29th December 2017
Plea Bargaining is the trading down of offences committed by a perpetrator in return for a guilty plea. Guilty criminals reduce their sentence by having offences they committed whitewashed and, as an added bonus, because they were never convicted of these offences, should they reoffend not having those crimes ever used against them again. It is a system that benefits our worst and most violent criminals, the very ones we want removed from our community.
Allegedly these Plea bargaining deals are done in consultation with the Informant (the police member who charged the offender) and the victim, but in practice this process managed by Prosecutors and Defence Counsel operates perilously close to coercion in obtaining (if they do) any acquiesce from parties.
This process is very attractive to criminals that have been caught dead to rites; not only do their crimes get watered down and offences whitewashed but they get the bonus of the Court not hearing the magnitude of their offending, the anguish and suffering of the victim and attract an ‘early guilty plea’ sentence reduction as well.
A criminal who steals a car, burgles a house, sexually assaults one victim and shoots another the wounds nearly fatal, steals all the family valuables while high on an illicit drug is a prime candidate for a generous plea bargain. That the Police caught the offender in possession of the firearm in the stolen car with the family’s property and additionally a quantity of the drugs, you would think it would be a clear cut open and shut case that the perpetrator would be held to account for all these offences.
But this perpetrator can bargain for the majority of the offences being dropped, including the most serious, in return for a guilty plea to one or two lesser charges. Other offences not proceeded with are effectively expunged. There is something criminal about that.
This type of Plea bargain is argued as efficient jurisprudence as proceeding to trial with all the matters would not achieve a better result. What does ‘better result’ mean and for whom, the community may have a very different opinion to jurists.
While one of the objectives of our legal system is to rehabilitate offenders, we all know that in the majority of cases where offenders commit multiple offences rehabilitation is realistically a pipe dream, but the plea bargaining process paradoxically rewards bad behaviour of our worst and often most brutal criminals, how sensible is that?
It is the reoffending that highlights the absurdity of plea bargaining, which by the way is not legislated but a process introduced by lawyers, not our elected government, raising the question as to who is the main beneficiary of this process. I am tipping it is not the victims.
After fulfilling the penalty imposed in the scenario above the perpetrator re offends, as too often is the case, the offences that were whitewashed (not presented so no conviction)from the earlier trial cannot be presented to the court as a prior conviction. That means in a new trial for drug offences the perpetrators previous history of drug abuse and consequential behaviour cannot be put before the Court. The Court would reasonably treat the subsequent drug offence by this criminal differently had the Court known this was an habitual and brutal offender, whose previous offending involved drugs.
Another matter of substantial influence on Plea bargaining is a reluctance of prosecutors to run cases where there is a risk that costs may be awarded against the Crown or Police. Cost are never awarded against the defendant in criminal matters irrespective what costs are borne by the Crown by shenanigans of the defendants or their legal counsel.
There is no argument with costs being awarded against the Crown or Police if the prosecution is malicious in any way but to regularly, as a matter of course, award costs against the Crown or Police simply for a case to fail is a relatively new nuance in the history of jurisprudence and must be addressed by legislators as a matter of urgency.
Unwilling to proceed with cases based on the risk of costs, is yet another win for the career criminal and makes nobbling of witnesses by the criminals and or associates an advantageous endeavour.
If the main justification for this plea bargaining outbreak is cost, then the old adage of,’ Justice on the cheap is justice denied’, has certain resonance jurists should note.
The ridiculous growth of the practice of plea bargaining is now permeating in to how crime is recorded. In the first report from the Community Safety Trustee there was a proposal that the Government is seeking to change the recording of crime statistics to measure incidents rather than the current method which measures all the individual offences irrespective whether they are carried out by the same offender at the same time.
This new idea could mean that all offences that occurred in the Bourke Street Massacre, the multiple offences committed in a particularly egregious aggravated home invasion or the slaughter committed by Julian Knight would all be recorded as just three events or crimes.
Claims in the media by Police that the number of young offenders are decreasing but offenders were committing multiple offences, suggesting somehow this distorts the real figure and the impact of their offending. This hypothesis would be fine was it not for the inconvenience of there being victims, they can’t whitewash or plea bargain their suffering.
A cynic may conclude this new methodology is nothing more than a bit of goal post shifting because of the poor score in their present position. This cannot be allowed to happen.
Overlooked completely by the justice system in their efforts to rein in costs is the impact plea bargaining has on crooks. If they are involved in an ‘incident’ then committing more offences in the commission of that crime doesn’t matter and the deterrent effect of risking a harsher penalty evaporates because they know most of what they do will be plea bargained away, so what the hell.
The lack of prosecution and the soft option of Plea bargaining for offenders aggravated by the knock on effect for recidivists having their crimes purged for the future is a major contributor to the breakdown of Law and Order. Offenders getting free passes and multiple rewards from the legal system for bad conduct, (including their legal fees covered) is bizarre, so it is not surprising that criminality prospers at the expense of us all.
The huge costs of dispensing justice might be reined in if criminals were held to account discouraging them from their lawless ways rather than rewarding them for their bad behaviour.
The scales of justice need to be reset.