Criminal Case Conferencing Trial Bill 2007
Objectives:
The object of this Bill is to establish a 12-month trial scheme commencing on 1 May 2008, and limited to certain indictable proceedings being heard in certain courts, that will:
Codify the discounts on sentence to be allowed by the courts in respect of guilty pleas;
Reduce the maximum amount of sentence discount that may be allowed for guilty pleas in those proceedings; and
Require the legal representative of an accused person and the prosecution to participate in a compulsory conference for the principal purpose of determining whether there is any offence to which the accused person is willing to plead guilty before the accused person is committed for trial or sentence.
Comments:
I welcome the amendment to the Crimes (Sentencing Procedure) Act 1999 to limit the maximum discount for defendants pleading guilty to criminal charges to the first available opportunity at the Local Court stage of criminal proceedings.
The new measures outlined in the Criminal Case Conferencing Trial Bill 2008 will help to alleviate the suffering of victims of crime and their families, and give them early closure. There will also be reduction in costs both to the Court and to the parties involved because up to half of criminal prosecutions turn into pleas of guilty on the first day of trial. Also, the costs incurred in the preparation of such trials are significant.
Recent statistics indicate that there has been a disturbing trend in the practice of late pleas of guilty in criminal trials in NSW, and late termination of proceedings.
Criminal Courts statistics for 2003 revealed that of the 2,102 matters committed for trial to the District Court, only 578 or 27.5% actually proceeded to trial. In 263 or 12.5% of those matters, no charges were proceeded with.
Statistics also indicated that in 2002/2003 there was a plea of guilty on the first day of trial in: 49% of State matters before the District Court, and 40% of Commonwealth matters.
In late 2003, Legal Aid undertook a comprehensive study of the impact of late pleas of guilty in matters listed for trial in the District and Supreme Courts in August 2003. There were two significant outcomes of the analysis. The first was that 87% of legally aided trials assigned to private practitioners resulted in a plea of guilty on the first day of trial. The second was that in 68% of matters where a plea of guilty was entered, the indictment was changed on the day of trial. By about 2004, there had been a 20% increase in matters committed for trial to the District Court.
According to the NSW Bureau of Crime Statistics and Research, in 2006 there were 1,839 cases finalised up to committal for trial to the District Court, 496 had proceeded to trial and 1,060 had proceeded to sentence. In 283 matters, no charges were proceeded with at all.
In essence, these figures confirmed what remains common knowledge within the profession: that a significant number of matters committed for trial result in a plea of guilty, or do not proceed because the Office of the Director of Public Prosecutions no bills or directs no further proceedings, on the day or the eve of trial.
The figures have highlighted a significant resources issue for criminal justice agencies: that a large number of matters were being prepared for trials that did not proceed, as well as the trauma and distress caused to witnesses – particularly the victims.
The first part of the Criminal Case Conferencing scheme requires parties, whilst still in the Local Court, to attend a compulsory conference.
Case Conferencing had its genesis in Criminal Case Processing, as statutory reforms proposed by the NSW Government. However, unlike the Criminal Case Processing, Case Conferencing is not supported by legislation. Instead the scheme has been implemented administratively.
The two main features of the Case Conferencing scheme are: The Office of the Director of Public Prosecutions NSW provides an advice service to NSW Police as to the appropriateness of proceeding with particular charges, and the nature of charges to be laid; and Face to face conferences are held between the prosecution and the defence to consider the evidence and the appropriateness of a plea as early as possible. However, under this model it will be compulsory for all practitioners, whether privately funded or funded by the Legal Aid Commission, to attend.
Criminal Case Conferencing Trial Bill 2008 will improve four areas in the NSW criminal justice system
Firstly, determining the appropriate charge at the earliest opportunity;
Secondly, providing the Crown brief to the defence expeditiously;
Thirdly, introducing a formal process for negotiation of charges, facts, and/or jurisdiction at an early stage of the proceedings; and
Finally, ensuring that those who plead early receive an identifiable discount for the utilitarian value of the plea.
I maintain support for the introduction of a statutory model for case conferencing but would welcome the Government’s considerations on the following unresolved issues.
Clause 8: Brief of evidence
The consultation draft Criminal Casen Conferencing Bill 2007 provided that the brief was to include:
a brief outline of any other relevant information, documents of other things that may be used as wholly corroborative evidence in the proceedings that is of a kind prescribed by the regulations.
This requirement was supported on the basis that it would exist in the transparency and efficiency of conferencing. It was however been excluded from the Bill and it should be reinserted as clause 8(1)(c).
Clause 11: Persons who are to be present at compulsory conference
The conference is able to provide a formal setting where the legal representatives of an accused person and the prosecution consider the evidence, and to discuss the prospects of entering an appropriate plea, or reaching an agreement based on the facts, before the accused is committed for trial.
However, I agree with some of the recommendations put forward by the Law Society of NSW. The accused should attend the compulsory conference, or at least be available to give instructions via video link during the conference.
However, clause 11 provides that only the legal representative of the accused and the prosecutor are required to attend the conference, and they can be present in person or via AVL. The Bill does not require the accused to be present. The legal representative must obtain written instructions from the accused before the conference “unless it is reasonably practicable to obtain those instructions in person, by audio visual link or by telephone during the conference” (clause 11 (3)).
The principal purpose of the conference is to determine whether there is any offence to which the accused is willing to plead guilty to before being committed to stand trial. There is a much greater likelihood of this occuring if the accused is available to give instructions to his or her legal representative during the course of the conference. Getting written instructions in anticipation of all of the possibilities arising during a case conference is all but possible. The absence of the accused also makes the completion of agreed facts (clause 12 (3)(e)) unrealistic.
If compulsory conferences are to be successful, the legislation should require the accused person to attend the compulsory conference in person or by way of audio visual link. If the accused does not want to attend the conference, then it should be in circumstances where the “accused person has authorised their legal representative to be present and to act on written instructions during the conference”. In all other cases, and especially if the accused is in custody, the Bill should require that the accused is present or available by way of audio visual link.
The Bill should specifically provide that if the accused person is in custody, the Magistrate can make an order directing that the accused person be brought to court or be present via AVL for the purpose of the conference.
The case conference provides a formal mechanism for meaningful negotiations between the prosecution and the defence of charges, facts, and jurisdiction at committal stage. To achieve meaningful negotiations at this point in the process requires:
Service of the complete brief of evidence,
That practitioners read and carefully analyse the brief and obtain full instructions so that they are conversant with the Crown case, able to make an assessment of the outcome of the trial, and able to negotiate effectively at the Conference,
That the ODPP representative have delegated authority to make offers to and accept offers from the defence representative at the Conference, and
That any agreements negotiated at the Conference are binding on the prosecution.
A conference certificate, which outlines the offences to which the defendant has agreed to plead guilty, is to be signed and filed with the court. Any agreement reached at the case conference is binding on the Crown Prosecutor or a solicitor of the DPP for the purpose of sentence proceedings. This binding agreement does not relate only to the fact of the plea. The compulsory conference certificate is admissible as evidence before a sentencing court only for certain limited purposes relating to the imposition of a lower penalty for a guilty plea.
Clause 16: Sentencing for certain indictable offences taking into account guilty plea
Neither the original statutory model developed in 2005 nor the draft Criminal Case Conferencing Trial Bill 2007 incorporated considerations relating to contrition and other benefits in the discount elements. The policy aim was to set the maximum discount value for the utilitarian value of the plea, with discount factors for contrition and other benefits applying separately.
I would therefore seek a fuller explanation as to the basis on whcih the discount cap for the guilty plea now accounts not only for the utilitarian value of the plea, but also include any other benefit associated with or demonstrated by the guilty plea, including contrition (clause 16(2)), with a maximum discount of 25% to apply. The discount cap of 25% should represent the utility of the guilty plea only, with discounts above this is available at judicial discretion.
Clause 17: Discount for utility of guilty plea
Finally, the Bill will allow for an identifiable and appropriate discount to attach to an early plea of guilty. The discount allowed on sentence for the savings to the criminal justice system resulting from an early plea is known as the utilitarian value of the plea. It is separate to an assessment of remorse and is not dependent upon the strength of the Crown case.
The current wording of Section 22 allows for the exercise of discretion in imposing a discount following a plea of guilty. In the guideline judgment of R v Thompson; R v Houlton (2000) NSWCCA 309, the Court of Criminal Appeal recognised the scepticism of the profession in relation to any real discount to the accused for an early plea:
“Nevertheless the scepticism about the benefits of an early plea, which appears to be widespread amongst the participants in the NSW criminal justice system, does suggest an element of inconsistency. Most significantly, however, the evidence available to this court indicates the scepticism is reflected in annual practice: where pleas occur they tend to be late. One reason for that fact is the scepticism about the benefits afforded. Consequently, a view developed in the profession that in some instances there was nothing to be lost by taking a matter up to trial allowing for a late consideration of the evidence and the offer, if any, made on the eve or morning of trial.”
The guidelines set out in the judgement encouraged sentencing judges to quantify the effect of the plea on the sentence, particularly the utilitarian value. The Bill provides for a discount of 25% if the offender pleads guilty at any time before committal. A discount of up to 12.5% may be allowed if the offender pleads guilty at any time after committal. However, a discount that is greater than 12.5% but not greater than 25% may be allowed if substantial grounds exist for allowing a greater discount.
However, there is no provision for judicial discretion to allow a discount above 12.5% where a guilty plea has been entered after committal, and that the factors applying in these circumstances are strictly circumscribed as the “substantial grounds” set down in clause 17(5). I am concerned that these grounds may not accommodate legitimate circumstances where a late plea should allow for a greater discount, such as the late service of material by the Crown. The legislation should provide for judicial discretion to accommodate circumstances where it is manifestly unreasonable to refuse consideration of a greater discount.
Conclusion:
The Criminal Case Conferencing Trial Bill 2008 will provide enhanced justice outcomes through greater charge and sentencing certainty, and to significantly reduce the cost associated with late pleas.
There are benefits to the accused, victims, criminal justice agencies, and the community as a result of an early plea of guilty. The success of the case conferencing 12-month trial scheme depends largely on the good faith of all relevant stakeholders.
I am pleased to support the Criminal Case Conferencing Trial Bill 2008 and I commend it to the House.