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Often the first question on a client’s mind when they are charged with an offence is “should I plead guilty or not guilty?”. However, the answer to this question is much more complicated than it would first appear.

Here is why you should speak to a criminal lawyer in Sydney before making any decision about how to plead if charged in NSW.


What Are You Pleading Guilty To?

 Pleading guilty means that you admit having committed the offence that the police have charged you with and the circumstances surrounding that offence. In addition, there must be an agreed set of facts that reflect the offending behaviour for the court to read prior to then imposing a penalty on sentence (this last part is what people often miss and can make a significant difference in the outcome).

It’s very hard for a layperson to know whether or not they have met the legal criteria for an offence or whether there are grounds to challenge the charges.

For example, say you are found in possession of ecstasy pills (MDMA) after being searched whilst entering a music festival. The police charge you both with possession of a prohibited drug under s10 of the Drug Misuse and Trafficking Act 1985 (NSW) and supply of a prohibited drug under s25 of the Drug Misuse and Trafficking Act 1985 (NSW) as the amount in your possession was over the “traffickable” quantity.

Because you have been found in possession of illicit drugs, it may seem intuitive to plead guilty to all charges, but there are a number of legal questions that your criminal defence lawyer would want answered before making that decision.

Firstly, was the search conducted at the music festival lawful? Did it follow the legal requirements of a personal search? If the search was unlawful, what are the consequence of this for the charges?

Secondly, the charge of ‘supply of prohibited drug’ – which carries a serious maximum penalty of 15 years imprisonment – was made on the basis of what is called ‘deemed supply’. That is, because the amount in your possession is over the “traffickable” quantity for MDMA it is deemed under law that you intended to supply the drug to others.

However, what is the evidence that the amount in your possession was over the “traffickable” quantity? Similarly, is there evidence that could be put forward to rebut the presumption of supply – indicating that the MDMA in your person was actually only for personal use?

As you can see, even a seemingly simple looking case actually raises a number of questions that a lawyer can weigh up and determine if indicative of guilt.

Often clients make the mistake in thinking that just because they have broken the law in one respect, any and all charges laid against them are correct. Sometimes, however, they are not.

By law you’re entitled to the presumption of innocence, it is for the prosecution to prove beyond reasonable doubt that you committed an offence.

You should therefore never feel pressured to admit guilt to an offence before receiving legal advice. Generally, you have a right to silence, and it is normally recommended to exercise that right when approached by police if you are a suspect in the eyes of the police.

A common error made by people who are arrested by police is that they believe that by telling police they do not want to talk, it will cause the situation to become worse. In fact, usually by saying “no” to an interview or refusing to talk (other than giving your identification details) it preserves your rights and places you in a better position. This can allow a criminal defence lawyer to be able to explore more beneficial options.


Are There Benefits To Pleading Guilty?

 There are sometimes benefits to pleading guilty to an offence at the earliest opportunity.

If a defendant (the person charged) pleads guilty to a criminal offence they are entitled to a “sentencing discount”. That is, when a court is deciding the severity of punishment the defendant is to receive, they will get some degree of leniency for pleading guilty at the earliest opportunity to reflect acceptance of responsibility, and the saving of court resources often referred to as a utility discount.

Defendants are entitled to this discount as an early plea of guilty has saved the hassle and costs of a lengthy criminal trial, reduced stress on victims and cleared the court backlog of cases. It also indicates that the person charged is remorseful for what they have done. This will result in a better sentence outcome.

Defendants can change their plea at any time throughout a criminal proceeding, but they are less likely to receive a sentencing discount if a plea is changed last minute. However, it is easy to change a plea from “not guilty” to “guilty” than the other way around.

Generally, for serious charges, a defendant will receive a 25% sentencing discount if they plead guilty before committal in the Local Court, a 10% sentencing discount if they plead guilty up to 14 days before the first day of trial in the District or Supreme Court and a 5% discount in all other circumstances.

For example, if a person pleads guilty to an offence before committal (in the local court) and would have otherwise been sentenced to four years imprisonment, they will receive a 25% discount on sentence and be sentenced to three years imprisonment instead.

Judges retain the discretion to provide no sentencing discount (or a lesser discount) in cases of extreme culpability. However, it is always worth weighing up the benefit of a sentencing discount in deciding whether to plead guilty.


Do I Need A Criminal Lawyer If I’m Pleading Guilty?

It is in your best interests to have a lawyer represent you even if you are pleading guilty.

After your plea, a sentencing hearing will be held to determine your punishment.

Depending on the charges, there are a number of sentencing options available in NSW courts including no conviction section 10 penalty, convictions with no penalty, fines, deferrals of sentence for rehabilitation, community corrections orders and terms of imprisonment.

A lawyer can assist in making a “plea in mitigation” of sentence for you, that is, making a number of persuasive sentence mitigating arguments to the court that can significantly improve the sentence outcome.

Some things that can support a plea in mitigation include:

  • Contextual information, such as why your personal circumstances contributed to your offending and how things have changed to demonstrate why it is unlikely it will happen again.
  • Character references from employers, friends or high standing members of the community indicating that despite your offending, you are otherwise a person of good character and unlikely to re-offend.
  • Reports from psychologists, doctors or other medical professionals providing context to your offending and indicating prospects for rehabilitation and if a mental impairment such as depression, anxiety or more serious condition contributed to your offending behaviour which can significantly reduce the ultimate sentence imposed. A criminal defence lawyer will usually have selected hand-picked expert psychologists or psychiatrists who specialise in these types of court reports to ensure they address the right points in the report for the court to take into account before imposing a sentence.
  • Court statistics indicating the kind of sentences given to people who have been found guilty of similar charges with similar features to your case in similar circumstances.
  • Indications of remorse, such as a letter of apology to the Court or to victims of your offending.
  • Negotiation of the police facts sheet which is one of the most important features in determining whether to impose a lenient or severe penalty on sentence. An experienced criminal defence lawyer will begin negotiations early with the prosecution to change the facts to reflect what really happened to place you in a better light which can significantly reduce the level of criminality usually warranting a more lenient sentence. This can make a difference between getting a section 10 non-conviction or conviction in some cases. In the very serious cases, it can make a big difference between getting a Full time jail sentence and a non-jail sentence. The negotiating of facts should be done as early as possible and through the correct channels.

You shouldn’t think that just because you are pleading guilty, there is no reason to contact a lawyer. On the contrary, some of the key benefits of engaging a criminal defence lawyer is that they are experts in making pleas in mitigation and ensure that your story is told to ensure you are given a voice in a circumstance it usually overwhelming feels like the police are the only ones with a voice and power.

The decision whether to plead guilty or not guilty is a complex one and should be done after searching for and with the assistance of the best criminal lawyers Sydney has to offer.

AUTHOR Jimmy Singh

Mr. Jimmy Singh is the Principal Lawyer at Criminal Defence Lawyers Australia - Leading Criminal Lawyers in Sydney, Delivering Exceptional Results in all Australian Criminal Courts.

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