Chapter 8: Pleas

This section deals with:

  • what to consider before making a plea;
  • when to plead guilty; and
  • when to plead not guilty.

See also Sentencing.

Considering the implications of a guilty plea

You can enter a plea of guilty at any time, but doing so makes it very difficult to change your mind later. Make sure you are certain that this is the best thing to do before you plead guilty to anything. There will be pressures to plead guilty early – in particular, the promise of a lower penalty for an early guilty plea – but resist this pressure until you've had time to consider the matter carefully.

Seek out legal advice on the charges against you before you make the important decision of how you will plead to a charge. You might feel you are guilty of a particular charge, being unaware of the fact that a lesser charge is more appropriate. For instance, police might charge you with assault occasioning actual bodily harm (an offence under the NSW Crimes Act 1900), when the more appropriate charge is common assault. The first carries a higher maximum penalty of five years' jail, the second charge only two years' jail. There are many cases where there are such alternative charges, and police may lay more serious charges than are appropriate. In this case, it would be against your interests to plead guilty to the more serious charge without first considering whether a lesser charge might be more appropriate.

In another circumstance, you might be unaware that there is a defence available to the charge. For instance, with a charge of assault, and even if the basic facts are not in dispute, it might be open to you to plead not guilty and argue self-defence. Alternatively, with a charge of obstruction you might feel that you were indeed obstructing someone, but you might be unaware that there may be a defence of 'reasonable excuse' to this charge (for example, under the NSW Summary Offences Act 1988).

If you intend to plead guilty, make sure you check the police 'statement of facts'. If there are inaccuracies (including possible errors over past convictions), make sure you point them out to police and to the magistrate. Make a formal 'objection' to the magistrate if an inaccurate 'fact sheet' is presented.

Some people plead guilty to charges (or additional charges) they have not committed, in order to protect their partners or children, or as part of a bargain with police. In these cases too, take some time to fully consider all the implications of your act. Remember that it is almost impossible to appeal a conviction which results from a plea of guilty – and once you have a conviction, it will appear on your police record and may have implications for such things as your future employment and travel prospects.

When should I plead guilty?

There are advantages and disadvantages to pleading guilty. Weigh these up before deciding what to do. Listen to what people have to say but remember that no person, and in particular, no police officer or lawyer, should place any pressure on your choice. Remember that it is your decision, and you will have to live with it.

The advantages of pleading guilty are these:

  • you should receive a lesser sentence for pleading guilty early, and for saving the time and expense of the courts and witnesses;
  • you will spend less time in court and possibly endure less embarrassment and stress;
  • you may save money on lawyers' fees, if you are paying them;
  • you may be able to put the matter behind you, deal with it more quickly and get on with the rest of your life;

The disadvantages of pleading guilty include:

  • you may pass up a chance of acquittal;
  • it is virtually impossible to appeal the conviction;
  • the conviction will remain on your police record;
  • it is more difficult to complain about any mistreatment you may have received in the course of your arrest and court proceedings.

However, if the case against you looks bad, if it is clear that you are guilty and that the correct charge has been laid, then it is usually advisable to plead guilty. You can still argue factors in 'mitigation' – circumstances that may be taken into account to reduce the penalty.

A magistrate or judge is usually obliged by law to give you credit for a guilty plea (and more for an early plea than a late one), and this may reduce your penalty. However, this 'discount' is not the same in all circumstances.

If it emerges that there is clear evidence of your guilt – and the magistrate believes you knew you did the wrong thing but have simply tried your chances by defending the charge against all the odds, putting the witnesses and the court to trouble and expense for no good purpose – then your penalty may be more severe, as the 'discount' for a guilty plea does not apply.

However, where you have a reasonable defence, and do not believe you did anything wrong, then it is not necessarily the case that you will receive a greater penalty if you are found guilty. To the contrary, pleading guilty in these circumstances may suggest that you knew you did the wrong thing, and so you are inviting a harsh penalty.

As a general rule, do not plead guilty to a charge if you believe, after due consideration of all the facts, that you have not done anything wrong.

Minor offences may be dealt with at any 'mention' where a guilty plea is entered. However, it is usually not in your interests to have the case heard immediately, with no preparation. You are entitled to ask for a reasonable time to seek legal advice and to prepare your case. Ask for an adjournment to seek legal advice if you are not ready to proceed.

When should I plead not guilty?

Plead not guilty to a charge if you believe, after due consideration of all the facts, that you have not done anything wrong. Also plead not guilty if you believe the charge is inappropriate or excessive.

It is your right to defend any charge laid against you, and by law (Australian law and international human rights law) you are entitled to be presumed innocent until proven guilty; though the police and the media may not always share this view.

The advantages of pleading not guilty are these:

  • the prosecution is 'put to proof' – they must prove your guilt, and you must have the benefit of any reasonable doubt;
  • you remain in a morally strong position and can be more assertive of your rights through the entire process;
  • you have a chance of acquittal – if you are acquitted you are then clear of the charge and no conviction is recorded.

The disadvantages of pleading not guilty are:

  • there will be a hearing with witnesses giving evidence against you; in some cases this hearing may be long and stressful;
  • you will need to prepare and take 'time out' for what might be a prolonged court battle;
  • if you are not eligible for legal aid, you will either need to spend a good deal of extra time yourself in preparation, or pay a lawyer substantial amounts of money; the costs will be greater than those for a guilty plea.

After a plea

If you plead guilty, a date will be set for sentencing. You will not receive a full brief of evidence, with statements. At sentencing you can present arguments and, if you wish, evidence. As these arguments and evidence do not take a long time, sentencing will begin fairly quickly. In the Local Court, sentencing may proceed immediately after a guilty plea is taken. For the full benefit of pleading guilty to a serious offence in the superior courts, your plea should not be entered any later than the second 'arraignment' day (that is, a brief appearance to take a plea) after your committal.

If you plead not guilty, a date will be set for a hearing or trial. You will receive a full brief of evidence, with statements. The length of the hearing will depend on the amount of evidence. If the charge is a serious one, requiring a trial by jury, there will be a preliminary hearing before a magistrate (a 'committal hearing'), followed by the trial. If there are many witnesses, it may be several months before the committal hearing (and later the trial) begins (see Hearings and trials).

At any stage prior to trial you can change a not guilty plea to guilty, and a date will be set for sentencing. However, you can only change a guilty plea to not guilty if there are special circumstances (typically if you were unrepresented and didn't understand the charge). Remember also that you may be compromised in other ways by pleading guilty, then changing your mind. Think carefully before making your plea.