Activity 2g

1. The task word ‘discuss’ require students to consider both sides of something. In this case, ‘discussing’ the ability of plea negotiationsto achieve theprinciples of justice requires students to write about relevant strengths and weaknesses of sentence indications. Responses will vary according to the arguments selected.

        Arguments in support of sentence indications achieving the principles of justice include:

• The right to be tried without unreasonable delay is contained in s25 of the Victorian Charter, and providingsentence indications can speed up the resolution ofthe case through a guilty plea.
• An accused person is given more information andopportunity to plead guilty and reduce costs such as timeheld on remand and legal representation fees, and therisk of a higher sentence if they are found guilty at trial.
• If the accused pleads guilty as the result of an indication,victims and witnesses may benefit from having fasterclosure and a guaranteed guilty result. Also, from beingspared the trauma of having to give evidence at trial.
• If an indication results in a guilty plea, the courts arespared the administration and expense of a contestedtrial or hearing. This also allows other cases to be heardmore quickly.

        Arguments against sentence indications achieving the principles of justice include:

• There may be a loss of procedural fairness to the accused because the case against them has not been considered by the court at the time of the indication. For indictable offences, courts will generallyonly consider indications in pre-trial hearings.
• There may be a loss of access for witnesses and victims, becausebinding indications are given before their evidence has been heardand tested.
• It is questionable how big the gains are of the indication scheme,in terms of attaining guilty pleas. For example, in the SentencingAdvisory Council’s 2010 review of the scheme, only two indications

had been given in the Supreme Court. In the same review, it wasfound that the indication scheme had “helped to resolve less thanone per cent of the 2231 cases finalised during the review period.”

• Rejected indications can cause further delays and expense. If anaccused continues to plead not guilty, a new magistrate or trialjudge must be allocated to the case and a new court date must be

scheduled. Otherwise, the accused may suffer prejudice becausethe judicial officers know they requested a sentence indication – itmay make them look guilty.

• The amount of information that the court can give the accused isvery limited. No indication is given as to the length of the sentence;or, for indictable offences, what type of sentence will be given if anon-custodial one is indicated.
• It is questionable how big the gains are of the indication scheme,in terms of contributing to faster and more efficient resolution.
• All problems relating to guilty pleas apply to the sentence indicationscheme: they suggest that an accused enforcing their presumptionof innocence and right to a trial is acting improperly; and theypressure accused persons into pleading guilty by highlighting theconsequences of going to trial – such as no sentence discount.Victims and witnesses may also feel that the accused has unfairlybenefited.

2. The task word ‘evaluate’ require students to consider both sides of something, as well as express an opinion judging the relative strengths of the arguments. For example, a student might argue, based on evidence when referring to the arguments for and against sentence indications, that they do achieve one principle of justice. Responses will vary according to the arguments selected.