Guilty Pleas: Charges, Sentencing, Value Of Defence Counsel

Jun 13, 2023

Pleading Guilty

Proceeded Charges

In the Criminal Justice System, where the Accused faces multiple charges, the Prosecution has the discretion to proceed on any number of charges it deems fit. As a general rule of thumb, the Prosecution would usually proceed with the most serious charge(s).

It is important to understand that the Accused will ultimately be convicted on the Proceeded Charges, and sentenced on that basis. However, the calibration of the final sentence by a Sentencing Court could be affected by charges which the Prosecution elects not to proceed on. Such charges are more commonly known as charges taken into consideration.

Charges Taken into Consideration (“TIC” Charges)

TIC Charges will normally enhance the sentence that would otherwise be awarded based on the proceeded charges. However, the enhancement can only be in respect of the forms of punishment which are prescribed for that particular TIC offence.

An Accused person can be fairly sure that any enhancement in sentence will be less severe than the sentence he would have received had the Prosecution proceeded with the TIC offences as well.

After the Accused is sentenced, unless the Accused’s conviction for the offences under the Proceeded Charges is set aside, the Accused cannot subsequently be charged or tried for any TIC offences.

Plead Guilty Mention

An Accused person can admit to the commission of the offence upon which a charge is preferred against him. In other words, the accused person can elect to plead guilty to the charge(s). This will be done at a Plead Guilty Mention.

The following is a rough guide of what to expect at a Plead Guilty Mention:

• First, the charge(s) is read out to the Accused by the Court officer in English or a translator in a language of the Accused’s choice. The punishment of the charge is also read out to the Accused.
  
• Second, if the Accused is not represented by a lawyer, and wishes to plead guilty, the following must be complied with before the Accused can be convicted on his/her guilty plea:
  
  • The Court must be satisfied that it is the Accused who wishes to plead guilty, and that he/she understands the nature and consequences of his/her plea and the punishment prescribed for the offence. This means that:
    
    • The Accused must know exactly what offence he is being charged for and what offence he is pleading guilty to;
      
    • The Accused must know the punishment that is prescribed by law for the offence that he/she is being charged for, and the possible sentence he/she would receive upon conviction; and
      
    • The Accused must understand that the right to appeal is limited only to sentence (i.e., duration of imprisonment/strokes of the cane/quantum of fine if any)
      
  • The Court must be satisfied that the Accused admits without qualification to the offence(s).

If the Accused is represented by a Defence Counsel, and wishes to plead guilty, the Court must record the Defence Counsel’s confirmation that the Accused (a) understands the nature and consequences of the Accused’s plea; and (b) intends to admit to the offence without qualification.

If the Court is not satisfied with any of the forecited safeguards, the guilty plea will be rejected.

• Third, after the guilty plea is recorded, the Prosecutor reads the Statement of Facts (“SOF”). The SOF is a document drafted by the Prosecutor which constitutes a detailed account of the circumstances leading up to and surrounding the offence. The Court must be satisfied that the SOF accurately reflects the charge and is sufficient to constitute the offence in law. If the SOF is valid and the Accused admits to the SOF without qualification, he/she is found guilty and convicted.

• Fourth, the Prosecutor then applies for any remaining charges (if any) to be read to the Accused so that his/her consent may be taken for these charges to be taken into consideration. TIC charges will be considered for sentencing purposes. As mentioned, TIC charge(s) might lead to a more severe sentence being imposed; however, any increase in the severity of a sentence will be less severe than if an Accused person was separately charged.

•  Fifth, the Prosecutor then reads out the Accused’s previous convictions (if any), and may then address the Court on sentence. The address on sentence may include (a) any prior relevant antecedents of the Accused; (b) any Alleged Victim impact statement; and (c) any relevant factors which may affect the sentence. It should be noted that any similar antecedents might result in a harsher sentence imposed on the Accused.

•  Sixth, the Court must hear any plea in mitigation of sentence by the Accused, with the Prosecution having a right of reply. Mitigation pleas are usually crafted by Defence Counsels. A mitigation plea cannot qualify the plea. This means that the Accused cannot dispute his/her commission of the offence with the requisite intention.

• Seventh, the Court would then pronounce the sentence immediately or on such day as it thinks fit. Where a sentence of imprisonment is meted out, it would normally take effect from the date on which the sentence is passed, unless otherwise directed by the Court.
  
  

Retraction/Rejection of Plea

There are numerous safeguards in place within the Plead Guilty Procedure to ensure the propriety of a plea of guilt. Broadly speaking, a plea can be retracted or rejected at the following three stages.

Pre-Conviction and Pre-Sentence Stage:

• If the Court is not satisfied that the Accused fully comprehends the nature and consequences of a plea of guilty, the plea must be rejected.

• If the Court is not satisfied that the Accused intends to admit to the offence without qualification, the plea must be rejected.

Post-Conviction and Pre-Sentence Stage

• If the Accused qualifies his/her plea during mitigation, the plea must be rejected. However, if the Court finds that the Accused’s conduct amounted to an abuse of process, it is not compelled to reject the plea.

• If the Accused makes allegations attacking the integrity of the Plead Guilty Procedure, the onus would be on the Accused to adduce sufficient evidence to prove his assertions. The Court takes a serious view of any such allegations, and will take steps to ascertain the truth of the matter in such circumstances.

            Post-Conviction and Post-Sentence Stage

• Where an Accused seeks to retract his/her plea of guilt after he/she has been convicted and sentenced, the Court would take a dim view of the Accused’s assertions. At this point, the only way to retract a plea of guilt is via a Criminal Revision (see Criminal Revisions).
  
  

Newton Hearing

A Newton Hearing determines matters that may materially affect the sentence. It must be emphasised that a Newton Hearing does not deal with the legitimacy of the Accused’s conviction.

A Newton Hearing is conducted to determine a contested fact (i.e., a fact which the Accused and the Prosecution do not agree on) which is material to sentencing.

Newton Hearings are the exception rather than the norm, and would not ordinarily be convened unless the sentencing judge was satisfied that it was necessary to resolve a difficult question of fact. For instance, a Newton Hearing could be appropriate where the Prosecution and the Accused are at odds with whether the latter is indeed suffering from a particular medication condition.

Value of Defence Counsel in the Plead Guilty Procedure

Criminal lawyers, commonly known as defence counsels, offer a line of communication with the Prosecution, which is crucial in facilitating the plea bargaining process between an Accused and the Prosecution.

It is crucial for the Accused to understand the nature and consequences of pleading guilty. The Accused must be cognisant of his/her legal rights throughout the process. In these connections, a Defence Counsel can help the Accused navigate through the intricacies and nuances of the Plead Guilty process.

Defence counsels are also responsible for crafting mitigation pleas on behalf of the Accused. A well-crafted mitigation plea would bring all relevant mitigatory factors and sentencing precedents to the attention of the Court. Suffice to say, mitigation pleas play an instrumental role in obtaining the best possible outcome for the Accused.