| Defence advocate is responsible for seeking an indication and should not do so without signed written authority from their client. They are personally responsible for ensuring the client understands that: he or she should not plead guilty unless he or she is guilty, any sentence indication given by the court remains subject to the entitlement of the A-G (where it arises) to refer an unduly lenient sentence to the Court of Appeal, any indication given by the court reflects the situation at the time when it is given and if a guilty plea is not tendered in the light of that indication, the indication ceases to have effect, and any indication which may be given relates only to the matters about which an indication is sought. Agreed basis should be reduced to writing before an indication is sought. The Court should never be invited to indicate levels of sentence which depend on possible different pleas. In the unusual event that the accused is unrepresented, the accused would be entitled to seek a sentence indication of his or her own initiative, but it would be wrong for either the court or prosecuting counsel to take any initiative in this regard that might too readily be interpreted as or subsequently argued to have been improper pressure. | React to the process. Inquire whether the Court has access to all the evidence relied on by the Prosecution. Draw attention to minimum or mandatory sentencing requirements, sentencing guidelines, and remind the judge that the entitlement of the A-G to refer any eventual sentencing decision as unduly lenient is not affected. Counsel should not say anything which may create the impression that the sentence indication has the support or the approval of the Crown. | An indication of sentence should not be given unless it is sought by the accused. It will normally be sought at the plea and case management hearing following a written application. No less than 7 days notice normally. Should take place in open court, full recording, both sides represented and in the presence of the accused. Where the sentence will vary according to plea, the court should only give an indication as to the sentence following a guilty plea. An indication as to sentence following trial may put undue pressure on the accused to plead. The court is also entitled in an appropriate case to remind the defence advocate that the accused is entitled to seek an advance indication of sentence. The Court can refuse to give an indication with or without reasons. If they refuse, the Defence can request an indication again at a later stage. The indication is binding on the judge who has given it and any other judge who becomes responsible for the case. If the accused does not plead guilty, the indication will cease to have effect. Where appropriate, there must be an agreed, written basis of plea, otherwise the judge should refuse to give an indication |
