The Early Appropriate Guilty Plea (EAGP) scheme is a formal legal process introduced in NSW in April 2018.
Criminal legislation in NSW divides criminal offences into three broad categories for sentencing purposes:
- Summary offences, which are finalised in the Local Court,
- Indictable cases, which may be finalised in the Local Court or committed (referred) to a higher court such as the District Court, and
- Strictly indictable cases, which cannot be finalised in the Local Court and must be referred to a higher court.
The EAGP applies to all strictly indictable offences. It also applies to cases where the prosecution elects to deal with the matter in a higher court (District or Supreme Court).
Where a plea of guilty is entered in such matters, the following sentencing caps apply:
- 25% if the plea of guilty is entered in the Local Court;
- 10% if the plea of guilty is entered in the higher court at least 14 days before the first scheduled trial date, or
- 5% if the guilty plea is entered thereafter.
The discount scheme does not apply to Commonwealth offences and serious children’s indictable offences.
The stages of most EAGP matters are as follows:
- Service of the brief of evidence
- Charge certification
- Case conferencing
- Committal
Brief of prosecution evidence
After being charged by police for an offence where the EAGP scheme applies, you will receive a Court Attendance Notice (CAN). The CAN will advise you of your first court date. This first court date is called a ‘mention’. This is an administrative court appearance, where the Court will usually order the prosecution brief of evidence be served by the police. The brief of evidence is provided to the defendant or their lawyer. It is also provided to the Office of the Director of Public Prosecutions (ODPP).
The matter is usually adjourned for 8 weeks to allow this brief to be served. After the 8-week adjournment, the parties return to Court and provide an update on the status of the brief. For example, if it has been served, or if there are items missing. In most instances, the entirety of the Brief of Evidence is not complete within the initial 8 week period. Instead, it can take several months to be finalised. This is often due to the complexity of the case against an accused, or where there are delays in having forensic or other evidence analysed. In such cases, further adjournments will often be necessary. These adjournments are referred to as a ‘Further Brief Status Mention’. At each mention, the prosecution will confirm progress of the compilation and service of the Police Brief of Evidence.
Charge Certification
Once the Prosecution indicates that the Brief of Evidence has been served on an accused person, the matter will progress to Charge Certification. Charge Certification requires a lawyer from the ODPP to consider the evidence against the accused person and to certify what charges are supported by the evidence.
The matter is usually adjourned for a further 8 weeks to give the ODPP time to certify the charge/s.
It is common for there to be a variation in the number and nature of the charges against an accused person at this stage. A decision may be made to proceed on the current charge(s), to add additional charges, to lay more serious, or less serious charges or to withdraw some or all of the charges against an accused. As the Defendant, you do not have a say in this process, but will instead have the opportunity to negotiate at the next stage of the EAGP process.
The Charge Certificate will also demonstrate whether the prosecutor intends to proceed with the trial in the District Court or Supreme Court.
Case Conference
Once the prosecution has filed the Charge Certificate, the Court will order that the parties participate in a Case Conference. The matter is adjourned for another 8 weeks for this purpose.
A Case Conference is a meeting where the Defence and the Prosecution narrow any potential issues in dispute and ascertain whether any plea negotiations, such as pleading to less serious charges, or reducing the number of charges, can be entertained. The parties may also discuss issues that may impact the matter progressing to trial. There may be more than one Case Conference required.
At the conclusion of this stage, the parties will fill in a Case Conference Certificate. The certificate is signed by the ODPP, the solicitor for the Defendant and the Defendant themselves. This document will record any offers made by the parties, and is filed in Court in a sealed envelope.
There are a number of potential outcomes which may arise from a Case Conference depending on the circumstances of an accused’s case:
- Plea(s) of guilty are to be entered. The accused’s matter is committed (transferred) to the District Court or Supreme Court for sentence.
- Plea(s) of guilty are to be entered and the accused’s matter is to remain in the Local Court for sentence.
- No plea agreement has been reached and the matter is to be defended. The matter is committed (transferred) to the District or Supreme Court for trial.
- In some limited circumstances, a Committal Hearing may be appropriate to assess the strength of the case against an accused.
A guilty plea at this point allows for the maximum sentencing discount of 25% to apply. Once a matter is committed, this discount can no longer be accessed.
Committal
Once the Case Conference certificate is filed, the Court is provided with an update on how the matter will proceed.
Pleas of guilty or not guilty will then be entered in court for the offence/s listed on the charge certificate.
- If pleas of guilty are entered, then agreed facts will be provided to the Court. The matter will then be committed to the District Court or Supreme Court for sentence.
- If pleas of not guilty are entered, the matter will be committed to the District Court or Supreme Court for a trial. At trial, a jury will determine whether the prosecution has proven its case beyond a reasonable doubt.
If your matter is proceeding to trial, a 10% discount on your sentence is still available. However, the plea of guilty must be entered at least 14 days before the trial’s first day.
If you enter a guilty plea less than 14 days before the trial, a 5% discount can apply.
Conclusion
It is crucial to obtain legal advice as soon as you are charged with a serious criminal offence.
Arthur Law’s criminal lawyers have been independently recognised as among the best in NSW. Our team specialises in serious and complex criminal offences proceeding to trial or sentence.
Contact us today for a free Ask Arthur Consultation.
Written by Ruby Bickford
