Should I Plead Guilty Or Not Guilty? (Tas)

A major decision for anyone charged with a criminal offence is how they should plead. This decision affects how long it will take to finalise the matter, the potential sentence and whether a conviction is recorded. Anyone facing criminal charges should take their time to make an informed decision with the advice of an experienced criminal lawyer. This article addresses the factors that will be significant in answering the question: “should I plead guilty or not guilty” in Tasmania?

Arrest

When a person is arrested in Tasmania, they can and should immediately call a solicitor. The arrestee has a right to decline to participate in a police interview. They also have the right to request a lawyer before they are interviewed.

Pleading Guilty

It is important to understand that there is no obligation on an offender to plead guilty. All offenders have the right to mount a defence. However, there are benefits to pleading guilty. Courts are aware that people plead guilty for any number of reasons, including not wishing to prolong the matter or force witnesses to give evidence in court. Whatever a person’s motivation, the offender needs to know that pleading guilty means unequivocally taking responsibility for the offence.
A person should only plead guilty when they are ready to acknowledge responsibility for every aspect of their criminal charge. A guilty plea means accepting total responsibility for the offence. If there is any aspect of the allegation that the defendant is unsure about or feels they have a defence for, they should not plead guilty.
Courts have previously pointed out that a guilty plea amounts to a formal confession. Justice is not served if someone pleads guilty when it is not a true admission of guilt. This includes when a defendant pleads guilty out of ignorance, duress, fear, mistake or the desire to gain a technical advantage. If a trial judge suspects that a plea is not genuine, they must enquire to obtain a sound plea or direct that the defendant should enter a plea of not guilty.

Sentencing Discount For Pleading Guilty

Most criminal charges in Tasmania are resolved through a guilty plea. This is typically the result of negotiations between the defendant, their solicitor and the prosecution. Through these negotiations, a defendant can obtain a sentencing discount for pleading guilty. While there is no legislative provision for sentencing discounts in Tasmania, case law has established that this discount can be up to 25%. The timing of the guilty plea will weigh on the sentencing discount, as will the defendant’s chances of acquittal at trial.
Often, these negotiations involve the prosecution dropping a more serious charge in exchange for the defendant agreeing to a less serious charge. In that case, the prosecution will withdraw the original complaint and file a new complaint in court. The prosecution can also change the particulars or circumstances of the charge so that it is considered a lighter offence. Alternatively, if the defendant faces a list of charges, the prosecution can drop some by tendering no evidence, in which case the court will dismiss those charges.

Procedure

If a defendant pleads guilty, the judge or magistrate will invite the police prosecutor to outline the facts of the case to the court. The prosecutor will make these facts available to all parties before the hearing, and the defendant and their lawyer should check over the facts for accuracy before they are submitted into evidence. The prosecutor or police officer may also give evidence about the defendant’s antecedents (age, occupation, marital status). Otherwise, the defendant’s lawyer will submit this information through their plea in mitigation.
The prosecutor informs the court of the defendant’s prior recorded convictions after confirming the facts with the defendant themselves. If the defendant has any issues with the stated facts, they can ask the court for a hearing with sworn evidence to resolve the conflict.
After this information has been submitted, the court calls on the defendant’s lawyer to present any facts that mitigate the offence. This is the defendant’s opportunity to submit evidence, character references, call witnesses, and explain the circumstances surrounding the offence. The defendant’s parole or probation officer may also be asked to prepare a report for the court and be available to answer questions.
In cases where imprisonment is an option, the court often asks for a pre-sentence report to determine the appropriate sentence. The court may adjourn the case for at least six weeks while this report is prepared. At the final sentencing hearing, the defendant’s lawyer addresses the court on the question of a penalty and argues why the defendant should not receive the maximum sentence. The prosecution can also address the court on sentencing but rarely chooses to exercise this right. The court will then make a ruling as to sentence.
Author

Nicola Bowes

Dr Nicola Bowes holds a Bachelor of Arts with first-class honours from the University of Tasmania, a Bachelor of Laws with first-class honours from the Queensland University of Technology, and a PhD from The University of Queensland. After a decade of working in higher education, Nicola joined Armstrong Legal in 2020.
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