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Choosing Whether to Plead Guilty or Not Guilty

When facing criminal charges, one of the most crucial decisions a defendant must make is whether to plead guilty or not guilty. This decision can significantly impact the outcome of a case and significantly impact a person’s future. Understanding the factors involved and the legal implications are essential in making an informed choice. 

Understanding the Charges 

The first step in making this decision is to gain a thorough understanding of the charges, including potential summary offences. It is crucial to review the allegations, the supporting evidence and the potential penalties that may be associated with each criminal charge. These can range from a fine to a prison sentence. It is crucial to seek legal advice from an experienced criminal lawyer who can help explain the charges, their consequences and penalties and the possible defences available.

Understanding what pleading guilty means, and the consequences of any criminal conviction are essential aspects of comprehending the charges and making an informed decision. Reviewing the court attendance notice and the potential sentence are also vital in understanding the legal implications of the offences.

Pleading Guilty

Pleading guilty is a formal acknowledgement of the defendant’s responsibility for the criminal charges. When a person pleads guilty, the defendant is accepting that they committed the offences as charged and is admitting guilt before the court.

Prior to entering any plea, particularly a plea of guilty, it is important to seek legal advice from a criminal lawyer. It is important to  understand that to find a defendant guilty, the prosecutor must gather and present in court sufficient evidence to prove beyond a reasonable doubt that the accused is guilty of each element of the offence. This usually includes that the accused had the necessary “mens rea” (intention to commit the offence). 

If a plea of guilty is entered, the court, which may be a Local, District, or Supreme Court, will proceed to sentencing. The magistrate or judge considers factors such as the nature of the offence, the defendant’s criminal history, and any mitigating circumstances such as financial situation or character references. The Crimes (Sentencing Procedure) Act 1999 (NSW) sets out the procedure the court will apply in deciding a sentence, and in particular, section 21A Crimes (Sentencing Procedure) Act 1999 (NSW) sets out the aggravating, mitigating, and other factors to be considered by the court in the sentencing decision.

It is important that during any sentencing submissions, all available evidence is presented to the court on the court date to address the factors set out in the Crimes (Sentencing Procedure) Act 1999 (NSW). This may include medical reports, psychology reports, references from members of the community, evidence of the accused’s good character or achievements of the accused, evidence of family support the accused may receive, written notice of other matters, victim impact statements and other details.

If required to attend court, individuals should be aware of their rights and obligations, and how the law applies to their situation. The decision to plead guilty, accept charges, or contest and defend them may be complex, and must be made with the guidance of legal advice. The outcome may lead to being found guilty and sentenced, perhaps to imprisonment, or it could lead to other outcomes depending on the situation. Police involvement, date of proceedings, and the overall handling of the case by the courts may influence the outcome. 

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Annulment of a Conviction 

Section 4 of the Crimes (Appeal and Review) Act 2001 (NSW) provides that where a court has convicted a person in the person’s absence, that person may make an application to have the conviction annulled. This may be useful where a defendant has, for various reasons, failed to appear in court and a conviction has been made in the defendant’s absence.  

Sentencing Discount

When a defendant is pleading guilty, it often results in a reduced sentence. This discount is typically capped at 25 per cent and can be determined at a Local Court , District Court or Supreme Court level. Section 22 of the Crimes (Sentencing Procedure) Act 1999 (NSW) describes the sentencing discounts for a plea of guilty to a non-indictable offence and Division 1A of the Crimes (Sentencing Procedure) Act 1999 (NSW) describes the sentencing discounts for a plea of guilty to an indictable offence. As a consequence opting for an early guilty plea can significantly impact the outcome of a case, the penalty imposed and potentially decide whether the defendant may serve time in prison or remain within the community.

Penalties of Imprisonment

Section 5 of the Crimes (Sentencing Procedure) Act 1999 (NSW) sets out what is often described as the “section 5 threshold”.  This section ensures that the penalty of imprisonment for criminal offence is used only where the Court decides that there are no appropriate alternatives.  Section 5 provides that a court must not sentence or convict an offender to imprisonment unless the court is satisfied, having considered all possible alternatives, that no alternate penalty other than imprisonment is appropriate.

Genuine guilty plea and “convenience plea”

While courts recognise that people may choose to plead guilty for offences for various reasons, such as to avoid anxiety and stress caused by any hearing, it is crucial to understand that this plea is an unequivocal admission of guilt.

In a notable High Court case, Maxwell v The Queen (1996) 184 CLR 501 Justices Dawson and McHugh emphasised that a guilty plea, must not be “made in circumstances suggesting that it is not a true admission of guilt.” The guilty plea must be genuine and not made under circumstances suggesting otherwise, such as ignorance, fear, duress, mistake or the desire for technical advantages. If the trial judge or magistrate suspects that the guilty plea is not sincere, they must ensure an unequivocal admission of guilt or allow the defendant to enter a plea of not guilty. 

Pleading Not Guilty

Pleading not guilty means contesting the charges and requiring the prosecution to prove the defendant’s guilt beyond a reasonable doubt. If the defendant chooses to plead not guilty, the case will proceed to trial. During the trial, both the prosecution and the defence will have the opportunity to present their cases. The magistrate, judge or jury will ultimately decide whether the charges have been proven by the prosecution beyond a reasonable doubt and if therefore the defendant is guilty or not guilty. 

Factors to consider when contemplating a not guilty plea include:

False Accusations

  • Where the offence charges are based on false accusations, error in identification or any other error of the prosecution, pleading not guilty provides an opportunity to present the defendant’s version of events and refute the allegations in the courtroom. 

Lack of Evidence

  • The evidence against the defendant may be insufficient; pleading not guilty allows the defendant to challenge the prosecution’s case. A criminal lawyer can help assess the strength of the evidence, identify any weaknesses or inconsistencies and develop a suitable defence strategy. It’s therefore vital that you and your legal team are thoroughly prepared regardless of pleading guilty or not.


  • There may be a valid defence to the charges, either factual or legal, such as self defence in an assault charge, consent in a sexual assault charge or duress in many charges. 

Constitutional Rights

  • Pleading not guilty allows the defendant to exercise the defendant’s fundamental right to a fair trial under law. It ensures that the prosecution must meet the burden of proof and present convincing evidence to secure a conviction.

Deciding whether to plead guilty or not guilty is a complex and personal choice that should not be taken lightly. It is important to always consult with a qualified criminal lawyer. The experienced criminal lawyers at Brander Smith McKnight can provide tailored advice based on your specific circumstances. We will ensure that your rights are protected.



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