How can you possibly reduce a criminal sentence?
Want to know more about the criminal law process? Did you know that a convicted person can have a lawyer make submissions on that person’s behalf to try to obtain the minimum sentence possible in the circumstances? Read on to discover how the process of a plea in mitigation can help to reduce a sentence.
If a person pleads guilty in a criminal matter or is found guilty after a trial has occurred, an oral address can be made to the Court in an endeavour, ultimately to assist the Court in sentencing the offender and to ensure that the offender receives the minimum sentence possible. The representations can be made by a lawyer or by the offender in person and are called a plea in mitigation.
If the representations are made by a lawyer they can be presented in an experienced, unemotional and persuasive manner and we believe offer the offender the best chance of receiving a minimal sentence.
WHAT DOES PLEADING GUILTY MEAN?
If a person pleads guilty to a criminal offence (sometimes known as a charge) it means that the person accepts that he or she committed the offence and accepts the facts as alleged by the police or other prosecuting body.
The offence is contained in the prosecution notice. The prosecution facts are contained in a document called the “statement of material facts”. Anyone should always check what is in this statement before deciding to enter a plea of guilty to be sure that the alleged offender agrees with the prosecution’s version of what happened.
If an alleged offender does not agree with the facts in the statement, he or she should seek legal advice before entering any plea, be it guilty or not guilty. It is prudent to make contact with your lawyer ahead of the court date so your lawyer can make arrangements to attend Court and to see the prosecution’s papers.
THE VALUE OF A LAWYER AT COURT
If the elements of the offence are made out, and this is checked from the facts sheet, then a determination should be made by the lawyer as to whether the alleged offender actually agrees with the version of the facts that are set out in the statement of material facts.
Depending on how the alleged offender decides to plead the matter will either proceed to a trial or will be listed for sentencing. It is at the sentencing hearing (either following the entering of the plea of guilty or after the offender is found guilty after a trial) that the plea in mitigation can be given.
WHAT IS A PLEA IN MITIGATION?
Before the Court passes sentence, you or your lawyer will be given an opportunity to speak. This is called presenting a plea in mitigation.
The plea in mitigation is made to the Court after the prosecution has outlined the facts of the offence, provided the court with the offender’s criminal record (if any) and allowed for victim impact statements to be delivered to the Court.
The objective of the plea in mitigation is to persuade the Court to provide the most lenient possible sentence it can be reasonably expected to give for that offence.
Matters that should be covered by your lawyer in a well-crafted plea in mitigation include, but are not limited to:
- Reference to the likely range of the sentence, and what is known as the “starting point sentence” – ie the average sentence for the offence committed.
- The circumstances of the offence, stressing in particular any mitigating factors, such as threats.
- The offender’s age.
- The offender’s state of health, particularly if the offender is suffering from any mental illness that may have contributed to the circumstances of the offence, whether the offender is suffering from any long-term illnesses that may impact his or her ability to sustain a custodial sentence, and if there have been allegations that the offender is a drug addict or alcoholic what treatment has been undertaken since the offence, and how a sentence may be able to assist the offender to obtain the treatment that they may need to continue.
- Whether the offender has co-operated with police and or the prosecution, and particularly if a guilty plea was entered at an early stage.
- Whether the offender has demonstrated any remorse.
- If the offence has involved damage to or stealing or goods, whether any restitution has been made.
- The character of the offender, particularly if the offence is a first offence.
- The domestic circumstances of the offender.
Submissions can also be made about the sentence that the Court could impose. For example, if the Court is considering a fine, it would be useful for it to know that the offender is not working and will have difficulty paying a fine. The Court can then consider giving a community work order instead.
CHARACTER REFERENCES
These can be over-rated but in essence, it is better to have them than not to.
Again, with the assistance of a good lawyer, well-written character references can have a persuasive influence on the Court.
Factors to consider when looking at character references include the following:
- The standing of the referee within the community.
- Any reference should, among other things:
- consider the nature of the offence, that is acknowledge the office in the reference;
- be addressed to “the Presiding Magistrate” (or Judge as it may be);
- clearly acknowledge the referee’s specific awareness of all off the charges;
- express how long the referee has known the offender;
- express how the referee came to know the offender (ie social, work, academic setting);
- express positivity in relation to the offender’s character.
SUMMARY
If you know someone who has been charged with an offence it is wise for them to contact an experienced lawyer as early as possible to help that person through the process so that they are assured of the best possible outcome. No-one would want to appear in Court to find that representation might have assisted or that a guilty plea was accepted in circumstances where it ought not have been.
If you know someone who needs this sort of legal assistance have them contact us to give them the best chance possible.
About the authors:
This article has been co-authored by Peter Heazlewood of Lift Legal and Jacqueline Brown who is a director at Lynn & Brown Lawyers. Jacqui has over 19 years’ experience in legal practice and practices in family law, mediation and estate planning. Jacqui is also a Nationally Accredited Mediator and a Notary Public.
