Between 87 and 100 per cent of all guilty pleas in Victoria are the result of plea deals, according to new research from Monash University.
The research forms the basis of a recently published book, Plea Negotiations: Pragmatic Justice in an Imperfect World (2018, Palgrave MacMillan) by Dr Asher Flynn (Senior Lecturer in Criminology, Faculty of Arts) and Emeritus Professor Arie Freiberg (Faculty of Law) which reveals new information about the use of plea negotiations in Victoria.
The authors interviewed 48 judges, magistrates, prosecutors, defence lawyers and legal aid practitioners and had unprecedented access to 50 Victoria Legal Aid case files.
The book finds that unrepresented accused persons are at a disadvantage in attempting to negotiate with police prosecutors, and are at greater risk of succumbing to pressures to make agreements without fully understanding the implications of their guilty plea.
With reductions in funding and tightening of eligibility criteria for Victoria Legal Aid service provision leading to an increased number of self-represented accused persons, the issue of plea deals is more important than ever.
· Between 87 and 100 per cent of all guilty pleas in Victoria are the result of plea deals
· On average, 3 charges were withdrawn per case in order to facilitate a guilty plea – meaning the offender pleaded guilty to fewer charges.
· Evidence of mental illness among accused persons was presented in 60 per cent of the case files, and the interview data suggested the rates are even higher.
· Reductions in funding and tightening of eligibility criteria for Victoria Legal Aid service provision has increased the number of self-represented accused persons. This affects the role of the magistrate and the police prosecutor (who are inappropriately being forced to become quasi-defence practitioners) and has created more delays in the system.
· Unrepresented accused persons are at a disadvantage in attempting to negotiate with police prosecutors, and are at greater risk of succumbing to pressures to make agreements without fully understanding the implications of their guilty plea.
· Mandatory sentencing regimes (such as the mandatory four-year minimum for gross violence offences) put pressure on accused persons to accept an agreement to plead guilty to a lesser offence that does not carry a mandatory penalty, even where there may be a strong case that the accused is not guilty of that lesser offence. These regimes also sometimes place pressure on prosecutors to negotiate a plea of guilty to an offence that does not carry a mandatory sentence, in order to avoid going to trial.
· The most common forms of plea negotiation used in Victoria are:
1. Withdrawing charges (removing charges)
2. Substituting charges (a less serious charge)
3. Rolling up counts (combining like offences into one charge or fewer charges)
4. Representative counts (representing a course of conduct)
5. Negotiating the summary of facts (fact bargaining)
6. Agreement as to what the prosecutor will submit as part of their sentencing submission (for example, whether a non-custodial sentence is within range)
· The offences most commonly negotiated are where multiple alternative charges exist, for example:
· Intentionally or recklessly causing serious injury
· Intentionally or recklessly causing injury
· Gross violence offences (which carry a mandatory minimum non-parole period)
· Aggravated burglary
· Armed robbery
· Drug offences
· The offences least likely to be negotiated are:
1. Homicide offences: due to the seriousness of the crime and the high level of public interest in the prosecution.
2. Sex offences: 66 per cent of participants identified these as the most challenging offences to negotiate, given the high acquittal rate, which participants said provided an incentive to ‘risk’ a trial. The study also found that the sex offender registration scheme is a key limitation in encouraging guilty pleas, with participants describing it as one of the biggest hurdles to successful negotiations.
3. Family violence: because there is a perceived ‘public interest’ in matters being seen to be treated with the utmost seriousness, there has been a change in police charging practices and approaches to prosecuting family violence cases. The study also found participants were generally concerned about the potential for the escalation of violence in these cases (which may even lead to a fatality), and the repercussions for Victoria Police if this were to occur.
Plea deals involve a discussion between the prosecutor and defence practitioner (or the accused), where certain concessions are made, such as withdrawing charges and reducing the severity of charges and case facts.
Plea Negotiations: Pragmatic Justice in an Imperfect World is authored by Dr Asher Flynn (Senior Lecturer in Criminology, Faculty of Arts) and Emeritus Professor Arie Freiberg (Faculty of Law).