EAGP Matters - NSW

All criminal matters in New South Wales that are sufficiently serious to warrant committal from the NSW Local Court to the NSW District Court or Supreme Court must go through what is known as the Early and Appropriate Guilty Plea Scheme (EAGP).
The EAGP Scheme is designed to encourage parties to consider the strengths and weaknesses of any criminal prosecution at an early stage and reduce the number of contested matters being committed for an eventual jury trial in a higher court. The process focusses prosecutors on reviewing prospects of charges while the matters are still in the Local Court and focusses defendants and their lawyers on carefully examining prospects of defending matters at an early stage. The Scheme provides incentives for defendants if pleas of guilty are entered in the Local Court and significantly reduces those incentives if pleas of guilty are entered later in the District or Supreme Court.

Unlike charges that are to be dealt with summarily in the Local Court, there is no requirement for defendants to enter pleas of guilty or not guilty at the first mention to charges that would in due course be committed to the District or Supreme Court. At the first mention of the matter in the Local Court after bail is decided, if any bail application is required, the court will simply adjourn the matter for several months and make directions for NSW Police to serve a copy of the brief of evidence on the defendant personally or on their lawyers. There is no requirement for a plea of not guilty to be entered in order for brief service orders to be made.

After the brief of evidence is served, the matter is further adjourned for police to provide a copy of the brief to the NSW Office of the Director of Public Prosecutions (ODPP) so that they can engage in a process known as charge certification. This process requires a sufficiently senior prosecutor to review the brief as to whether or not there are reasonable prospects of conviction for each charge, and where appropriate whether it is in the public interest for each charge to continue. The ODPP may also at this time decide that more or alternative charges are warranted in place of the charges originally laid by police.

By the time the matter is next before the court, the ODPP is expected to file a Charge Certificate certifying the charges that will or will not proceed to be decided. The matter may be adjourned a number of times to allow the ODPP further time to complete this process. Under s68 of the Criminal Procedure Act 1986 (NSW) the court has the theoretical power to dismiss charges if a Charge Certificate is not filed within 6 months after the first return court date. However, whilst this provision might be raised from time to time it is very rare for a court to intervene to such a significant extent and actually dismiss at charge at this stage.

After the Case Conference is finalised the parties return to the Local Court for committal. At this time the court will expect the defendant to either enter pleas of guilty or not guilty to the charges. If all the pleas entered are pleas of guilty, the matter will be committed to the District or Supreme Court for sentencing at a later date. If all pleas are not guilty, or at least some are not guilty, the matter will be committed for trial at a later date.

The Local Court will also require the ODPP to file the Charge Certificate and Case Conference Certificate before the matters can be committed.

In some rarer contested cases, charges might only be committed to a higher court after a committal hearing. In the past committal hearings were common and allowed for extensive cross-examination of a complainant and other witnesses. These provisions have since been significantly curtailed.

A defendant’s lawyers are not permitted to cross-examine at a contested committal hearing any complainant in child sex offence. For adult complainants in sexual offences and other violent offences, a defendant’s lawyer can only cross-examine them if satisfying a court under s84 Criminal Procedure Act 1986 (NSW) that there are substantial reasons that are in the interests of justice. This a high bar and cross-examination of these witnesses at committal is rare.

If a defendant enters a plea of guilty to a charge before it is committed from the Local Court to either the District Court or Supreme Court, they generally secure a 25% discount on their later sentence. This usually applies as a discount to the length of a sentence of imprisonment but can apply to other sentences such as a Conditional Release Order, Community Corrections Order or Intensive Corrections Order. The timing of a plea of guilty can also be relevant where a court is considering reducing the type of penalty from a more serious sentencing option to a less serious option. For example, a plea of guilty could be relevant in the court deciding not to impose a custodial sentence where it otherwise would have if the matter had been unsuccessfully taken to trial.

It is important to note that the timing of the guilty plea operates as a discount on the sentence. The courts have repeatedly stressed that every defendant has the right to contest a matter at hearing or trial if they wish, and they must not be punished merely for exercising that right. An unsuccessful defendant would not be entitled to any discount on their sentence of course. However, there are some circumstances in which a court can still apply a discount if the defendant assisted in facilitating the administration of justice under s22A of the Crimes (Sentencing Procedure) Act 1999 (NSW), for example by significantly narrowing issues in dispute at the trial.

Section 25D of the Crimes (Sentencing Procedure) Act 1999 (NSW) sets out the limits of the sentencing discounts available, depending on the timing. If the plea is entered when the matter is still in the Local Court, the 25% discount applies. Once the matter is committed to the District Court or Supreme Court the discount reduces to 10% if the plea is entered at least 14 days before any trial had been scheduled to commence. A 5% discount applies in any other case.

For new charges or counts that are laid against a defendant after the matter has already been committed to the District Court or Supreme Court, a 25% discount is provided if the defendant pleads guilty “as soon as practicable” after the new charge or count is laid. The same 10% or 5% discounts apply for new charges depending on whether the plea is entered more than 14 days prior to the trial. These provisions do not apply if the new charges are laid rely substantially on the same evidence that had already been included in the brief of evidence and a defendant had not earlier offered to plead guilty to charges equivalent to what were later laid.

The discounts set do not always automatically apply. The court retains discretion to set a lower discount than usually applies. For example, under s25F of the Crimes (Sentencing Procedure) Act 1999 (NSW) the court can decline to apply the sentencing discount or reduce the discount if it considers that the level of culpability for the commission of the offence is so extreme that the community interest in retribution, punishment, community protection or deterrence supports the adjustment to the discount. Generally, the courts accept that the significant utilitarian value (for example in avoiding delays and witnesses from having to attend court etc) of entering a plea of guilty at an early stage should justify the usual statutory reduction. In cases such as r v FD (2006) 160 A Crim R 392 and Lehn v The Queen (2016) NSWLR 205 the courts have also emphasised that the level of the plea of discount can be reduced at the discretion of the court in taking account a range of relevant considerations.