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Negotiating with the Prosecution

In criminal law, negotiation is a mechanism of attempting to resolve competing interests between the Prosecution and the Defence. It is very important because the Defendant could secure the best outcome for himself/herself. In New South Wales, the Police Prosecutor deals with summary offences (e.g. drink-driving and common assault) while the Office of the Director of Public Prosecutions (DPP) deals with more serious offences (also known as indictable offences). Negotiation is not only prevalent in Australia, but also in other countries around the world including the United States of America, England and China.

What can be negotiated?

The most popular area for negotiation is that of which charges the Defendant might plead guilty to if the Defendant will admit certain allegations. Another popular area of negotiation is whether the Defendant will provide assistance to the authorities in the event that negotiation is successful. Examples of assistance include giving evidence against a co-accused at trial and assisting police in relation to different matters.

Why is negotiation important?

Firstly, it saves the Defendant and their friends and family a lot of stress in having the matter resolved earlier. The Prosecution process often takes years to finalise from the charge date to the sentencing date. Secondly, accepting a plea bargain could save the Defendant from a harsher punishment because they have a weak case at trial. For example, if the Defendant suffered significant memory loss and could not recall the alleged offence, then they would probably struggle to rebut the Prosecution’s arguments. Thirdly, an early guilty plea could lead to a sentencing discount because it shows the Judge that the Defendant is remorseful. Fourthly, it narrows down the issues to be dealt with at trial.

What the negotiation process could look like for summary offences:

Prior to the first court appearance, the Defendant writes to the Police to request a withdrawal of a charge(s). The Defendant could support their request with the following reasons:

– The Defendant has a good defence;
– The Police do not have enough evidence to prove the alleged offence; or
– The Defendant agrees to plead guilty to a less serious charge if the Police withdraws the more serious charge.

If the Police do not agree to withdraw the charge, then the Defendant will have to consider pleading guilty or not guilty at Court.

What the negotiation process could look like for indictable offences:

The DPP certifies the following charges:

No. Description Offence details Maximum imprisonment
1 Assault child with intention to have sexual intercourse with 13 years old child S66D Crimes Act 1900 16 years
2 Grooming 13 years old child for unlawful sexual activity S66EB(3) Crimes Act 1900 12 years
3 Intentionally sexually touches a child who is 13 years old S66DB(a) Crimes Act 1900 10 years


A week later, the Defence writes to the DPP and offers a plea of guilty to the following charge only.

No. Description Offence details Maximum imprisonment
3 Intentionally sexually touches a child who is 13 years old S66DB(a) Crimes Act 1900 10 years


Before deciding, the DPP will consider three factors, including:

1. Whether the evidence available can satisfy each element of the alleged offence;
2. Whether there is no reasonable prospect of conviction by a jury; and if not
3. Whether discretionary factors nevertheless determine the matter should not proceed in the public interest.

A lesser charge may be accepted if the Prosecution is satisfied it is in the public interest after considering the following matter:

– The alternative charge sufficiently reflects the criminality of the Defendant’s action and the plea provides enough scope for sentencing; and/or
– The Prosecution case is weak; and/or
– The saving of cost and time weighed against the likely outcome if it continued to trial is significant; and/or
– It will save a witness from the stress of testifying in a trial; and/or
– A victim has expressed a wish not to proceed with the charges.

If the DPP accepts the offer, then the matter would progress to sentencing before the Court. If the DPP rejects the offer, then negotiations will either continue or progress to Court for a trial date.

Guilty plea discounts for offences in NSW

The following sentencing discounts are prescribed for indictable offences based on the timing of the plea (Part 3, Division 1A, Crimes (Sentencing Procedure) Act 1999 (NSW)).

Timing of guilty plea 


Before committal in the Local Court


Up to 14 days before the first day of trial in the District or Supreme Court (for plea or notice of plea)


In any other circumstances



Overall, negotiation is an important aspect of the Prosecution process as it can lead to the best outcome for the Defence and for the community. If you have been charged with a serious offence, our experienced criminal law team at Legal Point Lawyers are able to assist.

Disclaimer: This publication is general information only and does not purport to provide legal advice. We do not accept responsibility for any losses for reliance upon this publication.

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