Plea in Mitigation An Overview

This paper addresses the considerations of advocating following a plea of guilty. The aim of this paper is to explore ethical and professional obligations in presenting a plea in mitigation to the Court. It covers:

• Key considerations in advocating in a plea in mitigations.
• The ethical obligations and duty of care as an advocate in criminal proceedings.

Introduction

From a court’s perspective, a plea in mitigation is a crucially important aspect of the sentencing hearing. It is trite, but the role of defence counsel is to get the least punitive measure available. It is the responsibility of solicitors and counsel, not of the Court, to ensure that all necessary submissions and evidence in mitigation of penalty are placed before the Court. (Banfield v Tasmania [2024] TASCCA 1).

A judge or magistrate must make his or her decision strictly and exclusively upon material placed before them in open court. Additionally, the sentence imposed by a judge or magistrate must be one that is proportionate to the seriousness of the offence and the culpability of the offender. It is therefore fundamentally important that submissions/material that addresses these matters is put before the Court. It is the role of counsel to not simply be a mouthpiece for the client.

The points covered in this paper are a guide to address your mind to certain points. You will not need to address all these points in each plea. In some cases, you will not need to address many of these points. But you must assess for yourself whether each point has relevance in your case.

Make your plea, wherever possible, an engaging narrative, constructive, balanced, and something that lets the Court write down a pathway to what you want and, above all, being persuasive in achieving the proper sentence.

After Instructions/or Advice To Plead Guilty are Given

A plea of guilty is a solemn confession of the ingredients of the crime and an admission of all the facts essential to the offence (Marlow v R (1990) TasR 1 @ [35]). A finding of guilt is, likewise, a finding that the elements of the offence have been made out, not the particulars. Make sure you have carefully considered the facts to be relied on by prosecution. Any conduct referred to in the facts which may amount to another offence for which the offender was not charged should not be before the Court. The Court should not have regard to those matters in any event, but it would be better if they are not before the Court in this first place.

Consider: Are there any disputes on the facts to be asserted? Identify any disputes: Are they material? Is there an explanation for different versions? What evidence is there in support of alternative versions? Does the statement of facts fairly relate to aggravating and mitigating factors?

This is important because if adverse facts sought to be put before the Court by prosecution are challenged by defence, a disputed facts hearing may be required. A challenge to prosecution facts must be considered and determined by the judge or magistrate after hearing sworn evidence. Prosecution, based upon that sworn evidence, must establish that matter beyond reasonable doubt before the Court may take the disputed matter into account. Another important factor is to have careful recourse to the findings of fact made by the Court if the sentencing hearing follows a finding of guilt rather than a guilty plea.

There may be findings of fact made which may not be consistent with your instructions. Quite often, findings of fact are made which place the offending in a context which may give rise to mitigating or aggravating features for sentencing purposes.

Preparation For Sentencing Hearing

The preparation for the sentencing hearing is of upmost importance. Take instructions, rather than being told things by your client, that include the following (where applicable):

Personal circumstances

• Age, marital status and dependents, residence, employment status and history, and family history, if relevant -“.. the circumstance that an offender has been raised in a community surrounded by alcohol abuse and violence may mitigate the sentence because his or her moral culpability is likely to be less in the culpability of an offender his formative years have not been marred in that way”. Bugmy“… The effects of profound childhood deprivation did not diminish the passage of time and remain relevant notwithstanding that the person has a long history of offending…” Banfield

  “Lifelong damage that is the result of childhood exposure to violence, abuse, or neglect may elevate the weight to be given to rehabilitation is a sentencing consideration. See Bergman v the Queen [2021] VSCA 148 at [100]” at [8] in Banfield.

• Prior criminal history.
• Impact of potential penalty on client and others.
• Suitability for community service, capacity to pay fines, need for supervision (where appropriate).

Response To Charge

• Was it an early plea of guilty? Were there admissions, is there evidence of remorse (do not make the bold assertion unless there is evidence of it)? Was there cooperation? What was Response to offending – an apology or booked into course?
• Consider rehabilitation undertaken relevant to the offending, details of programs, independent evidence of engagement, motivation, completion or partial completion. Note – Banfield – Justice Jago – “… The sentencing judge was told nothing about the extent of any rehabilitation program she had undertaken. He was given no information, for example, as to whether she had attended regularly, the extent of her engagement, or the effectiveness of the program for the appellant. Given the appellants long history of drug addiction, and the obvious inference that earlier sentencing orders had failed to deter or rehabilitate the appellant, more cogent material was required if the sentencing judge was to properly give rehabilitation greater prominence in the sentencing exercise.”

Subjective Matters

Explanation for offending; disinhibited by alcohol (is this mitigating or make it worse), provocation, personal use (drugs), opportunistic/spur of the moment, voluntarily ceased the conduct, assistance to police, personal crisis, out of character etc. Basis of criminal responsibility/moral culpability – if you are seeking to rely on impaired mental functioning as a relevant sentencing consideration carefully consider R v Verdins [2007] VSCA 102.

Mental Impairment could:

Reduce the offender’s moral culpability (but not their legal responsibility) for the offence. This could affect the weight given to just punishment and denunciation as purposes of sentencing the offender.

1. Influence the type of sentence that could be imposed and the conditions in which the sentence could be served.
2. Reduce the weight given to deterrence as a purpose of sentencing. This would depend on the nature and severity of the mental impairment and how this impairment affected the mental capacity of the offender at the time of their offending and at the time of sentencing.
3. Increase the hardship experienced by an offender in prison if they suffered from mental impairment at the time of sentencing.
4. Justify a less severe sentence where there was a serious risk that imprisonment could have a significant adverse effect on the offender’s mental health. Sentencing Advisory Council (Victoria).

You should obtain the necessary expert opinion regarding the extent of the impairment and what flows from it.

Aims of Sentencing

What factors are at play? What is focus?

• Retribution/punishment/denunciation – serious offending – where culpability of the offender is high as – serious violence, family violence, offending against young victims, sexual violence.
• General Deterrence – to deter others from so offending – less relevant where an offender suffers from a mental disorder or severe intellectual disability.
• Specific Deterrence – to dissuade the individual offender from repeating the offending.
• Rehabilitation – prevention or reduction in future offending or reforming the offender – Rehabilitation efforts. Note the particular focus on rehabilitation with respect to young offenders (generally until an offender is 21) when dealing with Youths – see objectives in the section 4 of the Youth Justice Act 1997
• Proportionality – sentence imposed is proportional to the gravity of the offending for which the defendant is been sentenced.
• Totality – principle of totality operates to ensure the sentence reflects the overall criminality of the offending behaviour, rather than strictly adhering to the imposition of the penalty for each offence.

Make a habit of browsing through Sentencing in Tasmania (second edition), Warner, and the Criminal Code Act 1924 to get comfortable and familiar with the proper use of sentencing law terminology.

Obtain Collateral Information

• Psychiatric or psychological reports;
• Medical reports;
• Counselling or courses reports;
• References – character and work history. It should be apparent on the face of the reference that the referee is aware of the crimes and that the reference is for Court purposes. A glowing reference from an independent person of good character is worth many from close friends and family (Fama v Tasmania [2015] TASCCA 27).
• Obtain any victim impact statement or pre-sentence reports and take instructions from client.
• Consider whether you need a Pre-Sentence Report (PSR) – will it assist?
• How are they going on any current order or any past order? Talk to Community Corrections.
• Time in custody – contact the Tasmania Prison Service. Have the days and date to backdate to.
• What have they done in custody?

What Is Your Realistic Destination?

After considering all of the above, what is it you want or are aiming for?

The aim is to get best result open to the Court; Clearly say in simple language what they should get at the end and have pathway to why it is appropriate or supported. If you are aiming for no conviction or home detention or fine prepare with that in mind but be realistic. You need to be realistic as the consequence of indicating an unrealistic outcome reflects poorly in general, and perhaps poorly on your client’s understanding of the seriousness of their conduct.

• If you are asking the Court to consider that no conviction be recorded, be prepared to address those matters identified in section 9 of the Sentencing Act:9. Conviction or non-conviction
  – In exercising its discretion whether or not to record a conviction, a court must have regard to all the circumstances of the case including –
  – the nature and circumstances of the offence; and
  – the offender’s antecedents and character; and
  – the impact that a conviction would have on the offender’s economic or social wellbeing or employment prospects.
• Familiarise yourself with section 7 of the Sentencing Act, or the specific penalty provided for with respect to the offence/crime before the Court (if there is one) in case you are asked by the judge or magistrate to make submissions regarding a different penalty than that which you have submitted may be appropriate the circumstances.
• You should consider section 80 of the Sentencing Act. Prosecution can draw to the attention of the Court any aggravating circumstances and can comment on the appropriateness of sentencing options and recommend the Court impose one of those options. You should therefore be in a position to address/respond to those in your plea in mitigation.
• Be familiar with your client’s prior convictions, particularly those that are relevant to sentence. If you do not want undue weight to be given to what appears to be a relevant prior you may want to give the Court some detail about the offending.

Based upon your instructions and the defendant’s prior convictions consider whether a submission should be made to the Court that a Pre-Sentence Report should be obtained. If you consider your client may be facing a custodial sentence, consider asking that a home detention assessment be undertaken. If, having regard to your instructions, the nature of the offending, and the prior matters suggesting a relationship between drug use and offending, and if a custodial sentence is likely, consider submitting that a drug treatment order assessment would be appropriate.

Presenting A Plea In Mitigation

• On the day, have your own style and do not copy. Develop a structure that works for you. But if you hear someone using a line in a plea in mitigation that you like copy that mercilessly (if it went down well with the bench).
• A plea in mitigation is your responsibility and it is not one that should be sought to be given to Community Corrections. Do not rely on a PSR to do your work.
• You should be familiar, however, with the contents of the Pre-Sentence Report. You should ensure that there is nothing in the Pre-Sentence Report that is inconsistent with what is put in mitigation. If there are inconsistencies between your instructions and the contents of the PSR they should be addressed or explained.
• Speak clearly and to the bench. It is not engaging watching someone look at a phone or computer.
• Be mindful of the use of the phrases such as ‘my instructions’, or ‘the defendant’.
• If you have material to tender during your plea in mitigation provide these to the prosecution beforehand and highlight portions you rely on to the Court after allowing it to be read.
• You may consider a structure that includes the following:

1. Introduction – (this depends on your audience /experience). Either signal the result that you are aiming for, and in the plea enumerate the reasons why – i.e., “Fall short of actual imprisonment”. Or consider weaving your aim into your plea.
2. Provide a background of the accused/defendant – humanise your client – and aim is to set scene to help the Court understand motivations and so on. Relevant information includes:
   – Age
   – Family background
   – Educational history
   – Work history
   – Relationships
   – Dependants
   – Health issues (including mental health)
   – Substance abuse issues
   – Financial details (if a fine is penalty sought or realistically open)

• The offence itself

1. Provide an explanation for the offences or say nothing.
2. Provide a response to the offence.
3. Consider whether the offence is out of character by reference to prior matters and your client’s background generally.

• What has happened since the offence

1. Mention rehabilitation efforts and/or counselling, medical/psychological interventions.
2. Indicate reparation efforts (where applicable).
3. Provide a future focus, i.e. point to matters that can help assure Court that there will not be repeat of the conduct.

• Summary (consider whether you need to, or would it diminish early points)

1. Briefly summarise the key mitigating factors and why the outcome being advocated for your client are appropriate.
2. Refer to relevant law and sentencing precedents where necessary to justify the approach being sought.

Do not make a plea in aggravation – Think carefully about what you say.

Additional matters to consider for inclusion as part of the sentencing hearing
Sentencing hearings can often include consideration and determinations by magistrates or judges with respect to –

• A prosecution application to breach a suspended sentence previously imposed by the Court.
• An application to breach a corrections order previously imposed by the Court.

With respect to an application to breach a suspended sentence you need to carefully consider section 27 of the Sentencing Act. If the defendant has breached a condition of order suspending a sentence of imprisonment, the judge or magistrate must activate the suspended sentence unless it is the opinion of the Court that to do so would be unjust.

If there is a breach application before the Court, you should be in a position to advice the Court whether:

• Cause is shown with respect to the breach.
• The defence position is that it would be unjust to activate the suspended sentence. If the defence position is that it would be unjust, detailed submissions should be made to the Court having regard to those factors identified by Justice Wood in Tanner v Brown [2011] TASSC 59, and Justice Pearce in Cannell v Hughes [2014] TASSC 41.

Submissions should be included on what defence counsel asserts would be the appropriate way for the matter to be dealt with by the Court if it is found that it would be unjust to activate the suspended sentence. See section 27 (4C) of the Sentencing Act.

If there is a community corrections order breach application raised at the sentencing hearing, you should be in a position to address the Court with respect to that application having regard to section 36 of the Sentencing Act, and in particular section 36 (6).

The Honorable Justice Tamara Jago
Supreme Court of Tasmania

Magistrate Jackie Hartnett and Magistrate Marica Duvnjak
Magistrates Court of Tasmania