News · Criminal law explainer
Plea bargains and charge negotiation in NSW.
The phrase plea bargain comes from American television, and it does not work quite the same way here. In New South Wales the equivalent is charge negotiation, and it resolves a great many matters. This note explains what can be negotiated, how it works, and why the court, not the prosecutor, still decides the sentence.
By Aaron Kernaghan · Published 3 September 2026
Charge negotiation, sometimes called a plea bargain, is where the defence and the prosecution agree to resolve a matter, usually by the accused pleading guilty to fewer or less serious charges, or on an agreed set of facts. In NSW the prosecution cannot promise a particular sentence: the court decides that. What can be agreed is the charges and the facts the court sentences on, which can make a large difference.
What is charge negotiation?
Charge negotiation is a discussion between the defence and the prosecution about how a matter can be resolved without a defended hearing. Typically it involves the accused agreeing to plead guilty in exchange for the prosecution withdrawing some charges, substituting a less serious charge, or agreeing on a set of facts.
It is a normal and proper part of the criminal process. Prosecutors have guidelines about when charges can be resolved this way, and the aim is a just outcome that reflects the real criminality without the cost and risk of a hearing.
What can be negotiated?
Three things are commonly negotiated: the charges, so that some are withdrawn or a lesser charge is substituted; the facts, so that the version the court sentences on is accurate and fair; and, in some matters, the level of the offence, such as a plea to a lower category of an offence. Each can significantly affect the sentence.
The agreed facts matter as much as the charge. A court sentences on the facts before it, so negotiating an accurate, fair set of facts is an important part of the work.
What cannot be negotiated?
The prosecution cannot promise a particular sentence, and cannot bind the court. Sentencing is entirely a matter for the court. A negotiation can improve the position by narrowing the charges and the facts, but the judge or magistrate still decides the penalty within the law.
This is the key difference from the television version. There is no deal that guarantees an outcome. What negotiation does is put the accused in the best realistic position before the court exercises its own discretion.
Why negotiate at all?
A good negotiation can remove the most serious charges, avoid a conviction on some matters, and produce a set of facts that supports a lighter sentence. Combined with the early plea discount, it can markedly change the outcome, while removing the risk and cost of a hearing.
It also gives certainty. A defended hearing is a risk for both sides, and a negotiated resolution replaces that risk with a known outcome on charge and facts.
How does it work in practice?
Negotiation usually happens through written representations and discussions after the defence has read the brief of evidence and identified the weaknesses. The stronger the analysis, the better the position from which to negotiate. Any agreement is then put before the court.
This is skilled work best done by an experienced lawyer who knows the prosecutors and the realistic range. Our notes on having charges withdrawn and how to plead cover the related steps.
Frequently asked.
What is a plea bargain in NSW?
It is usually called charge negotiation. The defence and prosecution agree to resolve a matter, often by the accused pleading guilty to fewer or less serious charges, or on an agreed set of facts.
Can the prosecutor promise me a sentence?
No. The prosecution cannot promise a particular sentence or bind the court. Sentencing is entirely a matter for the court. Negotiation can improve the charges and facts, but the judge or magistrate decides the penalty.
What can be negotiated?
The charges, so some are withdrawn or a lesser charge is substituted; the facts the court sentences on; and, in some matters, the level of the offence. Each can significantly affect the sentence.
Why would I negotiate instead of fighting?
A good negotiation can remove the most serious charges and produce facts that support a lighter sentence, and it removes the risk and cost of a hearing while giving certainty. It combines with the early plea discount.
When does charge negotiation happen?
Usually after the defence has read the brief of evidence and identified the weaknesses, through written representations and discussions. Any agreement is then put before the court.
To speak to a criminal defence lawyer, call Aaron Kernaghan on 0421 717 019.
This article is written by Aaron Kernaghan, criminal defence lawyer at Good Legal Lawyers, as at 3 September 2026. It is commentary and reflects the personal opinion of the author only. It is not legal advice, it is not a substitute for advice on your own matter, and it does not purport to be accurate or complete. Any matter referred to may be before the court and any person charged is presumed innocent. For advice on a specific matter, contact Aaron Kernaghan on 0421 717 019 or contact the firm.
More criminal-law commentary by Aaron Kernaghan.
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