Should I plead guilty?

9.1The plea calculus for a presence offence

The three-question framework from the possession course applies, but the answers are more determinate. Element one is usually admitted; element two is proved by certificate unless a procedural defect is found; the cost of an unsuccessful defended hearing is the loss of the s 22 discount and, in practice, a Judge less receptive to the s 10 argument after a day spent contesting a certificate. The default advice for a first-offence s 111 with a clean brief is an early guilty plea.

9.2The discount

Section 22 of the Crimes (Sentencing Procedure) Act requires the court to take into account the fact of a guilty plea and when it was entered. For Local Court matters the utilitarian discount is conventionally up to 25 per cent for a plea at the first available opportunity [review]. For a fine-only offence the discount has limited purchase on the fine itself; its real value is as evidence of contrition and acceptance of responsibility under s 10(3)(a), which is another reason the early plea and the s 10 argument travel together.

9.3The adjournment

A plea of guilty at the first mention followed by a request for an adjournment to complete the Traffic Offenders Program is routine and is granted. The adjournment should be long enough for completion; four to six weeks is typical. The practitioner tells the court at the plea that a s 10 will be sought, which signals preparation and avoids the court sentencing on the day.

9.4The nine triggers

Each of the nine triggers in the plain-English version corresponds to a change in the analysis: the prior converts the tier; the collision or passenger aggravates; the employment or licence class changes the consequences and sometimes the available orders; the provisional licence adds an automatic suspension regime; the visa or registration consequences raise the disproportion argument but also the stakes; the multiple-drug or combined-alcohol certificate may mean a different or additional charge; the roadside statement may be an admission that closes the mistake defence; the unlawful-stop point raises an exclusion argument under s 138 of the Evidence Act [review]; and the last trigger is the honest one.