A plea bargain is an agreement in a criminal matter between the prosecutor and defendant whereby the defendant agrees to plead guilty to a particular charge in return for some concession from the prosecutor. Plea bargaining generally involves the defendant to plead guilty to a less serious charge, or to one of a number of charges, in return for the dismissal of other more serious charges. The defendant may also plead guilty to an original charge, rather than continue with a trial, in return for a more lenient sentence.

Although plea bargaining is encouraged by legislation, there are a number of factors which influence a prosecutor’s willingness to bargain. These include:

  • whether you are willing to take responsibility of an offence by pleading guilty
  • the strength of the evidence against you
  • the prosecutor’s risk of losing if the matter is taken to court
  • facts that persuade the prosecutor to believe that the original charge was overstated or that the police misunderstood or exaggerated your role in the offence
  • the opinions of the police and victim
  • your lawyers reputation and likelihood of winning trials

Guidelines adopted by the NSW Director of Public Prosecutions (DPP) encourage prosecutors to engage in plea bargaining with defendants. These guidelines allow for the dismissal of charges in return for a guilty plea given one of the following is true:

  • a victim would be spared the trauma of testifying
  • the victim has expressed a desire to not proceed with the original charge
  • the evidence that supports the charge is week
  • substantial time and resources will be saved by avoiding trial, when viewed in light of the trial’s likely outcome
  • the charge to which the plea is entered reflects the “essential criminality of the conduct” and permits an appropriate sentence

It is important to remember that police do not have the power to engage in plea bargaining. This authority is assigned solely to prosecutors. No “deal” that the police offer is enforceable in court. It is best to give little to no information when speaking with police until you have obtained advice from a legal professional. The police are acting in their best interests, rather than in yours.

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