10 / 6 / 2025

Plea Bargaining

Plea bargaining (also known as charge negotiation or representations) is a common and integral part of our criminal justice system, occurring across all Australian jurisdictions. The primary objective of plea bargaining is the swift resolution of a criminal matter without the expense and harm cause in having to go to trial. A plea bargain is generally in the form of a defendant agreeing to plead guilty to a lesser charge or fewer charges, or to less serious facts for sentencing, in exchange for a withdrawal of other charges, or the removal of more serious alleged facts for sentencing.

Legal Framework

In New South Wales, the legislative framework for charge negotiations is contained within the Crimes (Sentencing Procedure) Act 1999. For example, Section 35A of the Act requires that the prosecution must file a certificate indicating that they have consulted with victims before accepting any deal. Further, this provision also stipulates that the agreed facts upon which the eventual plea of guilty depends “constitutes a fair and accurate account of the objective criminality of the offender”.

More broadly, the process of charge negotiation is governed by the Office of the Director of Public Prosecutions (ODPP) Prosecution Guidelines. The framework contained therein provides clear guidance for prosecutors and defence lawyers to adhere to during negotiations to ensure a fair and transparent process. Amongst other things, the guidelines highlight the importance of maintaining written records of all negotiations and correspondence between parties. Other key principles include:

  • The proposed substitute charges should adequately reflect the seriousness of the criminal conduct;
  • There must be adequate evidence to support the charges;
  • The victim’s and police views should be considered;
  • Negotiations should not be based solely on expedience.

The Process

The process of charge negotiations can be commenced by either the prosecution or defence at any point during the criminal proceedings, including very soon after charges are first laid. Initiating negotiations earlier is often more beneficial for defendants seeking a more expedient, cost-effective and/or lenient outcome.

The duration of charge negotiations can vary significantly depending on the circumstances of the defendant’s case. In some instances, plea negotiations can be a relatively quick and straightforward process. In others, it may be protracted and quite complex. This is ultimately contingent on factors such as the nature of the alleged offending, the number of charges, and the conduct of the parties.

Whilst negotiations can be proposed and/or initiated by either party, the ultimate decision to accept or reject any deal resides with the Director of Public Prosecutions. Accordingly, the Director will consider the merits of each case, as well as the public interest in continuing or expediently concluding a matter when deciding whether to accept a plea bargain.

During the negotiation process, prosecutors act on behalf of and represent the Director. In doing so, they will meet with and engage directly in negotiation with the defence, communicating the Director’s position and conveying any subsequent offers. The defence lawyer’s primary role is to advocate on behalf of the defendant and obtain the most favourable offer for them. Following these negotiations, prosecutors will take any offer to the Director, whilst the defence will convey the offer to their client.

Once accepted by the court, it is generally incredibly difficult for a defendant to change their mind and withdraw pleas of guilty that have already been formally entered. In exceptional circumstances they may be able to withdraw their plea if they can establish that it was made involuntary or without full understanding of the consequences.

Factors Affecting Plea Negotiations

During the negotiation process, both parties will thoroughly consider a variety of factors that can influence the terms of any potential plea bargain. Ultimately, these factors will determine the strictness or leniency of any offer, as well as the flexibility of terms. Some of these considerations include:

  • The nature and seriousness of the alleged offending – More serious crimes, particularly those involving violence or significant harm, are far less likely to attract favourable or lenient plea deals for the defendant.
  • The strength of the prosecution case – If the case against the defendant is already quite strong or compelling, the prosecution will likely be less willing to negotiations involving reduced sentences or lesser charges. However, a weak prosecution case provides greater leverage for the defence to obtain a favourable outcome for their client.
  • The defendant’s prior criminal history – The prosecution may consider the extent of the defendant’s prior criminal history, as well as the severity of those past offences. Ultimately, defendants with more extensive and/or extreme criminal histories may be afforded less leniency during negotiations.
  • The views of the police officer-in-charge and victim – Prosecutors will also communicate with police and victims and consider their perspectives when determining the appropriateness of a plea bargain.
  • Court resources – Charge negotiations can be incredibly effective in alleviating the temporal and financial burdens associated with long and costly hearings. Prosecutors may therefore be more willing to grant leniency where a guilty plea would save considerable resources for the Court and all parties involved.

Benefits of Plea Bargaining

At the heart of plea bargaining is ultimately the inherent competing interests of each party. Whereas the prosecution seeks accountability and an outcome that serves the interests of justice, the accused pursues a favourable and lenient agreement. Plea bargaining in appropriate cases provides an enormous public benefit in avoiding what can be very significant costs for the state and defendant in otherwise proceeding to trial, and other stress and harm for all witnesses involved. The interplay of these competing considerations can often result in a variety of benefits for each respective party. Some of those benefits include:

  • Reduced charges and/or lenient sentences – One major benefit of charge negotiations for the accused is the possibility of having particular charges dropped or substituted for lesser offences in exchange for a guilty plea. Likewise, the prosecution may agree to make favourable sentencing submissions, advocating for more lenient sentencing outcomes for the defendant. However, it is important to note that accepting a plea bargain will not always result in a lighter sentence. Instead, the Court is not bound by these submissions and may still impose a harsh sentence.
  • Expediting Case Resolution – By agreeing to a plea bargain, defendants are able to resolve their proceedings far more quickly and with far greater certainty. This is far more cost effective, whilst also alleviating the on-going burdens on the offender’s personal life, employment, and relationships. Further, an expedient outcome allows offenders to commence the process of rehabilitation and reintegration sooner. This may also of course have huge benefits for a victim and state resources.
  • Avoiding Trial – An early plea of guilty allows a defendant to avoid the uncertainty, anxiety, and potential publicity of a court hearing. Again, this is also true for victims/witnesses who can avoid the strain of participating in an emotionally taxing trial and re-living past traumatic experiences.
  • Greater Certainty –Trials are often unpredictable and complex, meaning that going to trial can result in harsher and less favourable outcomes for the defendant, even where they believe that they have a strong defence. Therefore, an early guilty plea can avoid this uncertainty and affords the defendant greater control over the outcome of the proceedings.
  • Saving Resources – Avoiding a trial through charge negotiation can save, and otherwise free up an abundance of resources for all parties involved. For example, lengthy trials are typically very expensive, particularly for defendants who are paying for their own legal representation. Alternatively, early plea bargains also save and free up court resources, courtrooms, and judicial officers to be allocated towards other matters and proceedings.
  • Discounts for early guilty pleas – Where plea bargaining in successfully completed a good time before any potential hearing or trial would or could have been heard, a defendant will also likely receive the benefit of a further discount at sentence for pleading guilty to offences at an earlier stage.

 Potential Disadvantages

Whilst the charge negotiation process has a number of apparent advantages for defendants, there are nevertheless some concerns around its effects on the integrity and fairness of the criminal justice system. Foremost amongst these concerns is the risk that innocent defendants are pressured or coerced into pleading guilty to offences they have not committed in order to avoid the uncertainty and potential harsher consequences of going to trial. This, some would argue, can undermine the foundational principles of our criminal justice system such as the presumption of innocence and the right to a fair trial.

Conversely, in some instances concerns have arisen that plea negotiations may shield offenders from accountability insofar as reduced charges or lenient sentences may not adequately reflect the seriousness of the alleged offending and/or harm. To this extent, this can undermine community trust in the criminal justice system. Similarly, the negotiation of agreed facts during charge negotiation may result in the omittance of key details, thereby obfuscating the severity or extent of the alleged offending. This is ultimately why consultation with victims and informants is legislatively mandated during the negotiation process.

Considerations

 There are a variety of factors that a defendant should consider when determining whether to enter plea negotiations with the prosecution, and ultimately, whether to accept any proposed deal. The defendant, with advice from their legal representative, should always try to make an informed decision that achieves the best possible outcome for them. Some of these considerations include:

  • The strength or weakness of the prosecution case – this includes the likelihood of conviction, reliability of witnesses, the quality of physical evidence, and/or the existence of any exculpatory evidence.
  • The potential outcomes of going to trial – Going to trial and receiving a guilty verdict can often result in harsher sentences, whereas plea negotiations can result in more lenient outcomes and in some instances, lesser charges.
  • Whether or not the defendant accepts that they committed the offence charged or any offence at all.
  • Whether or not there is a potential defence available to the defendant.
  • The defendant’s willingness to go to trial.

Should you or someone you know be charged with an offence, it is essential you receive legal advice from an experienced criminal defence lawyer at any early stage. To discuss your options, call Hugo Law Group in Sydney, NSW (02 9696 1361), Canberra (02 5104 9640), Perth (08 6255 6909) or Northern NSW (02 5552 1902) to make an appointment to speak to one of our lawyers.

Sam Hines
Hugo Law Group
Sydney

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