What is a plea of guilty?

One of the many factors a judge or magistrate must consider when sentencing is a guilty plea. This includes whether the offender has pleaded guilty to the offence, or indicated that they intended to plead guilty, and at what stage of the proceedings. The earlier in the proceedings the offender pleads guilty, the greater the reduction they will receive in their sentence.

When sentencing an offender who pleads guilty, Victorian courts are almost always required to state what sentence they would have imposed if the offender had not pleaded guilty. This is provided for in section 6AAA of the Sentencing Act 1991 (Vic) and section 362A of the Children, Youth and Families Act 2005 (Vic).

Courts in the adult jurisdiction have to do this for all custodial sentences, fines of 10 penalty units or more and aggregate fines of 20 penalty units or more. The Children’s Court also has to do this for all youth justice centre orders or youth residential centre orders, and for youth attendance orders.

For adult offenders, the court only needs to indicate the sentence that it would have imposed (but for the guilty plea) in relation to the overall sentence and any non-parole period. If the offender is sentenced for more than one offence at the same time, the court does not need to indicate the sentence that would have been imposed for each individual charge.

In the Children’s Court, the magistrate must specify the sentence that would have been imposed for each individual charge.

We examined the effects of guilty pleas on sentencing outcomes in Victoria in our Guilty Pleas in the Higher Courts: Rates, Timing, and Discounts (2015).

Sentence Indication

Sentence indications allow offenders to obtain a broad indication of the sentence that they would likely face if they pleaded guilty to the offences.

There are differences in the sentence indication schemes that operate in the higher courts (County and Supreme Courts) and the Magistrates’ Court.

Sentence Indication in the Higher Courts

In the higher courts, an accused can apply for a sentence indication at any point in the proceedings after filing of an indictment (written charges). The accused can only apply for a sentence indication if the prosecution consents.

The higher courts sentence indication scheme is provided for in Part 5.6 of the Criminal Procedure Act 2009 (Vic).

If the judge agrees to give a sentence indication, they are given an agreed summary of the facts and any other relevant material. The judge then indicates whether they would be likely to impose an immediate custodial sentence if the accused pleads guilty at that point.

Sentence Indication in the Magistrates’ Court

The Magistrates’ Court sentence indication scheme is broader than the scheme in the higher courts.

In the Magistrates’ Court, a sentence indication may be given at any time during proceedings. This includes an indication of:

• whether or not the court would be likely to impose an immediate sentence of imprisonment
• the type of sentence that the court would be likely to impose (for example, a community correction order).

The Magistrates’ Court sentence indication scheme is provided for in Division 3 of Part 3.3 of the Criminal Procedure Act 2009 (Vic).

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When you plead guilty you are essentially electing to accept responsibility before the court for the offences you have been charged with. A plea of guilty can be entered at any stage prior to the contested hearing. However, you should be aware that the courts commonly extend a sentencing discount when dealing with people who are pleading guilty at an early opportunity. This means that they receive a slightly more lenient penalty than what they would have received if they had been found guilty by the court following a contested hearing. The courts will extend less of a ‘discount’ for a guilty plea the closer a matter gets to a contested hearing. When considering pleading guilty, it is essential to consider the charges laid against you, the police summary of facts and the strength of the evidence against you.

Before pleading guilty

When pleading guilty, it is often beneficial to your matter to write an apology letter and/or to obtain character references from people who know you in the community. Ideally, character references should be from people who know you in the context of work or study, rather than friends or family.

These documents can be tendered to the court for its consideration and can assist the magistrate to decide on the appropriate sentencing orders.

Apology letter

It is crucial that you do not make excuses for your actions in your apology letter.

An apology letter should generally include:

1. A genuine apology that demonstrates understanding of the consequences of your actions;
2. Any steps you have taken to address your behaviour since the offending;
3. Something about your circumstances i.e. your work, relationship status; and

Character reference

A character reference should include:

1. The name and occupation of the person writing the reference. It is crucial that all references be signed as without a signature the court cannot give any weight to the reference;
2. How long the writer has known you and where they met you;
3. That they are aware of the charges against you;
4. How they became aware of those charges;
5. If possible, how they can offer you guidance and support.

If the character reference is from your employer, it can also address any impact the recording of a conviction or a licence suspension would have on your employment.

Attending court

Once you arrive at the courthouse you will be required to attend the Criminal Coordinators Counter and file your appearance and advise them that you will be pleading guilty. The clerk will then inform you which court room your matter is to be heard in. Upon entering and leaving a court room, when court is in session, you should bow to the Magistrate. Also ensure that sunglasses and hats are removed before entering a court room.

The plea hearing

Depending how busy court is, you may have to wait a number of hours before your matter is called on. If you are representing yourself, once your name is called, you are required to make your way to the bar table in the middle of the court room where a prosecutor will already be sitting. The Magistrate will ask you what is happening with the matter and you will say that you are pleading guilty.

The prosecutor will then proceed to read the summary of facts. Once the Prosecutor is finished, the Magistrate will ask you whether you agree with the facts. If you indicate you agree, the Magistrate will find the charges proven. The Magistrate will then ask the Prosecutor whether they have anything to allege. If you have a prior criminal or traffic record this will be handed up to the Magistrate.

You will then have your chance to speak and explain to the Magistrate the circumstances of the offending. You should also tell the Magistrate:

• Who is supporting you in court, if anyone;
• What you have done to rectify your actions;
• What you learned;
• Personal information about yourself, such as:
  • Your age;
  • Your family status;
  • Whether you are working or studying;
  • How much you are earning;
  • If you support anyone financially;
  • Any personal problems you may be experiencing;
• How a loss of licence will significantly impact you (if it is a traffic offence);
• How a conviction will impact you (For example, if your employment requires you to undertake yearly police checks.

You may at any time tender your apology letter and character reference to the Magistrate to support your submissions. The process can be stressful. If it help you, you can write down what you wish to say and read it out in court.

Sentencing

Once all parties have made their submissions, the Magistrate will make an order sentencing you as they see fit. If the Magistrate imposes a fine, you may suggest to the Magistrate that you require more time to pay than what the Magistrate has ordered.

Appealing

If you believe the sentence imposed is unfair, you have a right to appeal the decision to the County Court.  An appeal must be lodged within 28 days from the date of your sentencing.

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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.

Crimes Act 1900

Summary Offences Act 1988

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.