Mitigating Plea

In the last article we entered a plea of guilty to the Magistrate, the facts have been handed up along with your criminal record, and the Magistrate is now asking for your submissions on sentence.

This is when a lawyer earns his pay. A mitigating plea can make a substantial difference to the penalty handed down by the Magistrate.

The role of the lawyer is to cover all the relevant factors in a plea in mitigation.

At this time, references can be handed up to the Magistrate. Ideally, the reference will be from someone who has known you for a long time, has some standing in the community, is aware of your charges, can say that your actions are “out of character”, and has put all that together on a single page, in an easy to read document.

How much weight is put on the reference varies between Courts. As a Judge recently said, “I haven’t had a bad reference handed up yet”.

It is not common that oral evidence be called in Local Court, therefore evidence might be tendered by way of letter, an affidavit or statutory declaration.

The plea from your lawyer has to cover two main areas.

Practice will definitely vary between lawyers, but one way of structuring the plea is to discuss the offence first and then talk of the offender second.

In relation to the offence, your lawyer may discuss the seriousness, or hopefully lack of. The amount of planning beforehand, your state of mind, the role you played in the offence, your motivation and the harm caused to a victim or the community (or both) by your actions.

In relation to your personal characteristics, your lawyer may discuss your age, schooling, employment, upbringing, drug or alcohol addiction, health, early guilty plea and any evidence of remorse shown by you so as to put you in the best possible light.

The impact of a sentence on third parties, such as friends and family, and your future prospects are sometimes also put forward to the Magistrate as mitigating factors.

Then it is time for you to stand up and face the music.

The Magistrate determines a sentence after he or she takes all relevant matters into account.

Hopefully, you walk out the front door, but sometimes, you are led down the “tunnel of love” that links the Court to the cells.

Next article we will rewind back a few stages, and consider what happens if you plead not guilty to the charges, and we will start looking at the process of a defended hearing or trial.

If you have any questions you would like answered either confidentially or via this medium, please email us at office@mjolegal.com.au

This is intended for general information and does not constitute legal advice and should not be relied upon as such. Formal legal advice should be sought.

On February 16th, 2011, posted in: Know the Law by
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