.

Which charges do the reforms apply to?

The amendments apply to all strictly indictable charges and those charges which are subject of an election to the District Court of NSW. From 30 April 2018, this scheme applies to all newly charged strictly indictable or elected matters.

Practical benefits of the amendments

Practically, the amendments encourage early disclosure of evidence by the prosecution and structured and mandatory negotiations between defence and prosecution. They also provide fixed mandatory sentence discounts for guilty pleas entered at different junctures.

Briefs of evidence

Prior to the amendments, long delays were often caused by the requirement for prosecution to provide the brief of evidence in ‘admissible form’. Prosecution is now required to serve a brief of evidence on the accused but the brief is no longer required to be in admissible form when it is served (Section 62(2)).  Acceptable alternative forms of evidence may now be served upon the defence and the Office of the Director of Public Prosecutions (ODPP) by the NSW Police Force. Alternative forms of evidence include:

• Presumptive Drug Test Results instead of a Drug Analysis Certificate;

• Results from the Exhibits Forensics Information and Miscellaneous Property System (EFIMS) instead of fingerprint evidence and an expert statement; and

• Audio of telephone intercepts and listening devices with a detailed synopsis of the contents, summary of the calls and key calls identified and transcribed, instead of audio and transcripts of telephone intercepts and listening devices.

Charge certification

Under the old system, charges laid by NSW Police could be withdrawn and other charges laid at any time, including as late as the first day of the trial. Under the reforms, a senior prosecutor is now required to review the brief of evidence immediately after it has been served, determine the most appropriate charge/s and certify the charges in a document filed in the Local Court . This ensures certainty as to which charges are being proceeded with and whether there are any alternative or related charges.

Case Conferences and negotiations

The reforms also require parties to undergo a case conference to determine whether there are any charges to which the accused person is willing to plead guilty (Criminal Procedure Act, Section 70(1)). A case conference also allows for the provision of additional material or other information necessary to determine whether or not a plea of guilty can be entered. It can also be held in an attempt to resolve other issues relating to the trial, including identifying key issues and what are the agreed or disputed facts (Section 70(2)).

A case conference will only occur after a charge certificate has been filed and where the accused is legally represented and has not already pled guilty. These conferences can be held in person or via Audio-Visual Link (AVL) and accused persons may attend with the consent of both the defence and the prosecution. A case conference enables parties to streamline the issues, organize for the provision of additional material and enter an early guilty plea if appropriate.

Fixed mandatory sentence discounts for guilty pleas

One major change brought about by the reforms is the introduction of legislated discounts on sentence. The extent of the discount a person receives on their sentence for pleading guilty is now set out in the legislation as follows:

• If a plea of guilty is entered prior to committal- 25%;

• If a plea of guilty is entered after committal but more than 14 days before the first day of trial- 10%;

• If a plea of guilty is entered after committal for trial but has complied with all pre-trial notice requirements- 10%;

• For any other guilty plea- 5%

A sentencing Judge retains the discretion to refuse or lessen the mandated sentencing discount in the following circumstances:

• Where the level of culpability is so extreme that community interest in retribution, punishment, deterrence and community protection can only be met by no discount or a lesser discount;

• The utilitarian value of the plea has been eroded by a dispute as to the facts that was not determined in favour of the offender.

Conclusion

The Early Appropriate Guilty Plea Scheme has been introduced in a bid to significantly shorten delays in matters that are ultimately finalized by way of a guilty plea. The changes offer benefits for those who engage in negotiations and make a genuine effort to resolve their matter at an early stage. Specific delays have been addressed through the encouragement of negotiations and incentives offered to resolve matters early in the form of legislated discounts on sentence.

By Daniel Shestowsky, Senior Associate

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