Plea bargaining commonly refers to the discussions that occur between the prosecution and defence regarding an accused persons likely plea, and the possible negotiation of charge/s, case facts and or the crowns’ sentencing submissions.  

The primary aim of these discussions is to find consensual agreement between the parties, with the end result being that the accused pleads guilty. Plea deals save resources and financial expenditure for the accused, they reduce court backlogs and prosecution workloads. They also spare the accused person and any victim/s from prolonged and emotionally triggering proceedings. For these reasons, plea bargaining is a common avenue for individuals charged with a criminal offence to pursue. Plea bargaining is multifaceted and requires experienced and knowledgeable criminal lawyers who can negotiate favorable terms for an accused facing strong evidence against them.

Plea bargaining is not formally recognized or governed by any Victorian Legislation.  The only controls that can be indirectly applied to plea bargaining in Victorian statute are in the Public Prosecutions Act 1994 (Vic) s 24(b), which refers to plea bargaining by describing the importance of conducting ‘prosecutions in an effective, economic and efficient manner’, and in the Victim’s Charter Act 2006 (Vic) s 9, which imposes statutory requirements to inform victims of any alterations to charges. However, neither statute defines nor acknowledges plea bargaining.

 So, What Does a Plea Bargain Actually Involve?

There are several situations where a criminal lawyer may seek a negotiated plea. Situations may include where a criminal defence lawyer attempts to persuade the prosecution to withdraw all charges to negotiate a plea of guilty to a less serious offence, in exchange for the withdrawal of the more serious charge. It also occurs where there are several charges and the defence lawyer is attempting to negotiate with the prosecution to plead guilty to some of the charges if the other charges are withdrawn.

Plea bargaining can also occur whilst negotiating with the prosecution to amend the summary of facts. The summary of facts is basically the case narrative of what it is agreed occurred. An essential part of a plea bargaining is the defence and prosecution determining an agreed summary of the case facts, which is then put to the court and forms the basis upon which the accused is sentenced. This is significant, as the facts agreed upon, if more favorable to the accused, will invariably reduce their culpability to some degree. The negotiated summary may omit, or minimize the relevance of factual elements of the crime, so as to warrant a guilty plea to altered charges. This can greatly vary the charge and eventual sentencing outcomes for an accused person. In serious cases, it may reduce the likelihood that an accused faces a term of imprisonment, or in less serious cases, may present opportunities for an accused to seek diversion or a non-conviction disposition.

It is important that if a criminal defence lawyer is pursuing a negotiated plea, that the parties maintain written copies of any agreements that may have influenced a pleading decision, especially if these reasons might impact on the sentence that is later imposed. The obligation for parties to keep record of negotiations were described by the High Court in GAS v The Queen [2004] HCA 22. In this case, the prosecution was criticized for failing to keep control and transparency of the plea bargain, which resulted in negative consequences for the victim and the family of the accused. It is therefore highly important that should your criminal lawyer proceed with a plea bargain, that they keep meticulous record of all negotiations with the prosecution. Such documentation may be used as evidence during the plea.

Whilst plea bargaining can be an avenue for parties to resolve criminal proceedings in a timelier manner, it is important to acknowledge that there are recognized issues associated with plea bargaining. A major issue that has been identified is the secrecy that surrounds plea negotiations. As negotiations are typically done behind closed doors, this can put into question the fairness of them. Specific concerns may arise during a plea negotiation in relation to potential pressures that are placed on the accused (for example, agreeing to a different version of events), which may compel them to plead guilty to charges that they could actually contest. This often occurs where an accused has not sought expert criminal legal advice, and again typifies the importance of having experienced and knowledgeable criminal lawyers in your corner, who will advocate for you and the best possible outcome.

It is important to also understand that, in Victoria, the prosecution and defence cannot agree on a sentence. Unlike in the United States, they cannot agree that, in exchange for the plea of guilty, the prosecution will accept a particular sentence. The sentencing discretion is always up to the presiding judge. However, the prosecution may agree that a particular sentence is available and is within the range of sentences applicable to the offending. For example, the prosecution may agree not to submit to the court that only a sentence of imprisonment is appropriate. Even if the prosecution argue for a sentence of imprisonment, they are not permitted to suggest a particular length of imprisonment. All that either party can do is point to other similar cases and the sentences that those offenders received.  

Considering a Plea Bargain?

Ultimately, plea bargaining is a multifaceted aspect of criminal law proceedings. There are several advantages to negotiating with the prosecution, such as potentially minimizing charges, dismissing serious charges in place of more minor ones, negotiating summaries of fact to be more favorable and the rolling up of charges. However, it is important that your criminal lawyer is transparent about the negotiation process, that they act on your instructions and advocate on your behalf. They must also keep meticulous records of any negotiations with the prosecution, as these may be relied upon in court and in sentencing. As such, it is important that if you are considering pleading guilty, that you contact lawyers such as Galbally Parker today. Our team specialises in a range of areas of law including assault, fraud, theft and sex offences.