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Plea Negotiations and Sentencing

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Plea Negotiations

Part of the book series: Palgrave Socio-Legal Studies ((PSLS))

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Abstract

Plea negotiations and sentencing are inextricably linked. While it is argued that sentencing is not a feature of Australian negotiations, this study found that discussions on sentencing are in fact a key component of negotiations. This chapter examines connections between various sentencing regimes, policies and negotiations. In particular, it examines the effect of mandatory and presumptive sentencing on plea negotiations; the use of sentence indications to encourage defendants to plead guilty (as an extension of the negotiation process); the role sentencing plays in discussions, including the effect of the High Court’s decision in Barbaro; and the requirement in Victoria that courts must state the sentence they would have imposed but for a guilty plea, as part of a transparent sentence discount process.

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Notes

  1. 1.

    [2014] HCA 2.

  2. 2.

    Sentencing Act 1991 (Vic) s 6AAA.

  3. 3.

    A mandatory sentence is one that must be imposed under any circumstances. A presumptive sentence is one that the court should impose unless there are exceptional circumstances that warrant a departure from the presumptive sentence.

  4. 4.

    Sentencing Act 1991 (Vic) s 5A(4).

  5. 5.

    [2015] VSCA 303.

  6. 6.

    These provisions were entirely abolished by the Sentencing Amendment (Sentencing Standards) Act 2017 (Vic). However, this Act introduced a number of presumptive sentences for a similar range of offences as the baseline provisions. In sentencing for a standard sentencing offence, a court is required to take the standard sentence into account as one of the factors in sentencing and must refer to the standard sentence in sentencing a defendant. It must also fix a set non-parole unless it is in the interests of justice not to do so. This sentencing regime is more flexible than the one it replaced but is still likely to be regarded by defence counsel and the courts as unnecessary restrictions on the sentencing discretion.

  7. 7.

    A court is not required to impose the mandatory sentence if “special reasons” exist, namely, that the defendant has assisted or has given an undertaking to assist law enforcement authorities, the defendant is between the ages of 18 and 21 at the time of the commission of the offence and proves that he or she has a particular psychosocial immaturity or impaired mental functioning, the court proposes to make a secure treatment order or residential treatment order in respect of the defendant or that there are substantial and compelling circumstances that justify doing so, Sentencing Act 1991 (Vic) s 10A; see, generally, SAC (2012) (baseline sentencing report) and SAC (2011) (Statutory Minimum sentences for Gross Violence Offences). Since the introduction of these pieces of legislation, the Victorian Parliament has added a number of other offences and circumstances in which presumptive sentences will apply, including certain offences against emergency workers and custodial officers on duty—Sentencing Act 1991 (Vic) s 10AA; offences of breaching supervision orders under the Serious Sex Offenders (Detention and Supervision) Act 2009 (Vic), Sentencing Act 1991 (Vic) s 10AB; the offence of aggravated home invasion, Sentencing Act 1991 (Vic) s 10AC; and the offence of aggravated carjacking, Sentencing Act 1991 (Vic) s 10AD.

  8. 8.

    The Crimes Act 1958 (Vic) s 422(1) provides that an alternative verdict of intentionally causing serious injury in the absence of circumstances of gross violence is available to juries under Crimes Act 1958 (Vic) s 16. In addition, a person may be persuaded to plead guilty to an offence of causing injury (not serious injury) as an alternative—a charge that does not carry a presumptive sentence.

  9. 9.

    The Sentencing Act 1991 (Vic) s 5(2)(e) provides that in sentencing a judge must take into account whether the defendant pleaded guilty to the offence and, if so, the stage in the proceedings at which the defendant did so or indicated an intention to do so. Section 6AAA requires a court, if it has imposed a less severe sentence than it would otherwise have imposed because the defendant pleaded guilty, to state the sentence that it would have imposed but for the plea of guilty.

  10. 10.

    It may be reflective of Judge 15M’s observation that in the five-year period to June 2016, there were fewer than ten sentences imposed for these offences.

  11. 11.

    The increasing use of such measures would indicate that, in the face of populist pressures, such a suggestion is unlikely to be heeded.

  12. 12.

    Criminal Procedure Act 2009 (Vic) ss 207–209.

  13. 13.

    Ibid. s 208(2).

  14. 14.

    Ibid. s 208(3).

  15. 15.

    Ibid. s 208(5).

  16. 16.

    See also R v Goodyear [2005] EWCA 888.

  17. 17.

    Criminal Procedure (Sentence Indication) Amendment Act 1992 (NSW).

  18. 18.

    Criminal Procedure Act 2009 (Vic) s 60 (2).

  19. 19.

    The nature of such pressure in the context of plea negotiations specifically is discussed in more detail in Chap. 8. See also McConville and Marsh (2014).

  20. 20.

    [2008] VSCA 190.

  21. 21.

    [2014] HCA 2.

  22. 22.

    Ibid.

  23. 23.

    Ibid. [at 42].

  24. 24.

    Barbaro v The Queen; Zirilli v The Queen [2013] HCA Trans 296.

  25. 25.

    Barbaro [at 47].

  26. 26.

    [2014] VSCA 291.

  27. 27.

    [2015] 229 FCR 331.

  28. 28.

    Sentencing Act 1991 (Vic) s 6AAA (1)(a).

  29. 29.

    Ibid. s 6AAA (1)(b).

  30. 30.

    [2011] VSC 73 [at 30].

  31. 31.

    [2013] VSC 298 [at 38].

  32. 32.

    [2014] VSC 19 [at 38].

  33. 33.

    [2014] VSC 270 [at 47].

  34. 34.

    [2015] VSC 474 [at 39].

  35. 35.

    [2009] VSC 520 [at 49].

  36. 36.

    [2010] VSC 274 [at 38].

  37. 37.

    [2009] VSC 374 [at 24].

  38. 38.

    [2009] VSC 403.

  39. 39.

    [2010] VSC 113.

  40. 40.

    [2009] VSC 403 [at 38].

  41. 41.

    R v Meulenbrock [2010] VSC 113 [at 22].

  42. 42.

    Ibid.

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  1. Monash University, Clayton, VIC, Australia

    Asher Flynn & Arie Freiberg

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Flynn, A., Freiberg, A. (2018). Plea Negotiations and Sentencing. In: Plea Negotiations. Palgrave Socio-Legal Studies. Palgrave Macmillan, Cham. https://doi.org/10.1007/978-3-319-92630-8_7

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  • DOI: https://doi.org/10.1007/978-3-319-92630-8_7

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