Should I Participate in Plea-Bargaining for a Drug Offence?

If you have been charged with a drug offence, the prosecution or (if you agree) your lawyer can enter discussions about making some kind of deal.

This is sometimes called ‘charge negotiations’ or even ‘plea bargaining’.

But what does this involve, and should you ever instruct your lawyer to make or accept an offer?

Plea bargaining, or charge negotiations, can lead to an agreement to:

• Reduce the number of charges that you are facing,
• Downgrade the charges,
• Amend the prosecution’s ‘facts’ – which is the document that outlines the allegations against you,
• Other concessions, eg that you entered a guilty plea at the earliest opportunity, or that you were at the lowest end of the hierarchy of a drug enterprise, or agree to keep the case in the Local Court rather than electing to take it to the District Court where the penalties are more severe.

In terms of reducing the number of charges, the prosecution may offer to ‘drop’ three out of four drug supply charges, for example, if you plead guilty to one.

In terms of downgrading, the prosecution could offer to:

• Drop a charge of deemed drug supply if you plead guilty to drug possession,
• Drop a commercial drug case if you plead guilty to a lower quantity, or
• Drop an ongoing supply charge if you plead guilty to drug supply only.

Reducing the number or downgrading charges can significantly reduce the likely penalty.

The Director of Public Prosecutions Guidelines encourages plea bargaining, which may occur at any time – either before the matter has reached the courts, or later in the proceedings.

While it may seem like tempting, plea-bargaining is not always in your interests as there may not be enough evidence for you to be found guilty in the first place, or you may have a valid legal defence.

So should you participate in plea-bargaining for a drug offence?

On one hand, if the evidence against you is very strong and you are planning on pleading guilty, participating in a plea bargain may be advantageous.

It will mean that the case is over-and-done with more quickly, cheaply and it could even mean the difference between going to prison and remaining free.

But not all plea-bargaining is advantageous for you.

Some unscrupulous lawyers will advise clients to plead guilty without even looking closely into the strength of the prosecution evidence, or considering whether their client has a defence to the charge.

For them, a plea bargain can be a quick-and-easy way out.

A good lawyer, on the other hand, will carefully assess the strength of the prosecution case and will find inconsistencies, deficiencies in the evidence and identify any valid legal defences.

They will normally issue broad subpoenae to ensure that all of the evidence is served upon the defence – not just what police are required to serve.

Rather than reduce or downgrade the charges, good drug lawyers will frequently be able to get cases dropped altogether by highlighting problems in the case and formally requesting the withdrawal of charges.

And if you are innocent, you should never plead guilty.

Since there are serious risks associated with plea-bargaining, it is usually far best to speak to an experienced lawyer before participating.

How do courts feel about charge negotiations?

Most sensible magistrates and judges know that charge negotiations are an essential part of the criminal justice system.

They result in cases being finalised more quickly and thereby reduce court delays.

However, there have been cases where courts have been extremely dissatisfied with agreements between the prosecution and defence.

In one case, a Supreme Court Judge was outraged that a man initially accused of kidnapping a former girlfriend and threatening to bury her alive or kill her had the charges against him reduced.

Despite a shovel, a blanket, five litres of petrol and two large rolls of sticky tape being found in his car, an agreement was reached for the charges to be downgraded so the matter would stay in the Local Court.

Matters dealt with in the Local Court attract a lower maximum penalty, usually two-years imprisonment.

In this case, the plea deal was withdrawn, and the Judge opined that whoever made the offer deserved to be sacked.

This is surely a warning to prosecutors and defence lawyers not to engage in completely inappropriate plea-bargaining.

If you are facing any drug charges, it is always better to speak to an experienced lawyer before deciding upon your plea.

And if you have a lawyer and are considering accepting a plea-deal, it’s often a good idea to get a second opinion – it’s your life and liberty after all.