Guilty Plea as an Element in Sentencing - Part 2

• NCJ Number: 74993
• Journal: Law Institute Journal Volume: 54 Dated: (April 1980) Pages: 185-189
• Author(s): P A Sallmann
• Date Published: 1980
• Length: 5 pages
• Publication Format: Article
• Language: English
• Country: Australia

Annotation

The existence of a relationship between the guilty plea and the imposition of lighter sentences by judges in the Commonwealth of Australia is explored; relevant case law is highlighted.

Abstract

The existence of the 'discount' principle has encouraged defense counsel to consult with trial judges in chambers to attempt to gain some idea of the sentence the judge has in mind and whether the judge considers that the nature of the plea is of significance in determining sentence. Plea bargaining is the process during which the accused agrees to pleading guilty to lesser charges or to fewer charges than those originally filed. For example, the accused is charged with murder, but the Crown agrees to accept a lesser plea of guilty to manslaughter. The prosecution thus is assured a conviction and penalty, and the accused expects to receive a relatively lenient sentence for a manslaughter plea and to avoid the possibility of imprisonment for life. In the 1970 case of 'R. v. Turner,' guideline principles articulating the relationship between the guilty plea and sentencing are expressed. First defense counsel may advise his client that a guilty plea, demonstrating remorse, may act as a mitigating factor in sentencing. Second, there must be freedom of access between both defense counsel and counsel for the prosecution to the judge. Third, the judge should never indicate the sentence which he has in mind. Subsequent rulings and cases, such as 'Bruce v. R' (1975), have addressed the problems arising out of the independent standing of the guilty plea and the practice of consultation with judges in chambers. It is concluded that a sentencing 'discount' system is in operation in relation to pleas of guilty in the British and Victorian systems of criminal justice. Since this situation runs directly counter to the principle of the unencumbered choice of plea, perhaps close examination of the practice is in order. Eleven footnotes are included in the article.