CLP Plea in Mitigation Application

Question 1

What must the court consider when sentencing?

Answer 1

The court MUST consider the sentencing guidelines and are obliged to follow them unless contrary to do so

Question 2

Prosecution application for sentencing (structure of submissions)

Answer 2

1. Previous convictions
2. Ancillary orders
3. Sentencing guidelines
4. Victim impact statement

Question 3

Defence response - Mitigate sentencing (structure)

Answer 3

Defence Mitigate

1. State the offence - appear on D’s behalf
2. Remind the court that the sentence must be PROPORTIONATE to the seriousness of the offence, bearing in mind the offender’s culpability and any potential harm from the offence
   - identify culpability level
   - identify harm level
   - set range
3. Identify the starting point for sentence & range available
4. Consider (aggravating) and mitigating factors relating to the offence: ‘I understand the court may be concerned with the presence of aggravating factors… it must be acknowledged that…’
5. Multiple offences, explain why sentences should be concurrent - must be just and proportionate
6. Consider mitigating factors relating to the offender
   - genuine remorse
   - admissions in police interview
   - co-operation
7. Remind court of credit for guilty plea (discretionary)
   - FH: 1/3
   - PTPH: 1/4
   - Trial: 1/10
8. Propose an appropriate sentence
   - if suspended sentence = 3 elements (custodial, operation, supervision)
   - community order = must be serious enough

Question 4

What is the starting point for sentencing (point 3 in defence mitigation structure)

Answer 4

• Not pass a custodial sentence unless offence was SO SERIOUS that neither a fine, nor a community sentence, can be justified
• Not pass a community order, unless the offence was SERIOUS ENOUGH to warrant order

Question 5

What are aggravating / mitigating factors

Answer 5

• Agg: racism/on bail/sexism/planned/commit more serious harm than occurred/dispose evidence/weapon/abuse of power or position of trust/vulnerable victims/drink/drugs/public sector/presence of children
• Mitigating: less provocation / illness / disability / youth / minor role