skip to content

Refine results


Search by

Search by Algolia
Banner image

GUILTY PLEAS

Introduction
Legislation relevant to guilty pleas
Accessing case law relevant to guilty pleas
Loose-leaf services
Penalty Summaries
General Sentencing Purposes, Principles and Factors
Factors relating to the offence
Factors relating to the victim
Factors relating to the defendant
Factors relating to the general principles of sentencing
Other relevant considerations
Cooperation with law enforcement - s 37
Discount for early guilty plea - ss 39 and 40
Taking further offences into account
The imposition of pecuniary sums
Trifling offences
Penalty without conviction
Taking instructions to advise whether to plead guilty
Refusal to give advice or representation on a plea
Unable to take proper instructions and consider the matter in full:
Real likelihood of a penalty of imprisonment:
No likelihood of a penalty of imprisonment
Giving advice and/or representation on a plea
Advising defendants about whether to plead guilty
Defendants who wish to make a “convenience plea”
The importance of accurate recording of instructions and advice
When to accept instructions to appear on a guilty plea
Defendants in custody
Defendants not in custody
Special ethical considerations
Acting for a defendant who has changed instructions from not guilty to guilty
Acting for co-charged defendants on a guilty plea
Where the defendant gives implausible instructions
Instances where instructions should not be accepted
Conducting a plea of guilty as a duty solicitor
Objectives of a simple guilty plea
Obtaining signed instructions
Negotiation and advice before making submissions
Police Prosecution contact numbers
Pre-sentence and psychiatric reports
Pre-sentence reports
Psychiatric reports
Taking instructions for a guilty plea

Introduction

THE ROLE OF THE DUTY SOLICITOR

An important aspect of duty solicitor work is providing advice for unrepresented defendants about whether to plead guilty to a charge, where there is sufficient time to take detailed instructions and give considered advice. Another role of the duty solicitor, where it is proper to do so, is to conduct simple guilty pleas for people who would be seriously disadvantaged without such assistance and where the penalties are not serious. For more serious matters, where detailed preparation is required, the duty solicitor may be called upon to assist a defendant to apply for their matter to be remanded or adjourned to allow time for them to seek legal advice and representation. The duty solcitior needs to be able to determine whether a matter is simple, or one requiring the defendant to obtain legal representation.

To give such advice, or to represent someone on a simple guilty plea, you must be familiar with the elements of offences, maximum penalties and general sentencing principles. This Chapter provides information about some basic sentencing principles and practical guidance for providing advice and/or representation for a simple guilty plea. This Chapter be should be read in conjunction with the Sentencing chapter and the chapters on specific offences [see Role of the Duty Solicitor chapter; Courts and Jurisdiction chapter and Sentencing chapter].

Legislation relevant to guilty pleas

Please note that as of 30 April 2018 the Sentencing Act 2017 (SA) replaced the previous Criminal Law (Sentencing) Act 1988 (SA)

The following legislative sources are relevant to the conduct of a simple guilty plea:

Sentencing Act 2017 (SA) see ss 3 and 4 for primary and secondary sentencing purposes; s 10 for general principles of sentencing, s 11 for individual sentencing factors; s 23(1) for trifling applications; s 25 for reducing or substituting penalties; s 23 for penalty without conviction; and Sentencing chapter]

Summary Offences Act 1953 (SA) [see for reference to elements of specific offences and penalties; and Penalty Summaries chapter]

Criminal Law Consolidation Act 1935 (SA) [see for reference to elements of specific offences and penalties; and Penalty Summaries chapter]

Road Traffic Act 1961 (SA) [see for reference to elements of specific offences and penalties; and Traffic Offences chapter]

Motor Vehicles Act 1959 (SA) [see Act for reference to elements of specific offences and penalties; and Traffic Offences chapter]

Young Offenders Act 1993 (SA) [see s 23 for circumstances where imprisonment can be imposed; s 24 for fines; s 25 for community service; s 26 for bonds; s 28 for licence disqualification; and Youth Court chapter]

Accessing case law relevant to guilty pleas

Familiarity with case law relating to sentencing principles and to specific offences is important. Some reference services (subscription only) which provide invaluable guidance and commentary in relation to the conduct of guilty pleas are:

Penalty Summaries

Penalty summaries are a useful resource for a busy duty solicitor and provide easy reference for the maximum penalties imposed for offences. The following penalty summaries are available online:

(** Please note: Always check the currency of these tables - use them only as a starting point and check for recent amendments to penalties in the legislation)

Acts Interpretation Act 1915 (SA) s 28A for divisional penalties and expiation fees [see also Magistrates Court Act 1991 (SA) - Appendix for divisional penalties and expiation fees]

General Sentencing Purposes, Principles and Factors

The Sentencing Act 2017 (SA) prescribes that the primary purpose for sentencing a defendant must be to protect the safety of the community (whether as individuals or in general) [Sentencing Act 2017 (SA) s 3].

Section 4 of the Sentencing Act 2017 (SA) prescribes the secondary sentencing purposes, being that:

  • The defendant is punished for the behaviour; and
  • The defendant held accountable to the community for the behaviour; and
  • The behaviour is publicly denounced; and
  • The harm done to the community and to any victim of the behaviour is publicly recognised; and
  • The defendant and others in the community are deterred from committing offences; and
  • Rehabilitation of the defendant is promoted.

In addition, the sentencing court is required to apply the common law concepts reflected in the principles of proportionality, parity and totality when sentencing a defendant [see s 10(1)]. A defendant cannot be sentenced on the basis of having committed an offence which they were not convicted of [see s 10(1)(d)].

Section 11 of the Sentencing Act 2017 (SA) lists a number of factors the court must take into account when determining sentence. These are considered in more detail below.

*Please note that the Sentencing Act 2017 (SA) replaced the previous Criminal Law (Sentencing) Act 1988 (SA) on 30 April 2018. The Sentencing Act 2017 (SA) substantially reforms the previous Act and in particular the previous section 10. The Sentencing Act 2017 (SA) separately outlines sentencing purposes, principles, and factors, and makes it clear by virtue of section 9 that the primary purpose for sentencing a defendant must be the paramount consideration when determining sentence.

In summary, the general principles of sentencing relevant to a simple guilty plea are:

Factors relating to the offence

  • The circumstances of the offence, whether any other offences are to be taken into account, and whether the offence is part of a course of conduct consisting of a series of criminal acts of the same or similar character [see Sentencing Act 2017 (SA) s 11(1)(a)].

Factors relating to the victim

  • The personal circumstances and vulnerability of any victim of the offence and any injury, loss or damage resulting from the offence [See Sentencing Act 2017 (SA) ss 11(1)(b) and 11(1)(c)].

Factors relating to the defendant

  • The plea of guilty and the time in the proceedings of that plea (see further below) [See Sentencing Act 2017 (SA) Part 2, Division 2, Subdivision 4];
  • Whether the defendant has shown remorse for the offence [See Sentencing Act 2017 (SA) s 11(1)(g)];
  • Whether the defendant has accepted responsibility for their actions [See Sentencing Act 2017 (SA) s 11(1)(g)(i)];
  • Whether the defendant has acknowledged any injury, loss or damage caused by their actions, or has voluntarily made reparation for any injury, loss or damage [See Sentencing Act 2017 (SA) s 11(1)(g)(ii)];
  • The defendant's character, general background, and offending history [See Sentencing Act 2017 (SA) s 11(1)(d)];
  • The likelihood of the defendant re-offending [See Sentencing Act 2017 (SA) s 11(1)(e)];
  • The defendant's age, and physical and mental condition (including any cognitive impairment) [See Sentencing Act 2017 (SA) s 11(1)(f)];
  • The defendant's prospects of rehabilitation [See Sentencing Act 2017 (SA) s 11(1)(h)];
  • The defendant's participation in, and achievements in, an intervention program (but the fact that the defendant has not participated in, or has performed badly in, an intervention program is not relevant to sentence) [See Sentencing Act 2017 (SA) ss 11(6) and 11(17)];
  • The defendant's cooperation with law enforcement agencies in relation to serious and organised crime [See Sentencing Act 2017 (SA) s 37].

Factors relating to the general principles of sentencing

Other relevant considerations

The paramount consideration in determining and imposing sentence must always be to protect the safety of the community (the primary sentencing purpose) [Sentencing Act 2017 (SA) ss 3 and 9].

In determining sentence a court must also consider the secondary sentencing purposes:

  • To ensure that the defendant is punished for the behaviour [see Sentencing Act 2017 (SA) s 4(1)(a)(i)];
  • To ensure hat the defendant is held accountable to the community for the behaviour [see Sentencing Act 2017 (SA) s 4(1)(a)(ii)];
  • To publicly denounce the behaviour [see Sentencing Act 2017 (SA) s 4(1)(b)];
  • To publicly recognise the harm done to the community and to any victim of the offending behaviour [see Sentencing Act 2017 (SA) s 4(1)(c)];
  • To deter the defendant and others in the community from committing offences [see Sentencing Act 2017 (SA) s 4(1)(d)];
  • To promote the rehabilitation of the defendant [see Sentencing Act 2017 (SA) s 4(1)(e)].

In determining the sentence for an offence, a court must not have regard to any of the following:

  • Any of the factors in sentencing if it would be contrary to an Act or law to do so [See Sentencing Act 2017 (SA) s 11(3)];
  • The fact that the Act or another Act prescribed a mandatory minimum non parole period [see Sentencing Act 2017 (SA) s 11(4)(a)];
  • Any consequences that may arise under the Child Sex Offenders Registration Act 2006 [see Sentencing Act 2017 (SA) ss 11(4)(b) and 11(4)(c)];
  • The fact that the defendant—(i) has not participated in, or has not had the opportunity to participate in, an intervention program; or (ii) has performed badly in, or has failed to make satisfactory progress in, such a program [see Sentencing Act 2017 (SA) s 11(7)].
CONSIDER THE SENTENCING PURPOSES, PRINCIPLES AND FACTORS
The duty solicitor must consider both the primary and secondary sentencing purposes (as contained in sections 3 and 4 of the Sentencing Act 2017 (SA)) as well as the general sentencing principles (s 10) and individual sentencing factors (s 11) as they relate to the instructions they obtain from the defendant. They must also anticipate the factors likely to be argued by prosecution and be in a position to address those issues during submissions in mitigation of penalty should they be raised by the prosecutor.

The duty solicitor's responsibility is to present a concise, yet persuasive argument in mitigation of the penalty which may be imposed upon the defendant.

Cooperation with law enforcement - s 37

The Sentencing Act 2017 (SA) carries over the scheme previously introduced in the previous Criminal Law (Sentencing) Act 1988 (SA) regarding possible sentencing reductions for people who cooperate with law enforcement agencies. In order for a person assisting law enforcement to receive a reduction in sentence, the information provided must directly relate to combatting serious and organised criminal activity, must be provided in exceptional circumstances and must contribute significantly to the public interest [Sentencing Act 2017 (SA) s 37(1)].

The court is able to reduce the sentence that it would otherwise have imposed by such a percentage as it thinks appropriate [s 37 (2)].

In determining what percentage reduction to apply, the court can consider:

  • The circumstances of the defendant’s plea;
  • The nature and extent of the defendant’s cooperation;
  • The timeliness of the cooperation;
  • The truthfulness, usefulness and reliability of the information provided

along with various other considerations outlined in section 37(3) of the Sentencing Act 2017 (SA).

If a person who received a reduction in sentence under section 37 later withdraws their cooperation with the law enforcement agency, the DPP can apply to the court to have the person resentenced [s 42].

Similarly, a defendant who has later cooperated with a law enforcement agency can apply to the court to have the sentence squashed and a new, reduced sentence imposed [s 43].

A court, on providing reasons for sentence, is not required to state any information that relates to a persons' cooperation with police (or other law enforcement agency) [s 19(2)].

Section 37 of the Sentencing Act 2017 (SA) :

37—Reduction of sentences for cooperation etc with law enforcement agency

(1) A court may declare a defendant to be a defendant to whom this section applies if the court is satisfied that the defendant has cooperated or undertaken to cooperate with a law enforcement agency and the cooperation—

(a) relates directly to combating serious and organised criminal activity; and

(b) is provided in exceptional circumstances; and

(c) contributes significantly to the public interest.

(2) In determining sentence for an offence or offences to which a defendant has pleaded guilty or in respect of which a defendant has been found guilty, the court may, if the defendant is the subject of a declaration under subsection (1), reduce the sentence that it would otherwise have imposed by such percentage as the court thinks appropriate in the circumstances.

(3) In determining the percentage by which a sentence is to be reduced under this section, the court must have regard to such of the following as may be relevant:

(a) if the defendant has pleaded guilty to the offence or offences—that fact and the circumstances of the plea;

(b) the nature and extent of the defendant's cooperation or undertaking;

(c) the timeliness of the cooperation or undertaking;

(d) the truthfulness, completeness and reliability of any information or evidence provided by the defendant;

(e) the evaluation (if any) by the authorities of the significance and usefulness of the defendant's cooperation or undertaking;

(f) any benefit that the defendant has gained or is likely to gain by reason of the cooperation or undertaking;

(g) the degree to which the safety of the defendant (or some other person) has been put at risk of violent retribution as a result of the defendant's cooperation or undertaking;

(h) whether the cooperation or undertaking concerns an offence for which the defendant is being sentenced or some other offence, whether related or unrelated (and, if related, whether the offence forms part of a criminal enterprise);

(i) whether, as a consequence of the defendant's cooperation or undertaking, the defendant would be likely to suffer violent retribution while serving any term of imprisonment, or be compelled to serve any such term in particularly severe conditions;

(j) the nature of any steps that would be likely to be necessary to protect the defendant on his or her release from prison;

(k) the likelihood that the defendant will commit further offences,

and may have regard to any other factor or principle the court thinks relevant.

(4) In this section—serious and organised criminal activity includes any activity that may constitute a serious and organised crime offence within the meaning of the Criminal Law Consolidation Act 1935.

Discount for early guilty plea - ss 39 and 40

There is legislated scheme that provides for a reduction of sentence by up to 40% for early guilty pleas in both the Magistrates Court [Sentencing Act 2017 (SA) s 39] and in other courts [Sentencing Act 2017 (SA) s 40].

This scheme was previously provided for in ss 10B and 10C of the previous Criminal Law (Sentencing) Act 1988 (SA), which was replaced by the Sentencing Act 2017 (SA) on 30 April 2018.

Reduction of sentence for guilty pleas in the Magistrates Court - summary offences

Section 39 of the Sentencing Act 2017 (SA) enables a person to receive a reduction in sentence for an early guilty plea in the Magistrates Court on summary offence matters or in other circumstances, prescribed by regulations.

Subject to that section, if a defendant has pleaded guilty to an offence:

  • not more than four weeks after the defendant first appears in court in relation to the offence – the sentence may be reduced by up to 40% [see s 39(2)(a)];
  • after first appearance, but not more than four weeks before trial (if a date has been set, or otherwise before trial) - the sentence may be reduced by up to 30% [see s 39(2)(b)];
  • less than four weeks before the date set for trial where the defendant satisfies the sentencing court that he or she could not reasonably have pleaded guilty at an earlier stage in the proceedings because of circumstances outside of his or her control - the sentence may be reduced by up to 30% [see s 39(2)(c)]; and
  • in other circumstances where the court is satisfied that there is good reason to do so - the sentence may be reduced by up to 10% [see s 39(2)(d)].

Further, in circumstances where none of the above reductions are available, the court may, where it is satisfied that the defendant did not plead guilty during the relevant period for any of the specific reasons listed in section 39(3)(b), reduce the sentence as if the defendant had in fact pleaded guilty [see section 39(3)].

Reduction of sentence for guilty pleas in other matters - indictable offences

Section 40 of the Sentencing Act 2017 (SA) enables a reduction in sentence in other matters than those to which section 39 applies.

Subject to this section, if a defendant has pleaded guilty to an offence:

  • not more than four weeks after the defendant's first court appearance in court in relation to the offence – the sentence may be reduced by up to 40% [see 40(3)(a)];
  • more than four weeks after the defendant's first appearance, but on or before the committal appearance- the sentence may be reduced by up to 30% [see s 40(3)(b)];
  • not more than four weeks after the committal appearance if, at the committal appearance, the defendant advises the court that bona fide negotiations ae taking place with prosecution, and subsequently calls the matter on within four weeks to enter a guilty plea - the sentence may be reduced by up to 30% [see Criminal Procedure Act 1921 (SA) s 110(3)];
  • between the committal appearance and answer charge hearing - the sentence may be reduced by up to 20% [see Sentencing Act 2017 (SA) s 40(3)(c)];
  • after the answer charge hearing but on or before the first appearance in the superior court (for the arraignment) - the sentence may be reduced by up to15% [see s 40(3)(d)];
  • after the arraignment and before the first day of the trial - the sentence may be reduced by up to 10% [see s 40(3)(e)].

If a defendant pleads not guilty to an indictable offence, and is found guilty but has otherwise complied with all statutory and court procedures and requirements, and has otherwise conducted the case in a cooperative and expeditious manner, they may be entitled to a discount of up to 10% [see s 38].

Further, in circumstances where none of the above reductions are available, the court may, where it is satisfied that the defendant did not plead guilty during the relevant period for any of the specific reasons listed in section 40(3), reduce the sentence as if the defendant had in fact pleaded guilty [see section 40(4)

Determining the reduction of sentences for guilty pleas

If a defendant enters an early guilty plea in either the Magistrates Court (as per section 39) or in other matters not covered by section 39 (but covered by section 40), the court should consider the following in determining the percentage by which a sentence for an offence is to be reduced:

  • whether the reduction of the defendant's sentence by the percentage contemplated would be so disproportionate to the seriousness of the offence, or so inappropriate in the case of that particular defendant, that it would or may affect public confidence in the administration of justice [see ss 39(4)(a) and 40(4)(a)];
  • the stage in the proceedings for the offence at which the defendant first indicated his or her intention to plead guilty (including whether it would, in the opinion of the court, have been reasonable to expect the defendant to have done so at an earlier stage in the proceedings [see ss 39(4)(b) and 40(4)(b)];
  • whether the defendant was initially charged with a different offence in respect of the same conduct and whether (and at what stage of proceedings) negotiations occurred with the prosecution in relation to the offence charged [see ss 39(4)(c) and 40(4)(c)];
  • in the case where the defendant has been charged with more than 1 offence—whether the defendant pleaded guilty to all of the offences [see ss 39(4)(d) and 40(4)(d)];
  • whether or not the defendant was made aware of any relevant matter that would have enabled the defendant to plead guilty at an earlier stage in the proceedings, and may have regard to any other factor or principle the court thinks relevant [ss 39(4)e) and 40(4)(e)].

Application of sentencing reductions

Please note section 36 of the Sentencing Act 2017 (SA) which sets out the purpose and application of this Division of the Act. Section 36 provides:

  • Except where the contrary intention appears, this Division qualifies rather than displaces the common law principles in relation to sentencing; and
  • Except where the contrary intention expressly appears, this Division is in addition to, and does not derogate from, a provision of this Act or any other Act—
    • (a) that expressly prohibits the reduction, mitigation or substitution of penalties or sentences; or
    • (b) that limits or otherwise makes special provision in relation to the way a penalty or sentence for a particular offence under that Act may be imposed.

See also information and related documents about the Major Indictable Reform from the DPP website: Major Indictable Reform

Taking further offences into account

Part 2, Division 2, Subdivision 3 of the Sentencing Act 2017 (SA) creates an optional system for the court to take into account other offences when sentencing a defendant for a principal offence.

Where a defendant is charged with multiple offences, they have the option of being convicted of the principal offence, and having the further offences taken into account when sentencing (but having no conviction or separate penalty imposed for those offences).

The court must ask whether the defendant wants to have any further offences taken into account [s 33(1)]. If the defendant agrees, the prosecutor may file a document which specifics other offences with which the defendant has been charged but not convicted of [s 32(1)]. This list may be filed at any time after the court finds the defendant guilty of the principal offence [s 32(2)(a)] but before the defendant is sentenced for the principal offence [s 32(2)(b)].

The defendant is required to admit guilt to the further offence(s) for them to be taken into account [s 33(2)(a)(i)], but is not convicted of the further offence(s) [s 35(4)]. If the court takes the further offence(s) into account, the penalty imposed on the defendant cannot exceed the maximum penalty that applies for the principal offence [s 33(3)].

The court can make other orders once taking the further offence(s) into account, but cannot impose a separate penalty for the further offence(s) [s 34(1)].

Once a further offence is taken into account, no further proceedings can be taken or continued in respect of the further offence, unless the conviction for the principal offence is quashed or set aside [s 35(1)(b)]. The fact that the further offences have been taken into account will be certified by the court on the list of additional offences [s 35 (1)(a)].

The imposition of pecuniary sums

Where the penalty for an offence is likely to be the imposition of a fine or other pecuniary sum, the duty solicitor must take instructions in relation to the defendant’s ability to pay. The Court should consider any evidence provided by the duty solicitor in relation to the defendant’s means [see Sentencing Act 2017 (SA) ss 120(2) and 120(3)]. The definition of a pecuniary sum includes fines, compensation, sums payable under bonds, costs and the victims of crime levy [see Sentencing Act 2017 (SA) s 5 for interpretation]. For all orders requiring the payment of a pecuniary sum (except the victims of crime levy) the Court must first be satisfied that the means of the defendant are such that they are able to comply with the order and such compliance would not unduly prejudice the welfare of dependants [see ss 120(1)(a) and 120(1)(b)]. The Court could order the payment of a lesser amount where the means of the defendant are inadequate or there would be prejudice to any dependants [see s 120(1)].

in the event the court orders payment of a pecuniary sum, and that sum is not paid or otherwise dealt with, the debtor may face enforcement proceedings by the Fines Enforcement and Recovery Unit. The Chief Recovery Officer of that Unit has a number of enforcement options available to deal with a pecuniary debt - see Fines Enforcement and Debt Recovery Act 2017 (SA) Part 7, Division 1.

Trifling offences

In the course of taking instructions from the defendant, the duty solicitor should consider whether the offence would be considered by the Court so trifling it would be inappropriate to impose any penalty. In this situation the Court may consider dismissing the charge without recording a conviction for the offence or record a conviction and discharge the defendant without penalty [see Sentencing Act 2017 (SA) s 23; and Sentencing chapter for more detailed information].

Penalty without conviction

In circumstances where the court is considering the imposition of a fine, community service or both, and the Court considers the defendant is unlikely to commit the offence again and good reason exists for not recording a conviction, it may impose a penalty without recording a conviction [see Sentencing Act 2017 (SA) s 24].

Whether good reason exists is assessed taking into account the character, antecedents, age or physical or mental condition of the defendant, or the fact the offence was trifling, or any other extenuating circumstances [see Sentencing Act 2017 (SA) s 24; and Sentencing chapter for more detailed information].

Taking instructions to advise whether to plead guilty

The following outlines considerations for the duty solicitor when approached by a defendant for advice and/or representation in relation to a guilty plea.

Refusal to give advice or representation on a plea

All legal practitioners have an ethical duty to give competent and professional advice, including those acting as duty solicitors [see Professional Ethics and Court Etiquette chapter; and Role of the Duty Solicitor chapter]. The following outlines some circumstances where it would be inappropriate for the duty solicitor to provide advice or representation on a plea and where he or she has no obligation to provide such assistance.

Unable to take proper instructions and consider the matter in full:

A duty solicitor must not provide advice about whether to plead guilty without taking proper instructions and having time to consider the matter in full. Thus, a duty solicitor has no obligation to advise people about whether to plead guilty. This is so even when the duty solicitor is placed under pressure to do so by the defendant or the court.

COURT REQUESTS FOR DUTY SOLICITOR ASSISTANCE
The duty solicitor will regularly receive requests from Magistrates or defendants, while the matter is being held in the court list, to provide the defendant with advice on a plea. The duty solicitor should decline to do so if they do not have time to do it properly. If they are not in a position to give advice, they should:

tell the defendant why they cannot assist;

advise (and assist) the defendant to apply for legal aid or seek private legal help; and

advise the defendant to return to the courtroom and ask the Magistrate for an adjournment to allow for this to take place.

REMEMBER the duty solicitor's ethical duty to give competent and professional advice is paramount.

Real likelihood of a penalty of imprisonment:

The decision whether to provide advice and/or representation in relation to a plea is also influenced by whether there is a real likelihood of a penalty of imprisonment. Where the duty solicitor is asked to assist a defendant and there is a real likelihood of imprisonment, it is important to advise against entering a plea at that time. The defendant should arrange for a legal aid or private solicitor (usually after a grant of legal aid) to represent them and provide them with detailed, considered legal advice.

No likelihood of a penalty of imprisonment

Where there is no likelihood of imprisonment, the duty solicitor may consider providing the defendant with advice about whether to plead guilty and, if they decide to do this, how to represent themselves in court, taking into account all considerations which would preclude such assistance as outlined in this chapter. The duty solicitor would only consider representing a person on such a matter where the defendant is particularly vulnerable and clearly unable to represent themselves.

KEEPING NOTES
Whenever advising unrepresented defendants about pleas of guilty, or taking instructions before appearing on a plea, it is important for the duty solicitor to make accurate and complete notes of what the defendant tells them and what advice they give the defendant, and to record this on the pink duty solicitor form.

Giving advice and/or representation on a plea

Where the duty solicitor considers the circumstances allow them to give considered and competent advice, the following steps need to be taken:

1. Check the exact charge(s) with the prosecutor and note the allegations in writing.

2. Take detailed instructions from the defendant.

3. Determine whether, on the defendant’s instructions, the defendant is guilty of the offence(s).

4. Consider whether there is a defence on the basis of the defendant’s instructions.

5. Where there is no defence, advise the defendant of this in a clear and precise manner.

6. Revisit the allegations with the defendant to see if the defendant disagrees with any of the allegations, not in relation to guilt, but as to the seriousness of the offending he or she is admitting and to ensure the defendant agrees with the facts as alleged (a guilty plea is an acknowledgement of the full facts as alleged in the allegations). If there are minor discrepancies, the duty solicitor must attempt to resolve them on the spot with the prosecutor. If they cannot be resolved, the plea cannot be entered that day and the matter will need to be adjourned or remanded to allow for ongoing negotiation with prosecution.

7. Take signed instructions where the defendant instructs that he or she wishes to enter a plea of guilty.

8. Check with the prosecutor whether the defendant has a prior record with relevant convictions and, if so, make a comprehensive written note of it. It is important that the duty solicitor asks prosecution what record they intend to allege.

9. Take instructions from the defendant as to whether he or she admits the prior record and all the details of it.

10. Review the defendant’s instructions and take any further instructions needed to make a plea in mitigation of penalty.

TAKING INSTRUCTIONS FOR REPRESENTATION ON A PLEA

In taking instructions, the duty solicitor may wish to categorise their questions as follows:

  • questions about the offence itself;
  • questions about the defendant’s circumstances; and
  • questions relevant to penalty.

The duty solicitor may wish to use the guilty plea instruction checklist at the end of this chapter, which is designed to help you compile a structured overview of the defendant’s personal circumstances and their subjective account of the offence.

The duty solicitor should always take, and record, more instructions than necessary to use directly in submissions. The details not used directly will inform and give persuasive character to those instructions on which you decide to focus your submissions. Also, if asked to address the Court in more detail on a particular matter, chances are you will already have the necessary information.

Advising defendants about whether to plead guilty

Defendants who wish to make a “convenience plea”

There are people who wish to make a “convenience plea” and wish to plead guilty to get the matter out of the way simply and cheaply, but at the same time they maintain a denial of the offence. Such people may, for example, try to enter a plea of guilty unrepresented to a shoplifting charge but state to the Magistrate that they “forgot to pay”, “did not realise they had the item when they left the shop”, “didn’t know what they were doing because of medication”, or that they struck a victim of an assault charge in self-defence. The Magistrate will not accept this plea, will usually order that it be struck out and recommend that the defendant seek legal advice, often from the duty solicitor, whilst the matter is held in the court list.

Often a defendant will tell the duty solicitor that they want to plead guilty to “get the matter over and done with”. This should always ring warning bells. When this occurs it is important for the duty solicitor to ask the defendant about the following:

  • whether the defendant believes they are guilty of the offence(s) with which they are charged and are simply expressing a resolve to deal with the matter expeditiously (in which case the duty solicitor can advise on whether it is appropriate to plead guilty and how to do so); or
  • whether the defendant actually denies all or any of the elements of the charge but wishes to plead guilty anyway. This is the basis of a convenience plea, in which case the duty solicitor must be careful about what they subsequently advise.
KEEP ACCURATE AND COMPLETE NOTES
In either case it is important for the duty solicitor to record on the pink duty solicitor form exactly what instructions the defendant gives and what the duty solciitor has advised. The duty solciitor's only protection against future claims that they “made” the defendant plead guilty is the existence and accuracy of this record.

The importance of accurate recording of instructions and advice

The need for the duty solicitor to take accurate notes of instructions and subsequent advice cannot be overemphasised. People have been successful in appealing convictions or penalties due to a miscarriage of justice, on the grounds that they pleaded guilty:

  1. on the basis of incorrect advice;
  2. because they were misled by their solicitor (this includes a duty solicitor);
  3. because they were pressured into pleading guilty by the solicitor (again, this includes a duty solicitor).

Not only may the defendant appeal in such cases, but the solicitor involved may be the subject of adverse judicial comment when the appeal is heard, and may also be subject to disciplinary proceedings [see Stengle v Wells [1985] SASC S4958 (Unreported, Cox J, 30 April 1985) for the full implications of the principles discussed above; Akpata v Police [2003] SASC 305and Markl v Police [2005]SASC 141for similar circumstances].

ADVISING A DEFENDANT WHO WANTS TO MAKE A CONVENIENCE PLEA

The advice a duty solicitor gives to a defendant in these circumstances must be circumspect, careful, clear and recorded in detail for possible future reference [see Stengle v Wells [1985] SASC S4958 (Unreported,Cox J, 30 April 1995)]. The duty solicitor should:

  1. Explain that the Magistrate cannot accept a plea of guilty when the defendant is actually saying they are not guilty of the offence (for example, by denying one or more of the elements of the offence). Stress that in refusing to accept the plea the Magistrate is acting in the defendant’s best interests and in the interests of justice.

  2. Explain the elements of the offence and listen to what the defendant has to say about what happened and what they intended at the time.

  3. Where the defendant’s instructions indicate that they do not admit one of the elements of the offence (for example, in a shoplifting charge, they are saying they did not intend to steal the item), the duty solicitor should advise them that on the basis of what they have said happened, they are not guilty of the offence (they have a defence) and should contest the charge and not plead guilty.

  4. If they still insist they wish to enter a plea of guilty, and ask the duty solicitor to appear to represent them on such a plea, the duty solicitor must tell them that they can only act for them under the following circumstances:
  • The client must be informed that by pleading guilty to the charge no explanation consistent with a plea of not guilty can be put to the court in mitigation of penalty because this would be inconsistent with the plea of guilty.

  • It must be made clear to the client that, if represented, the duty solicitor cannot offer any explanation to the court for the admitted conduct which is inconsistent with the plea of guilty.

    This will usually restrict the practitioner to making submissions in mitigation of penalty relating to the clients personal circumstances and the appropriate sentencing principles to be applied. For example a discount for the plea etc.

  • Nothing can be said to the court about the facts if they are inconsistent with the plea. It must be made clear to the client that the absence of an explanation for the admitted offending may reflect adversely upon them when it comes to sentence. For example, the court may take the view that the client has no remorse.

  • A practitioner should inform the client about the penalty range for the offence and that by pleading guilty (depending on the nature of the charge) they may be sentenced to imprisonment.

  • A practitioner should always obtain signed written instructions from the client reflecting that the above advice has been given and understood in deciding to plead guilty.

  • Warning: practitioners should be very cautious about acting for clients in these circumstances. If the client shows any signs of not understanding the advice or any reluctance accepting the advice or refuses to provide signed instructions – do not act.

    If the client refuses to provide signed instructions or does not understand the advice then the duty solicitor must tell them that they cannot and will not act for them in a guilty plea because it is unethical for them to do so.

Duty solicitors must keep detailed notes of the instructions the defendant has given and their subsequent advice to the defendant.

When to accept instructions to appear on a guilty plea

Defendants should be advised against entering a plea to a charge(s) without legal representation where there is a real likelihood of imprisonment, and the duty solicitor should not generally accept instructions to represent a person on a guilty plea in these circumstances [see previous information in this chapter; and the Sentencing chapter for guidance on the issue of the likelihood of imprisonment]. However, there are some circumstances where the duty solicitor may decide to accept instructions to appear as duty solicitor on a guilty plea where there is a likely penalty of imprisonment.

Defendants in custody

There are some exceptional cases involving people in custody for whom the duty solicitor may present a guilty plea. As always, this should only be done where there is sufficient time to obtain proper instructions, to consider whether the defendant is in fact guilty of the offence(s), and to obtain proper instructions on the allegations, any alleged prior record and any relevant circumstances in mitigation of penalty.

Such exceptional cases include:

  • Situations where the person is likely to be imprisoned on a plea of guilty, but the gaol term is likely to be shorter than the time it would take to arrange for their representation (usually between 1-3 weeks).
  • Situations where the person has already been in custody for as long or longer than the term of imprisonment he or she could reasonably hope to receive. In such cases the Court is entitled to take into account the time already served and impose no further penalty. Where the duty solicitor is not sure of the likely outcome of such an application, they should tactfully seek an intimation from the bench as to the Court’s views about the likely sentence, and/or seek senior solicitor advice.

Defendants not in custody

The duty solicitor has discretion to conduct pleas of guilty, if time permits, for a defendant who is not in custody and where:

  • the defendant would be eligible for legal aid on the means/assets criteria but is ineligible on guidelines, because the charge is minor and would not potentially attract a sentence of imprisonment; and
  • is unable to represent themselves adequately due to some compelling disadvantage which has the potential to lead to a miscarriage of justice.

Some examples of offences which may arise in this situation are:

  • first offence shoplifting
  • minor property damage
  • offensive language
  • disorderly behaviour
  • drink driving and traffic offences

The duty solicitor will almost always be able to justify conducting a plea of guilty provided there is no other consideration stopping them from doing so because there is always potential for a miscarriage of justice if a defendant appears unrepresented [see considerations as discussed in this chapter]. Some reasons why a defendant is unable to adequately represent themself are:

Youth: many young defendants are afraid to tell their parents they have been charged with an offence.

Age: elderly people often suffer extreme embarrassment at appearing before the court and cannot communicate effectively.

Language difficulties: the Court will arrange for an interpreter, however the defendant may continue to require the assistance of the duty solicitor.

Physical or mental health problems: it is crucial that particular difficulties be explained to the Court both in mitigation of penalty and to guard against an inappropriate or excessive form of penalty being ordered.

Lack of discretionary income: for example women without their own source of income who are ashamed or afraid to tell their partners that they have been charged with an offence or to ask for money to pay for legal representation.

Any other reason: where it appears likely that the defendant would not be dealt with fairly unless the duty solicitor appears for them and speaks on their behalf.

Special ethical considerations

The following are incidences where there are special ethical considerations to take into account before the duty solicitor can accept instructions to conduct a guilty plea.

Acting for a defendant who has changed instructions from not guilty to guilty

It is not unethical for a duty solicitor to act on a guilty plea where the defendant has changed instructions from not guilty to guilty as long as:

  1. the defendant instructs that they now admit a particular element or fact which was previously denied; and
  2. they understand that the Court will order penalty on a plea of guilty and that this will be recorded; and
  3. they instruct that it is their own decision to admit the charge and they have not been pressured by anyone to reach that decision; and
  4. the duty solicitor takes signed instructions from the defendant in relation to the issues discussed above.
NEVER MISLEAD THE COURT
The duty solicitor must not mislead the Court by putting a version of the facts forward which they know, from the defendant’s instructions, to be false. Defendants who change instructions from not guilty to guilty may invent a more flattering scenario than the facts allow. The duty solicitor should politely but firmly decline to put those instructions to the Court.

Acting for co-charged defendants on a guilty plea

As a general rule it is preferable for a solicitor to act for one party, but this is not always possible in the duty solicitor situation. The duty solicitor should only act for co-charged defendants on a guilty plea where this will not cause a conflict of interest, and therefore:

  1. there is no discrepancy as to the degree of participation and facts; and
  2. neither party is blaming the other to mitigate his or her own part in the offence; and
  3. both parties instruct they have no problem with the duty solicitor acting for the other party; and
  4. the duty solicitor has taken signed instructions from each defendant to all of the above.

See Australian Solicitors' Conduct Rules r 11

Where the defendant gives implausible instructions

A defendant is entitled to be sentenced on the version of the facts most favourable to him or her [see Law v Deed [1970] SASR 374 for this principle]. Moreover, the duty solicitor has the same duty as any defending counsel to put the instructions of the defendant to the Court. However, some instructions as to circumstances may be patently fanciful and self-serving while falling just short of denial. In this situation, the duty solicitor needs to politely and firmly explain they are not prepared to advance that version to the Magistrate. The defendant may then choose to appear unrepresented, or instruct the duty solicitor to act, but not to put those particular instructions to the Court. In the latter case, the duty solicitor should record the defendant’s instruction in writing and have the defendant sign it before acting.

Instances where instructions should not be accepted

Instructions to conduct a defendant’s plea of guilty should not be accepted where:

  • there is a real risk of imprisonment [see Sentencing chapter];
  • a defendant with no compelling disadvantage could afford to instruct a private solicitor but chooses not to do so simply to save the expense;
  • the defendant says he or she wishes to plead guilty despite maintaining instructions of innocence. The court will not accept an ambiguous plea of guilty and the duty solicitor cannot ethically act on a plea of guilty where the plea conflicts with the substance of the defendant’s instructions;
  • the defendant has had many previous adjournments to obtain legal advice but has neglected to do so and wishes the duty solicitor to solve the problem for them;
  • the defendant indicates that he or she has fully or partially instructed another solicitor (see Professional Ethics and Court Etiquette chapter and Role of the Duty Solicitor chapter);
  • the defendant admits the elements of the offence but disputes some aspects of the allegations. Where this situation arises the prosecutor is sometimes able to negotiate the facts with the duty solicitor and resolve the matter by guilty plea on an agreed set of facts.
NEGOTIATING WITH PROSECUTION

Since R v Nemer (2003) 87 SASR 168; [2003] SASC 375, prosecution are generally not amenable to negotiation at the bar table. However, time permitting, it is important for the duty solicitor to explore with prosecution whether there is room for negotiation in relation to the facts in the allegations, where the defendant does not agree with these facts. In doing so, it is important for you to take care not to disclose the defendant’s instructions, in case the matter does not resolve that day.

For example: there is an allegation of assault, which states that the defendant punched the victim five times. The defendant instructs he agrees he assaulted the victim, but that he punched the victim three times, not five times as alleged.

Do not say to the prosecutor: ‘He admits three punches but not all five’.

Often the only relevant fact is that more than one punch was delivered. Do say to the prosecutor: ‘If you allege that the victim was punched (or multiple punches, or several punches, then the matter will resolve today)'.

In this way, you are not tying the defendant to any admissions, but you may still successfully resolve the matter. In addition, you have not indicated that the defendant admits any assault at all. You have put a hypothetical proposition to the prosecutor. You should attempt to resolve such matters in this way whether the defendant is in custody or at liberty.

REMEMBER the starting place in criminal injuries compensation claims by victims is the apprehension report, so notes need to be taken of the agreed basis of the plea.

Conducting a plea of guilty as a duty solicitor

Objectives of a simple guilty plea

Before accepting instructions to act on a plea of guilty, the duty solicitor must ensure that:

  • the defendant admits the charge;
  • their instructions do not indicate a defence; and
  • their case falls within the guidelines for duty solicitor representation (as explained above).
AIM TO ACHIEVE THE OPTIMUM RESULT

Having accepted the defendant’s instructions, the aim for the duty solicitor is to achieve the optimum result by way of penalty for the defendant, such as without conviction, a minimal fine, the shortest reasonable period of licence disqualification, probation conditions that do not set the defendant up to fail, and to make sure the defendant is dealt with fairly and without humiliation.

To achieve this, the duty solicitor should try to:

  • avoid unnecessarily long submissions which are tediously formulaic to an experienced Magistrate; and
  • leave the defendant feeling that you fairly and accurately argued his or her side in your words.

There are three segments to your plea, usually presented in this order but not necessarily so:

  1. The offence itself;
  2. The defendant’s circumstances; and then
  3. General matters as to the appropriate sentence. This may include submissions as to an application under section 24 of the Sentencing Act 2017 (SA) for a penalty of community service and/or a fine without conviction (with a brief summary as to the main mitigating features if there is any need at the end to tie it all together [see Sentencing chapter].

REMEMBER the defendant’s plea of guilty is itself a sign of contrition warranting leniency in sentence.

The aim is to achieve the best outcome for the defendant and in the course of submissions the duty solicitor must not make the situation any worse for the defendant.

Obtaining signed instructions

Signed instructions are an important safeguard for our professional legal reputation. Wherever possible, the duty solicitor must get signed instructions from the defendant when they appear as solicitor on a guilty plea to the effect that:

  • they wish to plead guilty and instruct the duty solicitor to make submissions in mitigation of penalty;
  • they have been advised of the relevant penalties (including potential imprisonment and disqualification of driver’s licence);
  • they admit the elements of the offence (for example, they intended not to pay for an item; intended or was reckless as to the likelihood of damage; received property in the knowledge it was stolen);
  • they are aware of the allegations and do not dispute them (for example, they agree with the number of punches thrown, the specific language alleged);
  • that no pressure has been put on them to plead guilty and they do so of their own free will;
  • they have been advised that prosecution may lack proof of a particular element, but nevertheless wish to plead guilty; or
  • where appropriate, they have no memory of the incident due to drug and/or alcohol ingestion but nevertheless admit the charge and do not challenge the allegations.

A list of the questions the duty solicitor might ask a defendant before acting on a guilty plea is set out in the Guitly Plea Instruction Checklist at the end of this chapter.

Negotiation and advice before making submissions

Once the duty solicitor has taken instructions to conduct a guilty plea, there are some further negotiations and advice to be taken before making submissions, to clarify with prosecution and with the defendant what is to happen:

  1. If not done before taking instructions, check the exact charges with the prosecutor, note in writing the allegations and the defendant’s prior record, and check the defendant agrees entirely with the contents of both the allegations and the prior record. If there is a minor discrepancy, attempt to resolve it on the spot. Remember there is no duty to disclose a defendant’s previous offending record [see Professional Ethics and Court Etiquette chapter and Role of the Duty Solicitor chapter].
  2. Show the prosecutor any character or work references, doctors’ reports and so forth, which you intend to tender for the defendant, and ensure prosecution agree to this. If you have time to do so, take two copies of any such documents and give one to the prosecutor and keep one with your records, the original being tendered to the court.
  3. Explain to the defendant the various sentencing options open to the court (such as the maximum fine, the likely range of fines, bonds, and community service work).
  4. Advise the defendant if a driver’s licence disqualification must be ordered and ask if they need the commencement of the disqualification postponed to settle affairs. In doing so, do not overlook section 168 of the Road Traffic Act 1961 (SA), which prescribes a penalty of licence disqualification for any offence ‘ in the commission of which a motor vehicle was used or the commission of which was facilitated by the use of a motor vehicle’ [see Road Traffic Act 1961 (SA) s 168].
  5. Take instructions from the defendant about the time required to pay fines and court costs, and advise that pecuniary amounts can be converted to community service work by application to the registrar.
  6. Explain to the defendant the effect of a recorded conviction and a ‘without conviction’ order.
  7. Ask the prosecution whether any compensation is being sought. If so check whether that amount is substantiated by invoice/quote/letter on the prosecution file and check the defendant’s ability and willingness to pay.
  8. Get signed instructions from the defendant.

Police Prosecution contact numbers

The direct Police Prosecution numbers for the main metropolitan areas are:

  • Adelaide – ph: (08) 8207 5858 or ph: (08) 7322 3904
  • Christies Beach – ph: (08) 8392 9116
  • Elizabeth – ph: (08) 8207 9416
  • Port Adelaide – ph: 8207 6440

Mount Gambier Police Prosecution can be contacted on – ph: (08) 8735 1040.

Pre-sentence and psychiatric reports

Pre-sentence reports

Where a guilty plea is entered and the Magistrate is considering the appropriateness of a sentence of imprisonment, the Magistrate may order a pre-sentence report and remand the person either in custody or on bail while the report is being prepared [see Sentencing Act 2017 (SA) s 17]. The pre-sentence report will provide the Magistrate with information on the physical or mental condition of the defendant, the personal circumstances and history of the defendant [see Sentencing Act 2017 (SA) s 17(1))]. It usually takes about two weeks for the preparation of a pre-sentence report if the person is in custody; up to six weeks if the defendant is on bail. The Court should not order such a report when the information cannot be provided within a reasonable time or where the penalty to be imposed is a mandatory penalty [see Sentencing Act 2017 (SA) s 17(2))]. The report can be furnished orally or in writing, and where it is available in writing, a copy must be provided to the prosecutor and the defendant or their counsel [see Sentencing Act 2017 (SA) ss 17(3) and 17(4)]. The author of the report can be examined and cross-examined on any matter contained in the report [see Sentencing Act 2017 (SA) s 17(5)]. Where a statement of fact or opinion contained in the report is challenged by prosecution or the defendant, that fact or opinion must be disregarded by the court unless it is substantiated on oath [see Sentencing Act 2017 (SA) s 17(6)].

DEALING WITH SERIOUS MATTERS
An inexperienced duty solicitor should immediately brief senior counsel from the Commission to assume conduct of the plea and to take instructions for submissions on the next occasion.

ADVICE REGARDING THE PRE-SENTENCE REPORT

A pre-sentence report may disclose the defendant’s interstate prior criminal history. Consider this before ordering a report.

It is unethical to attempt to “coach” the defendant regarding material they may furnish to the probation officer who will prepare the pre-sentence report. You should however, advise the defendant that it is not in their best interests to furnish false information (for example, with regards to their prior history). It is also permissible to remind them that anything they say may potentially end up in the report. As is the case with bail assessment reports, the report, once ordered, will end up before the Court, even if the information contained within is detrimental to the defendant [see Bail chapter]. The duty solicitor should therefore think twice before requesting a pre-sentence report.

Psychiatric reports

In the duty solicitor context, it is unusual to request a court order for a psychiatric report on a plea of guilty because the duty solicitor should only be engaged in the conduct of simple guilty pleas. If a psychiatric report is to be obtained and is ordered by the court, the same considerations apply as to pre-sentence reports with regards to detrimental information. Again, the duty solicitor should take very careful instructions before requesting a court to order such a report. It is perfectly permissible, if appropriate, to obtain a private psychiatric or psychological report, and then choose not to use it if it is unhelpful, where the defendant has a grant of legal aid.

Taking instructions for a guilty plea

GUILTY PLEA INSTRUCTION CHECK LIST

The duty solicitor should not work mechanically through this check list when taking instructions; it is a guide only. The focus should be on seeking out information that is relevant to the particular defendant’s case.

QUESTIONS ABOUT THE OFFENCE ITSELF

The instructions you take about the offence will be guided by the allegations. If you have not seen the allegations the instructions you take about what happened will need to be more detailed.

If you have to take initial instructions before having access to the allegations (such as when the defendant is one of the first custodies you see, and the prosecutor is not yet available at court), you must check the allegations before appearing, and if necessary return to the defendant to check inconsistencies in order to ensure that it really is appropriate, and that they continue to instruct that they want to plead guilty.

QUESTIONS ABOUT THE DEFENDANT’S CIRCUMSTANCES

You may find it helpful to work with these broad headings about the defendant’s circumstances:

  • Personal Information
  • Family History
  • Education
  • Employment
  • Health/drugs/alcohol
  • Financial

You may find it useful to use the following detailed checklist:

  • Age
  • How long the defendant has lived in South Australia?
  • Any periods of residence interstate or overseas?
  • Current accommodation: where they are currently living; with parents/partner/in share accommodation with friends/living as a sole parent with a child/living alone; and for how long?
  • Housing status: whether they own their own home or are in private rental/Housing Trust accommodation/emergency shelter accommodation/living on the streets; and for how long?
  • Family relationships: whether single/married/defacto; is the family/household supportive or dysfunctional; any problems during their upbringing such as parental separation/divorce, domestic violence, alcoholism, gambling and so forth.
  • Marital status: whether married/defacto/a new relationship or recently terminated a disruptive relationship; domestic stresses; going through a bad patch; future plans.
  • Education: whether to high school level, what level and why they left school; whether matriculated; learning difficulties; school achievements; any training since leaving school (University, TAFE, CES courses and so forth). Obviously these issues will be rather less relevant with elderly or middle-aged defendants.
  • Employment history: such as the length of work history; retired, currently employed and where? How long? Unemployed; how long since they last worked? Nature of job; why left job; business names of previous employers; any work references; any problems at time of offence due to Centrelink cut-off and so forth
  • Health/drugs/alcohol: such as any chronic or current health problems relevant to the offence or to penalty; surgery planned in near future; health of partner and/or dependants, medication; ongoing counselling or treatment; any mental health problems and diagnosis, medication, treatment, last hospitalisation, community care support; symptoms of the condition and how it affects the defendant’s behaviour; any alcohol, drug, gambling problems and so forth.

NOTE: Use your judgement when indicating significant addiction or mental health problems in a guilty plea for a relatively minor offence which warrants no more than a small fine in itself. Alarmist details may persuade a Magistrate to impose a good behaviour bond which may unnecessarily fetter the defendant for months to come.

  • Recreation: such as regular church attendance; volunteer community work; sports whether social or competitive; hobbies.
  • Impact of offence on defendant: such as time spent in custody already (especially where they have spent a weekend in custody for a minor offence); domestic upheaval; loss of job; embarrassment; repercussions on health. Distinguish whether this will follow from the court appearance, or has already happened (the court will need to know this).
  • Financial circumstances: These are relevant generally, and also specifically as to the issue of the defendant’s capacity to pay fines, court fees, and so forth, and also to how long they will need to pay.

QUESTIONS RELEVANT TO PENALTY

The questions relevant to penalty are about :

  • Extenuating circumstances: for example, the offence occurred following the death of a family member/friend; the defendant had just lost their job; was intoxicated and not used to drinking; had recently started taking medication; was under stress from financial crisis; was sorting out domestic turmoil; had medical/psychiatric problems.
  • The character of the offence: for example, impulsive rather than premeditated; the defendant played a minor role rather than a principal one; was influenced by a stronger personality; nature of the allegations suggest irrational and bizarre behaviour.

NOTE: Be careful as to how you word submissions about the defendant being influenced by a stronger personality. The Court will not be impressed if it thinks the defendant is trying to lay all the blame for their offending on somebody else.

  • The defendant’s manner with the police: whether cooperative; full and frank admissions; immediately expressed contrition; gave police no trouble; volunteered other shoplifted items to police.
  • Compensation issues: whether the defendant is willing and able to compensate victim for any damage/loss; how long is needed to pay?
  • Whether the defendant has already suffered a penalty for this offence: whether they have spent time in custody on arrest and for how long? lost job; are mortified by their own behaviour; have suffered prolonged anxiety about court proceedings.
  • Conduct since offence: for example, they are addressing the underlying problem by marriage counselling, alcohol awareness course, anger management programme, have sought advice from GP, have now registered/sold the car (where traffic offences); have apologised to victim; now have new relationship.
  • Parity issues: for example, was any co-offender dealt with leniently?
  • Effect if conviction recorded: for example, will they be applying for citizenship; hope to travel overseas; are a student; promising career would be jeopardised by conviction.