16. Prepare for a plea in mitigation

Explain the sentencing procedure to client

After a defendant has pleaded guilty, or if a charge is proved following a hearing, the magistrate will have to decide what sentence to impose. All defendants are given the opportunity to say something about the sentence that the magistrate should impose, and to tell the magistrate about their background and personal circumstances. This is called "presenting a plea in mitigation".

·      Plea: that which is alleged, urged or pleaded in defence or justification^[1]

·      Mitigation: a reduction or attempt to secure a reduction in damages or punishment^[2]

It is necessary to explain what the likely outcomes will be if the client pleads guilty or not guilty. This is clearly dependent on the facts of the matter.

The plea in mitigation is one of the most common occurrences in the criminal justice system.^[3]

It is important to note that the legislation that guides sentencing is the Crimes (Sentencing and Procedure) Act 1999 (NSW). Section 21A of the Act sets out the aggravating and mitigating factors of the matter which help to determine the sentencing outcome. Additionally section 22 states that a guilty plea is to be taken into account in sentencing; a person who pleads guilty as opposed to not-guilty, will be rewarded with anywhere up to a 25% reduction on their ultimate sentence. Moreover, the various divisions of the Act give specific guidance on aspects of sentencing: Custodial sentences (Division 2), Non-Custodial sentences (Division 3) and Fines (Division 4).

Some of the things that may be raised in a Plea in Mitigation include:

·       An explanation of the facts and circumstances of the offence

·       Whether anyone else participated in the offence

·       The age, criminal record and personal background of the defendant

·       The work history and current employment situation of the defendant

·       The obligations of the defendant to support a family or other people

·       The defendant's health now or at the time of the offence (if it is relevant)

·       Whether drugs or alcohol influenced the offence, in some cases the prospect of rehabilitation or engagement with counselling services

·       Whether the defendant cooperated with the police when he or she was arrested, and whether or not the defendant pleaded guilty straight away and

·       Whether the defendant is sorry about what happened (i.e. any remorse shown by the offender for their actions).^[4]

 

Assist the practitioner to explain the range of possible penalties and/or sentences to client

In the justice system, there is a range of penalties available to a defendant, varying in severity. Although generally each crime has a maximum penalty allocated to it, this can be increased if there is aggravating circumstances. The final penalty will be dependent on a number of factors:

·       The seriousness of the crime

·       The effect on the victim

·       The offender’s circumstances

·       The offender’s criminal history

·       Whether the offender has cooperated with police.

Options could include monetary fines of various amounts, bonds or even imprisonment.

Obtain comparative sentencing results and communicate these to client as required

You can help the client to prepare for what may happen in court by explaining outcomes that have happened in similar cases. You will help the client to grasp the potential outcome by sharing information about  a similar matter, with similar facts, a judge in the same court gave a penalty/sentence of X. This will assist them in deciding whether to plead guilty or not guilty.

In some matters, particularly where the offence is serious, or where the offence is infrequently dealt with in the local court it is worthwhile looking at, and if appropriate tendering, a copy of the Judicial Commission of NSW statistics. These statistics are useful for considering what the range of results are for certain offences, and where this matter might fall within the range. Where the pool of matters dealt with in the local court is large, then the statistics can be even more persuasive to a magistrate, in that the sentence they wish to impose may fall outside of the range reflected in the statistics.

Moreover, it is always useful to be aware of relevant case law that may touch upon the offence for sentence and provide some guiding principles on sentencing when dealing with a particular kind of offence. Examples of this are particularly guideline judgments such as Re Attorney General’s Application under s 37 Crimes (Sentencing Procedure) Act 1999[5] regarding high range drink driving offences, or R v Ponfield[6]regarding break, enter and steal offences.

(http://www.criminalcle.net.au/attachments/Sentencing_Advocacy_in_the_Local_Court.pdf )

An important principle that applies in sentencing offenders in criminal matters is called the parity principle.[7] This principle requires of consistency and equality before the law – the treatment of like cases alike, and different cases differently: Green v The Queen.[8]

 

Gather further information and instruction from client relevant to the plea

If any of the following points apply to the client, it may be of assistance if the practitioner includes them in the plea in mitigation. To do this, the client may need to provide specific documentation, such as health records, enrolment in a rehabilitation program, character references or client’s criminal record.

·      They have a good explanation for committing the offence

·      They were not involved in the offence as much as some others (you were not the "ring-leader")

·      It was a one-off mistake

·      They are young and inexperienced

·      They have no criminal record or if they have a record, it contains nothing similar to the present offence

·      They have support from family and friends which will help to ensure they don't get into trouble again

·      They have done, are doing, or will do, things to help themselves so they won't get into trouble again, for example no longer associate with certain people, do an anger management course, get debt management advice, or get treatment for alcohol or drug use problems

·      They co-operated with police

·      They have apologised to the victim of their offence

·      They are responsible for supporting their family or other people[9]

 

Assist the practitioner to prepare the plea for submission

To ensure effective case management, particularly in preparing pleas, it is very important that files are tidy and organised in a consistent way. It is imperative that any file notes are dated, and clearly identify the solicitor giving the advice and the para-legal assisting.

All file notes should include a brief summary of the legal problems and/or questions the client has, followed by detailed notes of the advice given and/or referrals made.

File notes must be dated and clearly identify the solicitor giving the advice and/or the para-legal assisting.

Gathering documents regarding any mitigating factors surrounding the matter would be necessary to assist in preparing the file note for the plea. This may include records from a treating psychiatrist, other, health record or documents outlining enrolment in a rehabilitation program.