History and reason
Some years ago, to reduce the numbers of people appearing before the court, the government introduced the “Written Notice of Pleading”. Physically, these are long narrow pieces of yellow paper, that when completed, allow you to tell the court you are pleading guilty to the allegation against you but that you will not be facing the court in person. These Notices are not available for all offences.
Should I use the Written Notice of Pleading
The choice is yours, and yours alone, but it comes with consequences.
At first glance, it may seem attractive to complete the slip and send it in. It is certainly cheaper than employing a lawyer to represent you. You avoid meeting with the lawyer, preparing for court and even going to court. But you should ask yourself this: Am I getting the court to understand my situation, both the offending and my personal situation, such that I will achieve the best possible sentencing outcome?
The police may encourage you to use the Notice of Written Pleading, it easier for them and the matter will be disposed of very quickly. They may even suggest you will not be convicted if you adopt this course, in our experience, this is not accurate.
If you do not go to court, the magistrate will not see you, will not hear about you and your situation. The court will not hear about how a particular sentencing option may affect you, your work or family life. It may form the view, that you simply could not be bothered to go to court. It may rule out certain non-conviction options that require you to enter into an order – you cannot sign papers if you are not present to do so – so you are taking sentencing options away from the court.
If you are not present the only thing the court has to base its sentencing on is a copy of the police fact sheet, or infringement notice, and a copy of any record you may have. It is a very one-sided process, that is not in your favour.
Lawyer or not?
The choice is yours, and yours alone. Obviously, we think you should be represented to give yourself a chance of fair representation and even up the balance with the prosecution material.
The chances are that a court will ask you questions about you and the offending, so you may achieve a better result than using a Written Notice of Pleading but you also may say something that makes the situation worse. You must think very carefully about what you might say to the court and have everything planned out in advance.
The best chance of achieving the best result is to engage an experienced lawyer who can liaise with the prosecution, where possible negotiate the best possible fact sheet, assist you to prepare all the references and a reports that could be relevant and perform all the advocacy in the court room.
I submitted a Written Notice of Pleading, what happens now?
On the day your matter is mentioned in court, in most cases, if you have entered a plea of guilty, the magistrate will proceed to sentencing. Sometimes, the magistrate may adjourn the matter and require your attendance. The usual case is that you will receive a notice from the court advising you of the sentence that has been passed against you.
If you entered a plea of not guilty, the court may set a hearing date immediately, which is unlikely to be convenient to you because you will not have advised the court of the unmissable holiday or appointment or business meeting that has to be attended. If this occurs, you will then have to go through the process of a seeking a vacation of the hearing date and seeking a new hearing date be set, if the court will allow it.
I have been sentenced too harshly, what can I do?
You cannot ask to be sentenced again before the magistrate, that ship has sailed.
Your most obvious option is to lodge an appeal to the District Court to ask a judge to review the severity of the sentence. The District Court is a more senior court presided over by a Judge and not a Magistrate. The Judge in the District Court is not restricted to the sentence in the Local Court and may warn you, called a “Parker Direction”, that they are considering a heavier sentence. If you receive this warning you will be allowed to withdraw the appeal.
You will have the opportunity to appear or be represented in the District Court. You will be able to put your case, explain what happened, why it happened and why it will not happen again. However, the District Court will be dealing with the matter on the basis of the fact sheet tendered to the Local Court, the opportunity to negotiate that document is likely to have passed.
If you wish to appeal you have 28 days from date of conviction as of right and a further two months if the District Court grants leave. After this time there is usually no ability to appeal.
The Supreme Court
If the conviction date has passed by more than three months, there may be grounds to apply to the Supreme Court on the basis of an error of law, if one exists. This is a process which will require investigation, including obtaining audio recording of the matter being dealt with. The reasons the magistrate gave for sentencing you in the way they did will, likely, be the error of law to ground the appeal on.
If you submitted a Written Notice of Pleading, the chances are it was dealt with at the end of the day when all the appearances have been completed. If the magistrate failed to give sufficient reasons for their decision there may be grounds to have the matter sent back to the Local Court for re-sentencing.
This is a complex option to explore and one that comes with no guarantees, however, there have been cases that have be remitted by the Supreme Court back to the Local Court to be re-sentenced for exactly this reason.
It is a much safer and cheaper option to have the matter dealt with properly and professionally at first instance in the Local Court, if at all possible.
If you are considering using a Written Notice of Pleading and would like assistance to understand your options, J Sutton Associates, have NSW Law Society recognised Accredited Specialists in criminal law, with decades of experience acting for people facing court. Call 02 8080 8055 for personalised advice and service.