Did you know, if you are charged with a Strictly Indictable matter on or after 30 April 2018 you are now subject to new legislation and processes of negotiation and communication between the Crown and your Solicitor?
The Rationale
The NSW Government has implemented these reforms with the intention to make the Court process quicker, reduce victim stress and alleviate court delays for the accused persons which in turn will deliver more “certain justice”.
The NSW Government has largely relied on the following statistic:
- 73% of serious criminal cases result in the defendant pleading guilty however
- Only 23% of the guilty pleas are not entered until the day of Trial.
The Process
The new legislation includes strict timetables for which either the Crown or Accused’s Solicitor need to complete certain part of the process.
1. Early Disclosure
Police are required to serve the Brief of Evidence on the accused within 8 weeks of the first Court date. The evidence is not required to be in ‘admissible’ form, but rather, “evidence that could reasonably effect the strength of the case”.
The Police Prosecutors will have carriage of the matter up until the Brief of Evidence has been completed by the Officer In Charge. The Brief will then be sent to a Solicitor from the Office of Director of Public Prosecutions (ODPP) to take over the matter.
2. Charge Certification
Once the Brief has been sent to the ODPP, a more senior Solicitor, Trial Advocate or Crown will be allocated the matter for review of the charges.
This is to ensure the Police have laid the correct charge in accordance with the allegations and in the view of the ODPP that there is enough evidence to continue with the charge.
The person with carriage of the matter of the ODPP will then certify the charge.
The ODPP have 6 months from the date the charge is laid to certify the charge. If this does not occur, the Magistrate has the power to allow a further adjournment, or to dismiss the charge.
3. Case Conferencing
From the date the charge is certified, and a plea of not guilty has been maintained, there is an 8 week period for the ODPP and the Solicitor for the accused to engage in a case conference.
This conference is for the purpose of conducting negotiations, discuss the charges and narrow any issues that are likely to arise at Trial.
4. Case Conference Certificate
This is a document that will include any formal offers made by the Defence and the ODPP before, during and after the case conference.
This is the final opportunity to secure the full 25% discount on sentence for a plea of guilty.
Other Changes
Committal proceedings or hearings no longer exist and Magistrate’s in the Local Court will no longer have the power to discharge any Strictly Indictable matter.
Mandatory Sentencing Discount
In very simple terms, Judges no longer have a discretionary power to determine appropriate discounts on sentence according to when a plea of guilty is entered.
Currently, it is available for a District Court Judge to apply a large discount on sentence, even in circumstances where the plea was not entered at the earliest opportunity. The legislation prohibits this ability and now prescribes the following discounts for a plea of guilty as follows:
Before Committal in the Local Court 25%
Up to 14 days before the first day of Trial 10%
In any other circumstances 5%
Judges will retain their discretionary power to provide no discount on sentence in cases of ‘extreme culpability’.
Final Note
It is important to remember, these legislative changes as discussed above are applicable only to those who have been or are charged on or after 30 April 2018.
For more information on the above contact Sharon Ramsden on (02) 4626 5077 or sramsden@marsdens.net.au
The contents of this publication are for reference purposes only. This publication does not constitute legal advice and should not be relied upon as legal advice. Specific legal advice should always be sought separately before taking any action based on this publication.
