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  • 05 Criminal Offences, Penalties and Sentences
  • How does the court reach a sentencing decision?
  • Sentencing
  • Factors for consideration
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Factors for consideration

A quick look at mitigating and aggravating factors

Some mitigating factors

  • A plea of guilty; the earlier in the process the better
  • Cooperation with police / prosecution
  • Confession and/or coming forward
  • Remorse
  • Attempts at rehabilitation on the part of the defendant; reformed character
  • If a financial crime, attempts to restore the damage or loss

Some aggravating factors

  • Excessive force
  • Financial gain in non-financial offences (e.g. child pornography)
  • Abuse of trust
  • Attempting to prevent the complaint being heard
  • Persisted in offending despite police intervention
  • Racial motivation
  • Victim impact
  • Persistence in committing offences
  • Use of a weapon
  • Committing offences while on bail, particularly for similar offences

Aggravating Factors

When courts are considering a sentence they will often refer to aggravating factors. Aggravating factors depend on the type of crime, but a consistent aggravating factor is the harm to the victim. So, for example, if a person commits an armed robbery and they terrorise a bank teller who then suffers from posttraumatic stress disorder as a consequence of the offender’s behaviour, the court will take this into account as an aggravating factor. Conversely, if an armed robbery is carried out with a minimal amount of violence, it will be seen as an offence at the lower end of the range, and there will be less aggravating factors. Violence, particularly excessive violence, a breach of trust, the use of a position of power, harm to victims, premeditation, where the conduct occurred over a long period of time, and the extent of financial harm if the offence is a financial crime. Other factors to consider will be degree of participation, provocation, motive, and intention.

Mitigating Factors

Two key factors are mitigating: remorse and a guilty plea. Remorse must be genuine, and courts will sometimes discuss whether remorse is genuine. Courts will also discuss the point in time at which a person pleaded guilty. If an offender made early and full confessions and a plea of guilty, this is a substantially mitigatory factor. If an offender made pleas of guilty before the trial as a mere ‘acceptance of the inevitable’ this will have far less weight in mitigation than an early plea of guilty with genuine remorse. Cooperation with the authorities is also a factor in mitigation. One sex offence case only came to light because of the confession of the offender. This was taken as a factor in mitigation by the sentencing judge (see JTM, 9 December 2010). Other characteristics of the perpetrator that the court takes into account include youth, extreme age, ill health, remorse, awareness of wrongdoing, and cooperation with the police.

Page last updated 13/12/2017

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