A plea of guilty is a factor to be taken into account in mitigation of sentence. There are obvious benefits also to the criminal justice system resulting from a plea of guilty. The earlier it is offered, the greater will be the benefits accruing to the accused person and the community.
Negotiations between the parties are to be encouraged and may occur at any stage of the progress of a matter through the courts. Charge negotiations must be based on principle and reason, not on expedience alone. Written records of the charge negotiations must be kept in the interests of transparency and probity.
Prosecutors are actively to encourage the entering of pleas of guilty to appropriate charges. They should point out to the defence the benefits available pursuant to section 22 of the Crimes (Sentencing Procedure) Act 1999 and R v Thomson and Houlton (2000) 49 NSWLR 383 and the significance of the time at which a plea is entered. They should refer to the section and the judgment, where appropriate, in submissions to the court.
Where the appropriate authority or delegation has been obtained or is in place, a prosecutor may agree to discontinue a charge or charges upon the promise of an accused person to plead guilty to another or others. A plea of guilty in those circumstances may be accepted if the public interest is satisfied after consideration of the following matters:
the alternative charge adequately reflects the essential criminality of the conduct and the plea provides adequate scope for sentencing; and/or
the evidence available to support the prosecution case is weak in any material respect; and/or
the saving of cost and time weighed against the likely outcome of the matter if it proceeded to trial is substantial; and/or
it will save a witness, particularly a victim or other vulnerable witness, from the stress of testifying in a trial and/or a victim has expressed a wish not to proceed with the original charge or charges.
The views of the police officer-in-charge and the victim must be sought at the outset of formal discussions, and in any event before any formal position is communicated to the defence, and must be recorded on file. Delegated lawyers and Crown Prosecutors may substitute charges in the Local Court where the police officer-in-charge and/or the victim (if any) agree or do not agree. The terms of the delegation must be understood and complied with.
In matters in the District and Supreme Courts, where the police officer-in-charge or the victim objects to the proposed charge or charges, the Crown Prosecutor should consult the Senior Crown Prosecutor or a Deputy Senior Crown Prosecutor, or in regional areas the most senior Crown Prosecutor available, or if appropriate the Director or a Deputy Director. A Trial Advocate with conduct of such a matter should submit the matter to the Director's Chambers. A written record must be made of all consultations described above.
If a version of the facts is negotiated and agreed, the ODPP lawyer or Crown Prosecutor involved must prepare or obtain a written statement of agreed facts to be signed on behalf of both parties. A copy must be kept on file with an explanation of how and when it came into being. Where reference to any substantial and otherwise relevant and available evidence is to be omitted from a statement of facts, the views of the police officer-in-charge and the victim must be sought about the statement of agreed facts before it is adopted.
The views of the victim about the acceptance of a plea of guilty and the contents of a statement of agreed facts will be taken into account before final decisions are made; but those views are not alone determinative. It is the general public, not any private individual or sectional, interest that must be served.
An alternative plea will not be considered where its acceptance would produce a distortion of the facts and create an artificial basis for sentencing, or where facts essential to establishing the criminality of the conduct would not be able to be relied upon, or where the accused person intimates that he or she is not guilty of any offence.
Prosecutors should be familiar with the principles established in R v De Simoni (1981) 147 CLR 383. Where the prosecution agrees not to rely on an aggravating factor no inconsistent material should be placed before the sentencing judge.
It is often not possible for the same prosecutor to have the conduct of the one matter throughout the course of the proceedings. Consequently, records must be made as events occur for the assistance of prosecutors coming into the matter at later times and for transparency and probity. The progress of negotiations and connected requirements must be recorded, step by step, by the ODPP Lawyer and Crown Prosecutor involved at the time by notes on the file made as soon as practicable after the event. Entries should also be made on CASES which enable the course of the proceedings to be traced, but they may be less detailed. Any offer by the defence must be recorded clearly, including any offer that is rejected.
If facts for a plea of guilty to an indictable matter are agreed while the matter is in the Local Court, they should be amended later only if the evidence available has altered in a material respect. Ordinarily, however, a statement of agreed facts is to be finally settled by a Crown Prosecutor or Trial Advocate when agreement is reached for a plea of guilty in the District Court or Supreme Court.
Any written offers or representations by the defence must be filed. In many cases there will not need to be any written record from the defence; but in any case of complexity or sensitivity, the defence should be asked to put in writing (or to adopt a prosecution document recording), without prejudice, the offer of a plea and the reasons why it is considered an appropriate disposition of the matter. In some cases it may be appropriate to inform the defence that the prosecution will not consider an offer unless its terms are clearly set out in writing. The content and timing of such communications will be of significance to the defence as well, given the weight to be accorded to early and appropriate pleas.
Where an earlier offer has been rejected by a lawyer or Crown Prosecutor any subsequent proposal to reverse the decision where circumstances are otherwise unchanged should be referred to a Managing Lawyer or Deputy Senior Crown Prosecutor respectively.
If a prosecutor is contemplating accepting a plea of guilty to manslaughter on the basis of substantial impairment by an abnormality of mind arising from an underlying condition pursuant to section 23A of the Crimes Act 1900, the community values inherent in the requirement of section 23A(1)(b) are to be taken into consideration.
Some charges may be suitable for inclusion on a Form 1 under section 32 of the Crimes (Sentencing Procedure) Act 1999. The decision to place offences on a Form 1 should be based on principle and reason, not administrative convenience or expedience alone. It should be remembered that offences on a Form 1 are all taken into account when sentencing for the principal offence and that the maximum penalty available is the maximum of the particular principal offence. The remarks of Spigelman CJ in Attorney General's Application under s37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) NSWCCA 518 at  are significant:
"Striking the appropriate balance between overloading an indictment and ensuring that the indictment - leading to conviction and to sentence for, and only for, matters on the indictment - adequately reflects the totality of the admitted criminality, is primarily a matter for the Crown. The decision of the Crown in this regard will, no doubt, be guided by the determination in this case that, when matters are 'taken into account' on a Form 1, the sentencing judge does not, in any sense, impose sentences for those offences."
A balance is to be struck between the number of counts on the indictment and the Form 1. Excessive counts on the indictment can make sentence proceedings unduly lengthy and complex. On the other hand, there is a public interest in ensuring that certain offences are recorded as convictions.
In R v Barton  NSWCCA 63 Spigelman CJ examined the means by which the additional matters, taken into account on a Form 1, are reflected in the sentence imposed. His Honour stated:
" The position, in my opinion, is that, although a court is sentencing for a particular offence, it takes into account the matters for which guilt has been admitted, with a view to increasing the penalty that would otherwise be appropriate for the particular offence. The Court does so by giving greater weight to two elements which are always material in the sentencing process. The first is the need for personal deterrence, which the commission of the other offences will frequently indicate, ought to be given greater weight by reason of the course of conduct in which the accused has engaged. The second is the community's entitlement to extract retribution for serious offences when there are offences for which no punishment has in fact been imposed. These elements are entitled to greater weight than they may otherwise be given when sentencing for the primary offence. There are matters which limit the extent to which this is so. The express position in subs 33(3) referring to the maximum penalty for the primary offence is one. The principle of totality is another."
The counts on indictment should reflect such matters as the individual victims, range of dates, value of property and aggravating factors. Where there are multiple offences relating to the one episode it will be appropriate to place preparatory or lesser offences on the Form 1: eg. indecent assault leading to sexual intercourse without consent; robbery of customers within a bank during a bank robbery (unless there are aggravating factors such as actual bodily harm caused to the customer).
Generally speaking, the maximum penalty of offences placed on a Form 1 should be less than the maximum penalty available for the principal offence. An obvious exception to this is the situation where multiple counts for the same or similar offences (such as a series of counts for break, enter and steal or robbery) have been laid against an accused person. However, even in these situations aggravated forms of such offences should not be included on a Form 1 if the principal offence is a non-aggravated count of the same general type.
Offences such as failure to appear, firearms offences (where there are multiple firearms offences some may be placed on a Form 1), serious offences against police officers, breaches of apprehended domestic violence orders, offences committed while on bail or while on probation/parole, offences in relation to the administration of justice, or traffic offences where the offender has a poor traffic record should not generally be placed on a Form 1. Such a matter should usually proceed on indictment or by summary proceedings so that a conviction is entered for the public record.
The views of the police officer-in-charge and the victim must be sought and recorded on file before any decision is made about placing offences on a Form 1.
Police officers are a prescribed class of persons for the purpose of signing a Form 1 on behalf of the Director. The Director has also authorised Crown Prosecutors and some senior lawyers to sign Forms 1. Ordinarily a Form 1 will be signed by a police officer.
It is the responsibility of the prosecutor negotiating the use of a Form 1 to have a properly completed Form 1 signed by an authorised person before that negotiation can be settled with the defence. Prosecutors who do not have the delegated authority to sign a Form 1 cannot give an undertaking that an offence will be included on a Form 1.
The Form 1 schedule should contain as much detail as possible. It is not sufficient merely to recite the title of the offence.
A brief statement of facts within the schedule is usually sufficient, but in more serious cases statements of facts relevant to the Form 1 offences should be tendered, together with witness statements and other relevant information, and cross-referenced on the Form 1. The schedule should contain the charge number and sequence number so that all charges can be accounted for. The prosecutor conducting the sentence proceedings should be satisfied that the decision to place offences on a Form 1 is within principle and reason. If necessary the prosecutor should consult a senior officer.
Pursuant to section 16BA(1) of the Crimes Act 1914 (Cth), Commonwealth offences can be taken into account on a schedule provided there is a Commonwealth offence on the indictment and provided approval is obtained from an appropriately delegated officer; that is, an officer delegated to sign Commonwealth indictments (which includes the Director, Deputy Directors and some Crown Prosecutors). The general principles, as set out above, apply to the decision to place Commonwealth offences on a schedule.