Anyone charged with a criminal offence can ask a judge for a sentence indication. A sentence indication is exactly that — an indication of what the judge would sentence the person to if he or she pleaded guiltyAlthough judges are not required to give a sentence indication when asked to, they commonly do.
A judge can only give a sentence indication before the trial begins. Before doing so a judge must have an agreed summary of facts, any information about previous criminal convictions, and any victim impact statements. Both the prosecution and defence lawyers can make submissions.
A sentence indication will typically outline the end sentence that is likely to be imposed if the defendant were to plead guilty. Alternatively, it might outline what type of sentence will not be imposed. For example, a judge might indicate that the defendant will not be sent to prison, but that all other sentencing options remain open depending on any further information provided at sentencing.
Sentence indications are given in open court with the defendant usually present to ensure that he or she understands the indication and the reasons for it. Publication of a sentence indication, including the fact that one has been given or requested, is suppressed until the defendant has been convicted and sentenced or the charge has been dismissed.
The defendant has five days to either accept or decline a sentence indication. If the defendant declines then it will cease to have effect and the case will proceed to trial as normal.
Importantly, if the case does go to trial, the fact that the defendant previously requested a sentence indication cannot be raised at trial. This is so it cannot be used against the defendant to imply that he or she is guilty.
“A sentence indication will typically outline the end sentence that is likely to be imposed if the defendant were to plead guilty”
On the other hand, if a defendant accepts a sentence indication, he or she will enter a guilty plea. The matter will then proceed to sentencing.
Although the sentence indication is not strictly binding, a judge will typically sentence the defendant in accordance with the earlier sentence indication. If a judge proposes to depart from that sentence indication, the defendant must be given the opportunity to vacate his or her guilty plea and defend the charges.
A sentence indication is therefore a valuable tool. It provides a degree of certainty about the punishment a defendant might face, and may help a defendant to make a better informed decision about whether or not to plead guilty.
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