Plea in Mitigation – Guilty Pleas

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Plea in Mitigation – Practical Matters

Christopher Taylor – Criminal Barrister

CHRISTOPHER TAYLOR
BARRISTER
Blackstone Chambers
Level 62
MLC Centre
19 Martin Place
SYDNEY NSW 2000
Ph 02 9220 9800
www.crimelaw.com.au

An outline of the Session

1. The session is most effective when broken into two. The two parts involve:

i) A “theory” session – where this paper is presented;

ii) A workshop style session where actual “Facts Sheets” and “Court Attendance Notices” are provided to the attendees. A short period is allowed for preparation, and then attendees present a basic “plea in mitigation” before the other attendees. Depending upon the group, attendees undertake the role of prosecutor and/or criminal defence counsel.

What is this paper about?

This paper touches upon some practical aspects of preparing for and appearing in Court on a “plea in mitigation”.

What is a plea in mitigation?

2.    When a person pleads “guilty” in a criminal matter, an oral address is made to the Court in an endeavour, ultimately to assist the Court in sentencing the offender (and to ensure your client receives the minimum sentence possible in the circumstances).

What information will I have before the Court appearance?

3.    Generally, you will have a “Court Attendance Notice” and a Facts Sheet. An example of each is annexed as documents 1 & 2 respectively.

4.    These documents essentially set out the prosecution case.

5.    The Court Attendance Notice will set out the Section of the Crimes Act (or other legislation) that forms the basis of the charge. LexisNexis’ “Criminal Practice and Procedure” will be invaluable in enabling the elements of the offence to be identified.

6.    If the elements of the offence are made out (from the facts sheet) a determination should be made as to whether your client actually agrees with the version of the facts that are set out in the Facts Sheet.

7.    If so, your instructions that your client wishes to plead guilty should be confirmed. Ideally, obtain written confirmation that your client wants to enter a plea of guilty. In advising your client the range of penalty should be considered.

8.    If your client does not agree with the facts it is possible to negotiate the facts with the prosecution (either prior to or at Court).This may result in a Facts Sheet having to be re-typed. It is not uncommon to simply mark out the offending text such the Judge /Magistrate can not read the text.

9.    Your client should not be put in the position where he or she is pleading guilty to an offence supported by a version of the facts that is not agreeable.

10. Further, only relevant material should be included in the Facts Sheet. All irrelevant material should be removed. So should any prejudicial, unsupported assertions, and inflammatory language.

11. Any material that may support a more serious charge should be removed (See De Simoni (1981) 147 CLR 383). The Court cannot take into account any matter of aggravation that could warrant a conviction for a more serious offence.

12. If there remains a dispute with the prosecution as to certain facts, but your client is still determined to plead guilty, a disputed facts hearing can be undertaken. The Court will then determine the facts by taking evidence and allowing cross examination the usual manner.

Other documents to obtain before the appearance

13. The criminal record of the offender should be obtained. Annexed as document 3 is an example of a criminal record. Particular consideration should be given to determining whether the offender was on bail, or was the subject of a bond (at the time of the offence the subject of the plea). You should not rely upon your client to tell you about their record.

What if there is a real risk my client will go to jail ?

14. If your client is a repeat offender, the legislation requires a mandatory custodial sentence, or the matter is serious the Court will generally require a pre-sentence report.

15. This is a report prepared by the probation and parole office, and set out, in particular, the suitability of alternatives to full time custody.

The procedure in court

16. After finding your court :
1. Call the matter on (there will generally be many matters in the list);
2. Announce your appearance;
3. Indicate to the court that your client is present in court (they might be motioned by you to stand briefly – then resume their seat behind you);
4. Tell the court your client will be pleading guilty, and if appropriate the estimated time the matter will take (generally not more than half an hour if in the Local Court);
5. The prosecutor will then tender the Facts Sheet, and “antecedents” (the criminal record);
6. You will express that you have seen such documents, and do not object to their tender (unless for some reason you do object);
7. The Magistrate will read the documents (while you are seated at the bar table);
8. You should then tender any documents upon which you seek to rely (“I tender two references”). This is simply done by passing them to the court officer. You should have provided the prosecutor the opportunity to review these prior to the matter proceeding. Ideally give them a copy;
9. If a PSR has been ordered, enquire as to whether a copy has made its way to the court file. If you need a PSR you should ask for it at this stage – which will result in an adjournment;
10. The Magistrate will read those further documents and then indicate when he or she is ready to hear your submissions on sentence;
11. You will then present your submissions;
12. The prosecution will not normally make extensive submissions in the Local Court;
13. The Magistrate will then give reasons on sentence.
What do I actually say ?

17. A Magistrate (or Judge) determines a sentence through a process of “instinctive synthesis.” In essence the Magistrate takes into account all the relevant matters that form the factual matrix. Once all of these factors are before the court the Magistrate will then exercise the judicial discretion in arriving at an appropriate sentence (See Wong v R [2001] HCA 64).

18. Your submission should address all the relevant matters that will assist your client in mitigating the sentence to be imposed.

19. Those matters are essentially set out in Section 21(3) of the Crimes (Sentencing Procedure) Act 1999 (NSW). That Section is extracted below :

Crimes (Sentencing Procedure) Act 1999 No 92

21A Aggravating, mitigating and other factors in sentencing
1. General
  In determining the appropriate sentence for an offence, the court is to take into account the following matters:
  1. the aggravating factors referred to in subsection (2) that are relevant and known to the court,
  2. the mitigating factors referred to in subsection (3) that are relevant and known to the court,
  3. any other objective or subjective factor that affects the relative seriousness of the offence.
The matters referred to in this subsection are in addition to any other matters that are required or permitted to be taken into account by the court under any Act or rule of law.
1. Aggravating factors
  The aggravating factors to be taken into account in determining the appropriate sentence for an offence are as follows:
  1. the victim was a police officer, emergency services worker, correctional officer, judicial officer, health worker, teacher, community worker, or other public official, exercising public or community functions and the offence arose because of the victim’s occupation or voluntary work,
  2. the offence involved the actual or threatened use of violence,
  3. the offence involved the actual or threatened use of a weapon,
  4. the offender has a record of previous convictions,
  5. the offence was committed in company,
  6. the offence involved gratuitous cruelty,
  7. the injury, emotional harm, loss or damage caused by the offence was substantial,
  8. the offence was motivated by hatred for or prejudice against a group of people to which the offender believed the victim belonged (such as people of a particular religion, racial or ethnic origin, language, sexual orientation or age, or having a particular disability),
  9. the offence was committed without regard for public safety,
  10. the offence was committed while the offender was on conditional liberty in relation to an offence or alleged offence,
  11. the offender abused a position of trust or authority in relation to the victim,
  12. the victim was vulnerable, for example, because the victim was very young or very old or had a disability, or because of the victim’s occupation (such as a taxi driver, bus driver or other public transport worker, bank teller or service station attendant),
  13. the offence involved multiple victims or a series of criminal acts,
  14. the offence was part of a planned or organised criminal activity.
The court is not to have additional regard to any such aggravating factor in sentencing if it is an element of the offence.
1. Mitigating factors
  The mitigating factors to be taken into account in determining the appropriate sentence for an offence are as follows:
  1. the injury, emotional harm, loss or damage caused by the offence was not substantial,
  2. the offence was not part of a planned or organised criminal activity,
  3. the offender was provoked by the victim,
  4. the offender was acting under duress,
  5. the offender does not have any record (or any significant record) of previous convictions,
  6. the offender was a person of good character,
  7. the offender is unlikely to re-offend,
  8. the offender has good prospects of rehabilitation, whether by reason of the offender’s age or otherwise,
  9. the offender has shown remorse for the offence by making reparation for any injury, loss or damage or in any other manner,
  10. the offender was not fully aware of the consequences of his or her actions because of the offender’s age or any disability,
  11. a plea of guilty by the offender (as provided by section 22),
  12. the degree of pre-trial disclosure by the defence (as provided by section 22A),
  13. assistance by the offender to law enforcement authorities (as provided by section 23).
2. The court is not to have regard to any such aggravating or mitigating factor in sentencing if it would be contrary to any Act or rule of law to do so.
3. The fact that any such aggravating or mitigating factor is relevant and known to the court does not require the court to increase or reduce the sentence for the offence.
20. Your submissions should be developed around the mitigating factors.

21. There are a number of additional factors that might be referred to as “objective factors”. These should be considered in preparing a plea, and include :
1. the seriousness of the offence;
2. the circumstances of the offence (placing reliance upon the Facts Sheet) and your instructions (if significant by way of affidavit);
3. The penalty;
4. The prevalence of the offence and need for deterrence;
5. Any aggravating factors (including being on bail or subject to a bond);
6. Sentencing principles.
22. Consideration should also be given to “subjective features” such as the following to determine whether they need to be addressed in your submissions :
1. Age;
2. Remorse and/or restitution;
3. Relevance of drugs/alcohol/gambling to the offences;
4. Education;
5. Employment;
6. Background;
7. Criminal History;
8. Prospects of rehabilitation;
9. Likelihood of recurrence (what has changed);
10. Any time spent in custody for the offence.
Does the plea of guilty help the offender ?

23. The plea of guilty must be taken into account in sentencing (Section 22 of the Act; R v Thomson (2000) 49 NSWLR 383).

24. An early plea will result in a “discount” of the sentence.

25. A guideline judgment on pleas of guilty has fallen from the Court (See R v Houlton 49 NSWLR 383).

26. A plea of guilty may attract a discount on sentence in two respects :
1. the utilitarian aspect, which means that victims do not have to give evidence, and the time and expense of a defended hearing has been avoided. The strength of the crown case is not taken into account in evaluating the extent of the discount for the plea of guilty;
2. the plea of guilty may be evidence of your client’s contrition or remorse for committing the offence. If this is the case, your client will be entitled to an additional discount, over and above the discount for the utilitarian aspect of the plea.
Contrition

27. This is a significant factor with respect to the exercise of discretion. If the offender is of the mind that for example he wishes he had “smashed the bloke another time – but they broke up the fight” needless to say it will be difficult for any reduction in sentence to apply.

28. If though for example in a property damage matter the offender has of his own accord pad for any such damage, this will stand him well.

29. You should ask your client how he or she feels about the situation. Hopefully they will say something like “Oh …I am so embarrassed …and I wish it never happened.” If so you might literally say to the court “I have asked my client how he feels about the situation and he said ‘I am so embarrassed …and I wish it never happened’.”

A bit of flare

30. Don’t be afraid to exercise some of that artistic flare that comes with advocacy. Open your submission with impact. For example, on a drink driving plea you might say “Your Honour, Miss Carrington’s circumstances are for her and her family truly tragic. She is 28 years old, she is an alcoholic, and has been an alcoholic for 6 years.”

Do References help?

31. In essence, it is better to have them than not.

32. I have had a Magistrate say to me when tendering references “Mr Taylor, have you ever tendered a reference that doesn’t say glowing things about the offender ?”

33. Nevertheless, consider the following matters in relation to references :
1. try to have the referee be a person of good standing within the community;
2. consider the nature of the offence – in relation to child sexual offences it is not uncommon for the offender to be of otherwise outstanding character;
3. consideration should be given to the disadvantage of asking that Magistrate friend of the family to provide a reference, given the impact such a request may have upon that relationship. Often an offender will simply be so embarrassed they would rather not call in on favours in obtaining references (and go without);
4. any reference should :
1. be addressed to “the Presiding Magistrate” (or Judge as it may be);
2. clearly acknowledge the referee’s specific awareness of all off the charges;
3. express how long the referee has known the offender;
4. express how the referee came to know the offender (ie social, work, academic setting);
5. express positivity in relation to the offender’s character.
Should I propose a sentence or penalty?

34. Unless you are sure about the range of sentence that would be appropriate, don’t proffer a sentence. The Magistrate will no doubt have in mind where the matter sits within his or her personal scale. Unless you have appeared extensively before that Magistrate on similar matters, you may actually do your client a disservice.

35. It is usual to remain silent on a proposed sentence when appearing on minor matters.

36. If you are for example hoping for the matter to be dealt with by a category of sentence (such as a Section 10 bond) – then by all means express this to the Magistrate.

What are the purposes of sentencing?

37. The purposes of sentencing are set out in Section 3A of the Act. They are :
1. to ensure that the offender is adequately punished for the offence;
2. to prevent crime by deterring the offender and others from committing similar offences;
3. to protect the community from the offender;
4. to promote the rehabilitation of the offender;
5. to make the offender accountable for his or her actions;
6. to denounce the conduct of the offender;
7. to recognise the harm done to the victim of the crime and the community.
38. These purposes should be considered when preparing a plea.

Sentencing Options

39. Reference should be made to the Crimes (sentencing Procedure) Act 1999.

40. Basically a sentence can be :
1. non custodial; or
2. custodial.
41. The non custodial options include :
1. a dismissal and conditional discharge (Section 10);
2. a fine (Section 13);
3. a Bond (Section 9);
4. a deferred sentence (Section 11);
5. a community service order (Section 8).
42. The custodial options include :
1. a suspended sentence (Section 12);
2. Periodic detention (Section 6);
3. Full time imprisonment (Section 5);
4. Home Detention (Section 7).
Dismissal and Conditional Discharge

43. The court may find a person guilty but dismiss the charge on condition that the person enter into a good behaviour bond of up to 2 years. This provision was once fondly known as s. 556A. A fine or community service order cannot be combined with a dismissal or conditional discharge: s. 13 and 14 Crimes (Sentencing Procedure) Act.

44. In determining whether or not to make an order under s. 10. the court is required to have regard to:

a.    the person’s character, antecedents, age, health and mental condition;
(b) the trivial nature of the offence;

b.    the extenuating circumstances in which the offence was committed;

c.    any other matter that the court thinks proper to consider.

45. This list is not exhaustive.

46. If the offence is not trivial, is does not necessarily follow that s. 10 cannot be applied: Paris [2001] NSWCCA 83, but see Piccin (No 2) [2001] NSWCCA 323.

47. The fact that the defendant could not have done anything prevent the offence (for example in a crime of strict liability) is a relevant matter: Thornloe v Filipowski [2001] NSWCCA 213.

Fines

48. In working out the fines, it is important to bear in mind that the term ‘penalty unit’ is currently defined as being $110: s. 17 Crimes (Sentencing Procedure) Act.

49. A court imposing a fine is obliged to take into account the means of the offender: s. 6 Fines Act. A court should not impose a fine which a person cannot pay: Rahme (1989) 43 A Crim R 81. The amount of the fine is relevant to the sentence imposed: Tapper (1992) 64 A Crim R 201.

Bonds

50. A good behaviour bond is not to exceed 5 years: s. 9 Crimes (Sentencing Procedure) Act. A bond can generally be imposed with a fine for the same offence ( s. 14 Crimes (Sentencing Procedure) Act ) but not a community service order: s. 13 Crimes (Sentencing Procedure) Act.

51. The conditions of a bond must be certain and not be unduly harsh, unreasonable, or needlessly onerous. Thus a condition of a bond that an Aboriginal man whose family lived in Wilcannia, not enter Wilcannia, without permission from the sentencing judge, was overturned by the NSW CCA: Bugmy [2004] NSWCCA 258.

52. In the Children’s Court a bond is not to exceed 2 years (s. 33(1) (b) Children (Criminal Proceedings) Act). In the Children’s Court a bond can be combined with a fine.

Deferred Sentence (Griffiths Remand)

53. A court may defer passing sentence for a period of up to 12 months from the date of conviction to allow the offender to be assessed for rehabilitation, or to demonstrate that rehabilitation has taken place, or for any other purpose: s. 11 Crimes (Sentencing Procedure) Act, s. 33(1) (b) Children(Criminal Proceedings) Act. This corresponds to what used to be referred to as a ‘Griffiths remand’: Griffiths (1977) 137 CLR 293.

54. The statutory ‘Griffiths remand’ is not restricted to cases where a non-custodial sentence is contemplated (which was the position at common law); it can be ordered in a case where a remand would be of assistance to the court in determining the non-parole period: Trindall (2002) 133 A Crim R 119, Williams [2004] NSWCCA 64. It should not be granted in a case where there are unresolved disputes of fact as to the objective seriousness of the offence: Palu (2002) 134 A Crim R 119 at para [38].

55. The Crown can appeal against a Griffiths type remand to the Court of Criminal Appeal: Trindall (2002) 133 A Crim R 119.

Community Service Orders

56. A court can impose a community service order of up to 500 hours (see s. 8 Crimes (Sentencing Procedure) Act). A community service order cannot be combined with a bond: s. 13 Crimes (Sentencing Procedure) Act.

57. In the Children’s Court, if the child is under 16, the maximum community service order is 100 hours. If the child is 16 or over, the maximum community service order is 250 hours, depending on the maximum penalty for the offence: s. 13 Children (Community Service Orders) Act.

Imprisonment Generally

58. Where a court determines that a full-time custodial sentence needs to be imposed, there should be a 3 stage process: Douar [2005] NSWCCA 455 at paras [69] to [72].

59. Firstly, the court has to determine that no punishment is appropriate other than a sentence of imprisonment: s. 5 Crimes (Sentencing Procedure) Act.

60. Secondly, if a court determines that a sentence of imprisonment must be imposed, the court must first determine the term of the sentence. That determination should be made without regard to the manner in which the sentence is to be served: Zamagias [2002] NSWCCA 17 at para [26].

61. Thirdly, the court must then consider whether any of the alternatives to full time imprisonment are available:
- home detention if the total sentence is under 18 month
- suspended sentence if the total sentence is under 2 years
- week-end detention if the total sentence is under 3 years
However if a sentencing judge does not expressly state that he/she has applied these two steps, it does not necessarily follow that an appellate court will intervene: Zamagias [2002] NSWCCA 17 at para [30].

Suspended Sentence

62.      A court that imposes a sentence of 2 years or less may make an order suspending the sentence on condition that the offender enters into a good behaviour bond for a period not exceeding the term of the sentence: s. 12 Crimes (Sentencing Procedure) Act. First the judge should determine whether a sentence of imprisonment should be imposed, then determine the length of the sentence, and then the judge should determine whether or not the sentence should be suspended: Dinsdale (2000) 202 CLR 321, [2000] 175 ALJR 1538, 115 A Crim R 558 at para [79], Foster [2001] NSWCCA 215 at para 30, Blackman and Walters [2001] NSWCCA 121.

63.      A suspended sentence is a heavier sentence than a non-custodial sentence (such as a bond), and as a result should not be imposed be imposed if a non-custodial sentence such as a bond is appropriate: JCE (2000) 120 A Crim R 18 at para [16].

64.      A suspended sentence is not akin to no punishment at all, it is a sentence of imprisonment: Elliot v Harris (1976) 13 SASR 516 at 527 (per Bray CJ), JCE (2000) 120 A Crim R 18 at para [15] and [24] -[25], Foster [2001] NSWCCA 215 at para 36. Generally speaking, if in the original sentence proceedings the Crown does not submit that a suspended sentence is inappropriate, the Crown will not be able to so argue successfully on appeal: R v Wilson (1981) 28 SASR 362 at 367-8, approved by the High Court in Everett v The Queen (1994) 181 CLR 295 at 302.

65.      A suspended sentence cannot be imposed if the offender is serving a sentence of imprisonment which is not suspended: s. 12(2). This will apply even to a period when the offender is on parole: Edigarov [2001] NSWCCA 436.

66.      Section 12 has been amended so that a sentence can only be wholly suspended, thus overruling Gamgee [2001] NSWCCA 251.

67.      Section 12 has also been amended so that it is no longer necessary for the judge imposing a suspended sentence to nominate a non-parole period (this is effected by the amended s. 12(3) which says that part 4 of the Act does not apply). This effectively overturns the situation where it was thought to be necessary to always ask a judge imposing a suspended sentence to set a non-parole period because on a breach of the suspended sentence there was no power to set a non-parole period. As to the previous situation see Tolley [2004] NSWCCA 165 and Wise [2006] NSWCCA 264 esp at para [14].

Periodic Detention

68.      Where a court has determined to sentence a person for a total sentence of less than 3 years, the court may order that the person serves the sentence by way of periodic detention: s. 6 Crimes (Sentencing Procedure) Act. Amendments to the Act now require the judge to undertake a two stage process, firstly determining the total sentence (including the non-parole period and additional term), and then determining if the sentence should be served by way of periodic detention: Wegener [1999] NSWCCA 405.

Home Detention

69.      Where a total sentence (that is minimum and additional term) of 18 months or less is imposed, an application can be made to serve the sentence by way of home detention: s. 7 Crimes (Sentencing Procedure) Act. Sentences for murder, attempted murder, manslaughter, sexual assault, armed robbery, firearms offences, assault occasioning actual bodily harm or stalking cannot be served this way: s. 76 Crimes (Sentencing Procedure) Act.

70.      A sentence of home detention cannot be imposed if the person has a record for any of the last mentioned offences, or has been convicted of a domestic violence offence or had an AVO made in the past 5 years where the victim lives at the intended address: s. 77 Crimes (Sentencing Procedure) Act.

71.      Home detention is to be regarded as a substantially less onerous sentence than gaol. The sentencing judge should first determine the appropriate total sentence of imprisonment. If the total sentence is 18 months, or less, the judge can then consider whether an order for home detention can be made: Jurisic (1998) 45 NSWLR 209, 101 A Crim R 259.

Some Practical tips

72.      In making your plea :
1. try not to get the Magistrate off-side;
2. be respectful to your opponent;
3. explain the procedure to your client;
4. explain the sentence to your client (and wait with them if they have to receive a bond);
5. don’t carry on – the Magistrate will invariably have a busy list with many pleas to deal with. Get to the point – quickly;
6. read the relevant legislation carefully;
7. make discreet, respectful enquiries of colleagues and/or the prosecutor in relation to the Magistrate (to determine their style and tendencies);
8. Consider the impact a criminal record will have upon your client (and thus the suitability of a Section 10 bond – without recording of conviction).

Plea in Mitigation – Practical Matters

Christopher Taylor – Criminal Barrister

CHRISTOPHER TAYLOR

BARRISTER

Blackstone Chambers

Level 62

MLC Centre

19 Martin Place

SYDNEY NSW 2000

Ph 02 9220 9800

www.crimelaw.com.au

Table of Contents

An outline of the Session. 5

What is this paper about?. 6

What is a plea in mitigation?. 6

What information will I have before the Court appearance?. 6

Other documents to obtain before the appearance. 7

What if there is a real risk my client will go to jail ?. 7

The procedure in court 7

What do I actually say ?. 8

Crimes (Sentencing Procedure) Act 1999 No 92. 10

21A Aggravating, mitigating and other factors in sentencing. 10

Does the plea of guilty help the offender ?. 13

Contrition. 14

A bit of flare. 14

Do References help ?. 14

Should I propose a sentence or penalty ?. 15

What are the purposes of sentencing ?. 15

Sentencing Options. 16

Dismissal and Conditional Discharge. 17

Fines. 17

Bonds. 18

Deferred Sentence (Griffiths Remand) 18

Community Service Orders. 19

Imprisonment Generally. 19

Suspended Sentence. 20

Periodic Detention. 21

Home Detention. 21

Some Practical tips. 22

An outline of the Session

1. The session is most effective when broken into two. The two parts involve:

i) A “theory” session – where this paper is presented;

What is this paper about?

This paper touches upon some practical aspects of preparing for and appearing in Court on a “plea in mitigation”.

What is a plea in mitigation?

2.    When a person pleads “guilty” in a criminal matter, an oral address is made to the Court in an endeavour, ultimately to assist the Court in sentencing the offender (and to ensure your client receives the minimum sentence possible in the circumstances).

What information will I have before the Court appearance?

3.    Generally, you will have a “Court Attendance Notice” and a Facts Sheet. An example of each is annexed as documents 1 & 2 respectively.

4.    These documents essentially set out the prosecution case.

5.    The Court Attendance Notice will set out the Section of the Crimes Act (or other legislation) that forms the basis of the charge. LexisNexis’ “Criminal Practice and Procedure” will be invaluable in enabling the elements of the offence to be identified.

6.    If the elements of the offence are made out (from the facts sheet) a determination should be made as to whether your client actually agrees with the version of the facts that are set out in the Facts Sheet.

7.    If so, your instructions that your client wishes to plead guilty should be confirmed. Ideally, obtain written confirmation that your client wants to enter a plea of guilty. In advising your client the range of penalty should be considered.

8.    If your client does not agree with the facts it is possible to negotiate the facts with the prosecution (either prior to or at Court).This may result in a Facts Sheet having to be re-typed. It is not uncommon to simply mark out the offending text such the Judge /Magistrate can not read the text.

9.    Your client should not be put in the position where he or she is pleading guilty to an offence supported by a version of the facts that is not agreeable.

10. Further, only relevant material should be included in the Facts Sheet. All irrelevant material should be removed. So should any prejudicial, unsupported assertions, and inflammatory language.

11. Any material that may support a more serious charge should be removed (See De Simoni (1981) 147 CLR 383). The Court cannot take into account any matter of aggravation that could warrant a conviction for a more serious offence.

12. If there remains a dispute with the prosecution as to certain facts, but your client is still determined to plead guilty, a disputed facts hearing can be undertaken. The Court will then determine the facts by taking evidence and allowing cross examination the usual manner.

Other documents to obtain before the appearance

13. The criminal record of the offender should be obtained. Annexed as document 3 is an example of a criminal record. Particular consideration should be given to determining whether the offender was on bail, or was the subject of a bond (at the time of the offence the subject of the plea). You should not rely upon your client to tell you about their record.

What if there is a real risk my client will go to jail ?

14. If your client is a repeat offender, the legislation requires a mandatory custodial sentence, or the matter is serious the Court will generally require a pre-sentence report.

15. This is a report prepared by the probation and parole office, and set out, in particular, the suitability of alternatives to full time custody.

The procedure in court

16. After finding your court :
1. Call the matter on (there will generally be many matters in the list);
2. Announce your appearance;
3. Indicate to the court that your client is present in court (they might be motioned by you to stand briefly – then resume their seat behind you);
4. Tell the court your client will be pleading guilty, and if appropriate the estimated time the matter will take (generally not more than half an hour if in the Local Court);
5. The prosecutor will then tender the Facts Sheet, and “antecedents” (the criminal record);
6. You will express that you have seen such documents, and do not object to their tender (unless for some reason you do object);
7. The Magistrate will read the documents (while you are seated at the bar table);
8. You should then tender any documents upon which you seek to rely (“I tender two references”). This is simply done by passing them to the court officer. You should have provided the prosecutor the opportunity to review these prior to the matter proceeding. Ideally give them a copy;
9. If a PSR has been ordered, enquire as to whether a copy has made its way to the court file. If you need a PSR you should ask for it at this stage – which will result in an adjournment;
10. The Magistrate will read those further documents and then indicate when he or she is ready to hear your submissions on sentence;
11. You will then present your submissions;
12. The prosecution will not normally make extensive submissions in the Local Court;
13. The Magistrate will then give reasons on sentence.
What do I actually say ?

17. A Magistrate (or Judge) determines a sentence through a process of “instinctive synthesis.” In essence the Magistrate takes into account all the relevant matters that form the factual matrix. Once all of these factors are before the court the Magistrate will then exercise the judicial discretion in arriving at an appropriate sentence (See Wong v R [2001] HCA 64).

18. Your submission should address all the relevant matters that will assist your client in mitigating the sentence to be imposed.

19. Those matters are essentially set out in Section 21(3) of the Crimes (Sentencing Procedure) Act 1999 (NSW). That Section is extracted below :

Crimes (Sentencing Procedure) Act 1999 No 92

21A Aggravating, mitigating and other factors in sentencing
1. General
  In determining the appropriate sentence for an offence, the court is to take into account the following matters:
  1. the aggravating factors referred to in subsection (2) that are relevant and known to the court,
  2. the mitigating factors referred to in subsection (3) that are relevant and known to the court,
  3. any other objective or subjective factor that affects the relative seriousness of the offence.
The matters referred to in this subsection are in addition to any other matters that are required or permitted to be taken into account by the court under any Act or rule of law.
1. Aggravating factors
  The aggravating factors to be taken into account in determining the appropriate sentence for an offence are as follows:
  1. the victim was a police officer, emergency services worker, correctional officer, judicial officer, health worker, teacher, community worker, or other public official, exercising public or community functions and the offence arose because of the victim’s occupation or voluntary work,
  2. the offence involved the actual or threatened use of violence,
  3. the offence involved the actual or threatened use of a weapon,
  4. the offender has a record of previous convictions,
  5. the offence was committed in company,
  6. the offence involved gratuitous cruelty,
  7. the injury, emotional harm, loss or damage caused by the offence was substantial,
  8. the offence was motivated by hatred for or prejudice against a group of people to which the offender believed the victim belonged (such as people of a particular religion, racial or ethnic origin, language, sexual orientation or age, or having a particular disability),
  9. the offence was committed without regard for public safety,
  10. the offence was committed while the offender was on conditional liberty in relation to an offence or alleged offence,
  11. the offender abused a position of trust or authority in relation to the victim,
  12. the victim was vulnerable, for example, because the victim was very young or very old or had a disability, or because of the victim’s occupation (such as a taxi driver, bus driver or other public transport worker, bank teller or service station attendant),
  13. the offence involved multiple victims or a series of criminal acts,
  14. the offence was part of a planned or organised criminal activity.
The court is not to have additional regard to any such aggravating factor in sentencing if it is an element of the offence.
1. Mitigating factors
  The mitigating factors to be taken into account in determining the appropriate sentence for an offence are as follows:
  1. the injury, emotional harm, loss or damage caused by the offence was not substantial,
  2. the offence was not part of a planned or organised criminal activity,
  3. the offender was provoked by the victim,
  4. the offender was acting under duress,
  5. the offender does not have any record (or any significant record) of previous convictions,
  6. the offender was a person of good character,
  7. the offender is unlikely to re-offend,
  8. the offender has good prospects of rehabilitation, whether by reason of the offender’s age or otherwise,
  9. the offender has shown remorse for the offence by making reparation for any injury, loss or damage or in any other manner,
  10. the offender was not fully aware of the consequences of his or her actions because of the offender’s age or any disability,
  11. a plea of guilty by the offender (as provided by section 22),
  12. the degree of pre-trial disclosure by the defence (as provided by section 22A),
  13. assistance by the offender to law enforcement authorities (as provided by section 23).
2. The court is not to have regard to any such aggravating or mitigating factor in sentencing if it would be contrary to any Act or rule of law to do so.
3. The fact that any such aggravating or mitigating factor is relevant and known to the court does not require the court to increase or reduce the sentence for the offence.
20. Your submissions should be developed around the mitigating factors.

21. There are a number of additional factors that might be referred to as “objective factors”. These should be considered in preparing a plea, and include :
1. the seriousness of the offence;
2. the circumstances of the offence (placing reliance upon the Facts Sheet) and your instructions (if significant by way of affidavit);
3. The penalty;
4. The prevalence of the offence and need for deterrence;
5. Any aggravating factors (including being on bail or subject to a bond);
6. Sentencing principles.
22. Consideration should also be given to “subjective features” such as the following to determine whether they need to be addressed in your submissions :
1. Age;
2. Remorse and/or restitution;
3. Relevance of drugs/alcohol/gambling to the offences;
4. Education;
5. Employment;
6. Background;
7. Criminal History;
8. Prospects of rehabilitation;
9. Likelihood of recurrence (what has changed);
10. Any time spent in custody for the offence.
Does the plea of guilty help the offender ?

23. The plea of guilty must be taken into account in sentencing (Section 22 of the Act; R v Thomson (2000) 49 NSWLR 383).

24. An early plea will result in a “discount” of the sentence.

25. A guideline judgment on pleas of guilty has fallen from the Court (See R v Houlton 49 NSWLR 383).

26. A plea of guilty may attract a discount on sentence in two respects :
1. the utilitarian aspect, which means that victims do not have to give evidence, and the time and expense of a defended hearing has been avoided. The strength of the crown case is not taken into account in evaluating the extent of the discount for the plea of guilty;
2. the plea of guilty may be evidence of your client’s contrition or remorse for committing the offence. If this is the case, your client will be entitled to an additional discount, over and above the discount for the utilitarian aspect of the plea.
Contrition

27. This is a significant factor with respect to the exercise of discretion. If the offender is of the mind that for example he wishes he had “smashed the bloke another time – but they broke up the fight” needless to say it will be difficult for any reduction in sentence to apply.

28. If though for example in a property damage matter the offender has of his own accord pad for any such damage, this will stand him well.

29. You should ask your client how he or she feels about the situation. Hopefully they will say something like “Oh …I am so embarrassed …and I wish it never happened.” If so you might literally say to the court “I have asked my client how he feels about the situation and he said ‘I am so embarrassed …and I wish it never happened’.”

A bit of flare

30. Don’t be afraid to exercise some of that artistic flare that comes with advocacy. Open your submission with impact. For example, on a drink driving plea you might say “Your Honour, Miss Carrington’s circumstances are for her and her family truly tragic. She is 28 years old, she is an alcoholic, and has been an alcoholic for 6 years.”

Do References help?

31. In essence, it is better to have them than not.

32. I have had a Magistrate say to me when tendering references “Mr Taylor, have you ever tendered a reference that doesn’t say glowing things about the offender ?”

33. Nevertheless, consider the following matters in relation to references :
1. try to have the referee be a person of good standing within the community;
2. consider the nature of the offence – in relation to child sexual offences it is not uncommon for the offender to be of otherwise outstanding character;
3. consideration should be given to the disadvantage of asking that Magistrate friend of the family to provide a reference, given the impact such a request may have upon that relationship. Often an offender will simply be so embarrassed they would rather not call in on favours in obtaining references (and go without);
4. any reference should :
1. be addressed to “the Presiding Magistrate” (or Judge as it may be);
2. clearly acknowledge the referee’s specific awareness of all off the charges;
3. express how long the referee has known the offender;
4. express how the referee came to know the offender (ie social, work, academic setting);
5. express positivity in relation to the offender’s character.
Should I propose a sentence or penalty?

34. Unless you are sure about the range of sentence that would be appropriate, don’t proffer a sentence. The Magistrate will no doubt have in mind where the matter sits within his or her personal scale. Unless you have appeared extensively before that Magistrate on similar matters, you may actually do your client a disservice.

35. It is usual to remain silent on a proposed sentence when appearing on minor matters.

36. If you are for example hoping for the matter to be dealt with by a category of sentence (such as a Section 10 bond) – then by all means express this to the Magistrate.

What are the purposes of sentencing?

37. The purposes of sentencing are set out in Section 3A of the Act. They are :
1. to ensure that the offender is adequately punished for the offence;
2. to prevent crime by deterring the offender and others from committing similar offences;
3. to protect the community from the offender;
4. to promote the rehabilitation of the offender;
5. to make the offender accountable for his or her actions;
6. to denounce the conduct of the offender;
7. to recognise the harm done to the victim of the crime and the community.
38. These purposes should be considered when preparing a plea.

Sentencing Options

39. Reference should be made to the Crimes (sentencing Procedure) Act 1999.

40. Basically a sentence can be :
1. non custodial; or
2. custodial.
41. The non custodial options include :
1. a dismissal and conditional discharge (Section 10);
2. a fine (Section 13);
3. a Bond (Section 9);
4. a deferred sentence (Section 11);
5. a community service order (Section 8).
42. The custodial options include :
1. a suspended sentence (Section 12);
2. Periodic detention (Section 6);
3. Full time imprisonment (Section 5);
4. Home Detention (Section 7).
Dismissal and Conditional Discharge

43. The court may find a person guilty but dismiss the charge on condition that the person enter into a good behaviour bond of up to 2 years. This provision was once fondly known as s. 556A. A fine or community service order cannot be combined with a dismissal or conditional discharge: s. 13 and 14 Crimes (Sentencing Procedure) Act.

44. In determining whether or not to make an order under s. 10. the court is required to have regard to:

a.    the person’s character, antecedents, age, health and mental condition;
(b) the trivial nature of the offence;

b.    the extenuating circumstances in which the offence was committed;

c.    any other matter that the court thinks proper to consider.

45. This list is not exhaustive.

46. If the offence is not trivial, is does not necessarily follow that s. 10 cannot be applied: Paris [2001] NSWCCA 83, but see Piccin (No 2) [2001] NSWCCA 323.

47. The fact that the defendant could not have done anything prevent the offence (for example in a crime of strict liability) is a relevant matter: Thornloe v Filipowski [2001] NSWCCA 213.

Fines

48. In working out the fines, it is important to bear in mind that the term ‘penalty unit’ is currently defined as being $110: s. 17 Crimes (Sentencing Procedure) Act.

49. A court imposing a fine is obliged to take into account the means of the offender: s. 6 Fines Act. A court should not impose a fine which a person cannot pay: Rahme (1989) 43 A Crim R 81. The amount of the fine is relevant to the sentence imposed: Tapper (1992) 64 A Crim R 201.

Bonds

50. A good behaviour bond is not to exceed 5 years: s. 9 Crimes (Sentencing Procedure) Act. A bond can generally be imposed with a fine for the same offence ( s. 14 Crimes (Sentencing Procedure) Act ) but not a community service order: s. 13 Crimes (Sentencing Procedure) Act.

51. The conditions of a bond must be certain and not be unduly harsh, unreasonable, or needlessly onerous. Thus a condition of a bond that an Aboriginal man whose family lived in Wilcannia, not enter Wilcannia, without permission from the sentencing judge, was overturned by the NSW CCA: Bugmy [2004] NSWCCA 258.

52. In the Children’s Court a bond is not to exceed 2 years (s. 33(1) (b) Children (Criminal Proceedings) Act). In the Children’s Court a bond can be combined with a fine.

Deferred Sentence (Griffiths Remand)

53. A court may defer passing sentence for a period of up to 12 months from the date of conviction to allow the offender to be assessed for rehabilitation, or to demonstrate that rehabilitation has taken place, or for any other purpose: s. 11 Crimes (Sentencing Procedure) Act, s. 33(1) (b) Children(Criminal Proceedings) Act. This corresponds to what used to be referred to as a ‘Griffiths remand’: Griffiths (1977) 137 CLR 293.

54. The statutory ‘Griffiths remand’ is not restricted to cases where a non-custodial sentence is contemplated (which was the position at common law); it can be ordered in a case where a remand would be of assistance to the court in determining the non-parole period: Trindall (2002) 133 A Crim R 119, Williams [2004] NSWCCA 64. It should not be granted in a case where there are unresolved disputes of fact as to the objective seriousness of the offence: Palu (2002) 134 A Crim R 119 at para [38].

55. The Crown can appeal against a Griffiths type remand to the Court of Criminal Appeal: Trindall (2002) 133 A Crim R 119.

Community Service Orders

56. A court can impose a community service order of up to 500 hours (see s. 8 Crimes (Sentencing Procedure) Act). A community service order cannot be combined with a bond: s. 13 Crimes (Sentencing Procedure) Act.

57. In the Children’s Court, if the child is under 16, the maximum community service order is 100 hours. If the child is 16 or over, the maximum community service order is 250 hours, depending on the maximum penalty for the offence: s. 13 Children (Community Service Orders) Act.

Imprisonment Generally

58. Where a court determines that a full-time custodial sentence needs to be imposed, there should be a 3 stage process: Douar [2005] NSWCCA 455 at paras [69] to [72].

59. Firstly, the court has to determine that no punishment is appropriate other than a sentence of imprisonment: s. 5 Crimes (Sentencing Procedure) Act.

60. Secondly, if a court determines that a sentence of imprisonment must be imposed, the court must first determine the term of the sentence. That determination should be made without regard to the manner in which the sentence is to be served: Zamagias [2002] NSWCCA 17 at para [26].

61. Thirdly, the court must then consider whether any of the alternatives to full time imprisonment are available:
- home detention if the total sentence is under 18 month
- suspended sentence if the total sentence is under 2 years
- week-end detention if the total sentence is under 3 years
However if a sentencing judge does not expressly state that he/she has applied these two steps, it does not necessarily follow that an appellate court will intervene: Zamagias [2002] NSWCCA 17 at para [30].

Suspended Sentence

62.      A court that imposes a sentence of 2 years or less may make an order suspending the sentence on condition that the offender enters into a good behaviour bond for a period not exceeding the term of the sentence: s. 12 Crimes (Sentencing Procedure) Act. First the judge should determine whether a sentence of imprisonment should be imposed, then determine the length of the sentence, and then the judge should determine whether or not the sentence should be suspended: Dinsdale (2000) 202 CLR 321, [2000] 175 ALJR 1538, 115 A Crim R 558 at para [79], Foster [2001] NSWCCA 215 at para 30, Blackman and Walters [2001] NSWCCA 121.

63.      A suspended sentence is a heavier sentence than a non-custodial sentence (such as a bond), and as a result should not be imposed be imposed if a non-custodial sentence such as a bond is appropriate: JCE (2000) 120 A Crim R 18 at para [16].

64.      A suspended sentence is not akin to no punishment at all, it is a sentence of imprisonment: Elliot v Harris (1976) 13 SASR 516 at 527 (per Bray CJ), JCE (2000) 120 A Crim R 18 at para [15] and [24] -[25], Foster [2001] NSWCCA 215 at para 36. Generally speaking, if in the original sentence proceedings the Crown does not submit that a suspended sentence is inappropriate, the Crown will not be able to so argue successfully on appeal: R v Wilson (1981) 28 SASR 362 at 367-8, approved by the High Court in Everett v The Queen (1994) 181 CLR 295 at 302.

65.      A suspended sentence cannot be imposed if the offender is serving a sentence of imprisonment which is not suspended: s. 12(2). This will apply even to a period when the offender is on parole: Edigarov [2001] NSWCCA 436.

66.      Section 12 has been amended so that a sentence can only be wholly suspended, thus overruling Gamgee [2001] NSWCCA 251.

67.      Section 12 has also been amended so that it is no longer necessary for the judge imposing a suspended sentence to nominate a non-parole period (this is effected by the amended s. 12(3) which says that part 4 of the Act does not apply). This effectively overturns the situation where it was thought to be necessary to always ask a judge imposing a suspended sentence to set a non-parole period because on a breach of the suspended sentence there was no power to set a non-parole period. As to the previous situation see Tolley [2004] NSWCCA 165 and Wise [2006] NSWCCA 264 esp at para [14].

Periodic Detention

68.      Where a court has determined to sentence a person for a total sentence of less than 3 years, the court may order that the person serves the sentence by way of periodic detention: s. 6 Crimes (Sentencing Procedure) Act. Amendments to the Act now require the judge to undertake a two stage process, firstly determining the total sentence (including the non-parole period and additional term), and then determining if the sentence should be served by way of periodic detention: Wegener [1999] NSWCCA 405.

Home Detention

69.      Where a total sentence (that is minimum and additional term) of 18 months or less is imposed, an application can be made to serve the sentence by way of home detention: s. 7 Crimes (Sentencing Procedure) Act. Sentences for murder, attempted murder, manslaughter, sexual assault, armed robbery, firearms offences, assault occasioning actual bodily harm or stalking cannot be served this way: s. 76 Crimes (Sentencing Procedure) Act.

70.      A sentence of home detention cannot be imposed if the person has a record for any of the last mentioned offences, or has been convicted of a domestic violence offence or had an AVO made in the past 5 years where the victim lives at the intended address: s. 77 Crimes (Sentencing Procedure) Act.

71.      Home detention is to be regarded as a substantially less onerous sentence than gaol. The sentencing judge should first determine the appropriate total sentence of imprisonment. If the total sentence is 18 months, or less, the judge can then consider whether an order for home detention can be made: Jurisic (1998) 45 NSWLR 209, 101 A Crim R 259.

Some Practical tips

72.      In making your plea :
1. try not to get the Magistrate off-side;
2. be respectful to your opponent;
3. explain the procedure to your client;
4. explain the sentence to your client (and wait with them if they have to receive a bond);
5. don’t carry on – the Magistrate will invariably have a busy list with many pleas to deal with. Get to the point – quickly;
6. read the relevant legislation carefully;
7. make discreet, respectful enquiries of colleagues and/or the prosecutor in relation to the Magistrate (to determine their style and tendencies);
8. Consider the impact a criminal record will have upon your client (and thus the suitability of a Section 10 bond – without recording of conviction).

Chris Taylor » Criminal Defence, Criminal Law Lawyers & Criminal Lawyers Sydney

Plea in Mitigation – Guilty Pleas

Plea in Mitigation – Practical Matters

Christopher Taylor – Criminal Barrister

An outline of the Session

What is this paper about?

What is a plea in mitigation?

What information will I have before the Court appearance?

Other documents to obtain before the appearance

What if there is a real risk my client will go to jail ?

The procedure in court

What do I actually say ?

Crimes (Sentencing Procedure) Act 1999 No 92

21A Aggravating, mitigating and other factors in sentencing

Does the plea of guilty help the offender ?

Contrition

A bit of flare

Do References help?

Should I propose a sentence or penalty?

What are the purposes of sentencing?

Sentencing Options

Dismissal and Conditional Discharge

Fines

Bonds

Deferred Sentence (Griffiths Remand)

Community Service Orders

Imprisonment Generally

Suspended Sentence

Periodic Detention

Home Detention

Some Practical tips

An outline of the Session

What is this paper about?

What is a plea in mitigation?

What information will I have before the Court appearance?

Other documents to obtain before the appearance

What if there is a real risk my client will go to jail ?

The procedure in court

What do I actually say ?

Crimes (Sentencing Procedure) Act 1999 No 92

21A Aggravating, mitigating and other factors in sentencing

Does the plea of guilty help the offender ?

Contrition

A bit of flare

Do References help?

Should I propose a sentence or penalty?

What are the purposes of sentencing?

Sentencing Options

Dismissal and Conditional Discharge

Fines

Bonds

Deferred Sentence (Griffiths Remand)

Community Service Orders

Imprisonment Generally

Suspended Sentence

Periodic Detention

Home Detention

Some Practical tips