Plea Offers And Negotiations With The Prosecution To Discontinue, Downgrade Or Amend Your Charge Or Charges

In some circumstances, it may be appropriate to make a plea offer or submission to the prosecution in order to discontinue your charge, downgrade or amend your charge to a lesser or different offence, or amend the facts of the charge.

The prosecution is guided by the policies set out in the DPP Statement of Prosecution Policy and Guidelines. These Guidelines set out the factors to consider in determining whether a prosecution is in the public interest, the factors to consider when determining whether there are reasonable prospects of conviction, and the factors to consider in charge negotiations. It is useful to consider the Guidelines and refer to the relevant parts when negotiating with the prosecution. 

The plea offer or submission would set out to explain what we are seeking, the basis in support of what we are seeking, and where applicable, attach additional evidence or documentation in support.
A plea offer or submission to the prosecution may be the difference between proceeding to trial and having your matter dealt with at an early stage, saving you in legal fees in the long run.

Submission To Discontinue Your Charge

The submission to discontinue your charge may be based on a number of factors, either in isolation or in combination. For example, we could submit that the prosecution has a lack of evidence to obtain a conviction, or it may be that it is not in the public interest for the matter to be prosecuted.

If there is a lack of evidence to convict you, we would ordinarily set out the points of prosecution evidence which are weak, and which we say would be unable to prove the charge beyond a reasonable doubt.
Pursuant to the prosecution guidelines, matters should only be prosecuted if they have reasonable prospects of conviction.

Real case example: Our client was charged with Robbery. We wrote to the prosecution pointing out that their case was circumstantial, and would not be able to be proven beyond a reasonable doubt. The prosecution discontinued the charge.

Real case example: Our client was charged with Breach of Family Violence Restraining Order. Our client was retrieving personal property from the marital home, and was waiting in a vehicle on the verge of his neighbour’s house. He breached the restraining order by being within a certain distance of the marital home. Our client had good antecedents, and because of his job, any conviction (even if he got a spent conviction) would have an enormous impact on his life. We made a submission saying that the prosecution would not be in the public interest. The prosecution discontinued the charge.

Submission To Downgrade Or Amend Your Charge

In support of downgrading or amending your charge, it may be submitted that the facts would still satisfy the elements of a lesser or alternate charge. 
The benefit of this may be that the lesser or alternate charge may have a lower maximum penalty available, which may result in you obtaining a lesser sentence.

Real case example: Our client was charged with Act with intent to harm causing bodily harm, which carried a maximum penalty of 20 years’ imprisonment. We successfully negotiated to have the charge downgraded to Act causing bodily harm, heard summarily in the Magistrates Court, where the jurisdictional limit on penalty was 3 years imprisonment and a $36,000 fine.

Real case example: Our client was charged with Reckless Driving with a circumstance of aggravation (to evade police), which carried a mandatory term of immediate imprisonment. This means that the Magistrate would have had no choice but to send our client to prison for at least 6 months. We successfully negotiated to remove the circumstance of aggravation, thus removing the mandatory imprisonment requirement, and the charge was also amended to dangerous driving. Our client pleaded guilty to the amended charge and received a fine. He also avoided a licence disqualification.

Submission To Amend The Facts

In some circumstances, you may agree with the essence of the charge and intend on pleading guilty, but disagree with certain alleged facts which would have a bearing on sentence. It is important to come to an agreement with the prosecution as to the facts, as this is the basis upon which you will be sentenced. 

It could be submitted that a plea of guilty on the amended facts could still reasonably reflect the essential criminality of the conduct and provide an adequate basis for sentence.
For example, you may agree to an assault, but only say you punched the victim, as opposed to punching and kicking the victim. Your sentence may be more serious if you are sentenced on the basis of having kicked the victim as well.

Real case example: Our client was charged with Act or omission causing bodily harm. We successfully negotiated the facts to include some facts our client says occurred, and to remove some facts our client says didn’t occur. Prior to amending the facts, our client would likely have been facing imprisonment. The facts were amended and our client received a fine.

In Western Australia, all criminal charges are either summary offences that can be dealt with in the Magistrates Court by a Magistrate, or more serious offences that cannot be dealt with in the Magistrates Court and must, instead, be dealt with on indictment in a superior court (District Court or Supreme Court) before a Judge or a Judge and Jury. Some offences are known as “either way” offences, which means that it will be heard summarily unless the prosecution or defence apply for the matter to be heard on indictment.

If you are under investigation by the police, you may be asked to participate in a video record of interview (also known as an electronic record of interview). The police will often arrest you on suspicion of having committed an offence and then ask you to participate in an interview.

When questioned by police, you can exercise your right to silence. You must provide the police with your personal details, being your full name, date of birth and address, but you do not need to answer any other questions. If you choose not to answer any questions, you can answer by saying “no comment”.  You can also inform the officers prior to the interview that you intend on providing a “no comment interview”.

Character references can be provided to the court at sentencing hearings. They can tell the Presiding Magistrate or Presiding Judge that despite you being convicted of the current offence, that you are still considered to be of good character

This can be useful in assisting the Magistrate or Judge with what penalty should be imposed at your sentencing hearing.
They are also particularly useful if you are applying for a spent conviction.

You should aim to get about 3-5 references from various people who know you well, and who know about the charge(s) you are in court for. 

Who can issue a search warrant?

A warrant can be issued by a judicial officer, such as a Justice of the Peace, Magistrate, or Judge.

When can the police carry out a search?

The police can search you, your property, or your vehicle if:
•    They have a valid search warrant (they do not require your consent); 
•    They have your consent to carry out the search; or
•    They are otherwise permitted to by law (see below).

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