Agravating & mitigating factors (topic five) PDF

Preview

Summary

Download Agravating & mitigating factors (topic five) PDF

Description

Aggravation and Mitigation The aim of this lecture is to: 1. describe and evaluate various aggravating and mitigating factors that have been identified in sentencing decisions. Content: 1. Sentencing Act: 2. Principles of aggravation and mitigation References: Sentencing Act 1995; Walker & Padfield (1996).

1. Sentencing Act 1995 The underlining below is mine. The purpose is to highlight a principle or issue.

6.

Principles of sentencing (1)

A sentence imposed on an offender must be commensurate with the seriousness of the offence.

(2)

The seriousness of an offence must be determined by taking into account — (a) (b) (c) (d)

(3)

Subsection (1) does not prevent the reduction of a sentence because of — (a) (b)

7.

the statutory penalty for the offence; the circumstances of the commission of the offence, including the vulnerability of any victim of the offence; any aggravating factors; and any mitigating factors. any mitigating factors; or any rule of law as to the totality of sentences.

Aggravating factors (1)

Aggravating factors are factors which, in the court’s opinion, increase the culpability of the offender.

(2)

An offence is not aggravated by the fact that — (a)

the offender pleaded not guilty to it;

(b)

the offender has a criminal record; or

(c)

a previous sentence has not achieved the purpose for which it was imposed. 1

(3)

If the statutory penalty for an offence is greater if the offence is committed in certain circumstances than if it is committed without the existence of those circumstances, then — (a)

an offender is not liable to the greater statutory penalty unless he or she has been charged and convicted of committing the offence in those circumstances; and

(b)

whether or not the offender was so charged, the existence of those circumstances may be taken into account as aggravating factors.

The Act states what isn’t an aggravating factor but not what is an aggravating factor however it is perceived as something that increases culpability.

8.

Mitigating factors (1)

Mitigating factors are factors which, in the court’s opinion, decrease the culpability of the offender or decrease the extent to which the offender should be punished. – highly discretionary

(2)

A plea of guilty by an offender is a mitigating factor and the earlier in proceedings that it is made, or indication is given that it will be made, the greater the mitigation.

(3)

The fact that criminal property confiscation has occurred or may occur is not a mitigating factor.

(3a)

However, except in the case of derived property, facilitation by the offender of criminal property confiscation is a mitigating factor.

(4)

If because of a mitigating factor a court reduces the sentence it would otherwise have imposed on an offender, the court must state that fact in open court. - Compare with intuitive synthesis

(5)

If because an offender undertakes to assist law enforcement authorities a court reduces the sentence it would otherwise have imposed on the offender, the court must state that fact and the extent of the reduction in open court.

(6)

In this section — criminal property confiscation means — (a) confiscation of derived property or any other property under section 6, 7 or 8 of the Criminal Property Confiscation Act 2000; or (b) confiscation or forfeiture to the State of derived property under any other written law; derived property means property derived or realised, directly or indirectly, by the offender, or that is subject to the effective control of the offender, as a result of the commission of the offence.

2

2.Aggravation and Mitigation: Justifications 1 2.1 Aggravation Generally aggravating factors are those which increase the culpability of the offender or increase the harmfulness of the conduct. In WA these are often specified in the Code. 1. Gravity Legislation defined and determined by nature and length of maximum sentence and in this sense not an aggravating factor but rather the commensurate factor. But there is a difference between stealing $1,000 and $1. Seriousness impacts on sentence. Retributionist – just desert, punishment fitting the crime etc. Utilitarian – deterrence arguments obvious 2. Previous convictions Repeat offending means a denial of mitigating factors so you can’t increase the sentence but you can’t reduce in light of mitigating factors that would normally effect. Justifications:  belief that the previous sentence was not effective (utilitarian therefore seeks to increase effectiveness by increasing severity but one could argue that if it is inefficacious there is no point in further punishment!);  and/or there is no argument that the behaviour was out of conduct ie he’s done it before! (and therefore is presumably more culpable). Difficult to justify from a retributive perspective. 3. Offending while on bail Justification: breach of trust 4. Dangerousness Ongoing risk to the community will attract higher punishment. Justification:  almost entirely utilitarian. Although inconsistent with proportionality, there are certain circumstances where risk to community over-rides other considerations. 5. Victim Injury or harm, involvement, vulnerability (age, gender, disability), Justification:  harm to the defenceless has low tolerance and belief that they are in need of greater protection;  or if the victim is an officer of the law (police officer) then interference with their duties is an interference with the law. 6. Abuse of trust 1

Walker, N & Padfield, N (1996) Sentencing: theory, Law and Practice. London: Butterworths.

3

There are a range of offences where a breach of trust aggravates the act. Justification:  Retributive because of breach of trust.  Utilitarian because need to reinforce persons in position of trust not to abuse that trust and the likelihood of escaping detection argument. 7. Professional Where the offender is regarded as a professional, characterised by long records, skills and valuable crimes. Utilitarian justification as the professional is likely to do more harm than a non professional counterpart. 8. Likelihood of escaping detection Justification: effective deterrence is a combination of probability of being caught and severity of punishment – utilitarian. 9. Premeditation versus impulsive Justification:  retributivist - considered morally worse than impulsive behaviour  utilitarian - another perspective of impulsivity is that the person cannot control themselves & therefore is a greater risk & therefore needs incapacitation  But utilitarians could also argue the alternative perspective – calculated crime can be controlled by calculated consequences (rational choice perspective). 10. Prevalence A utilitarian justification – general deterrence argument 11. Unnecessary or excessive violence Justification: considered morally worse. Also justifiable on utilitarian grounds. 12. Short term visitors Abuse of trust argument 13. Motives. Greed worse than need, racial hatred worse than football violence, revenge may be tolerated.

2.2 Mitigation Tends to be retributive in basis because offenders  culpability is diminished,  the pain of sentencing is greater  the offender has undone some harm by acting in a meritorious manner Utilitarian justification may be  offender’s characteristics justify a lower sentence; and  see Bentham’s exceptions 1. Diminished capacity justifications 4

 

Retributive because moral culpability is absent. Utilitarian because there may be no good purpose – see Bentham’s original justifications.

2. Demonstration of remorse, especially if there is reparation Justifications  retributive (note the vengeance or moral justification) or  utilitarian (indication of reduced risk) 3. Necessity Justification:  both retributive (diminished culpability) and  utilitarian (indicates less of need for individual deterrence) 4. Entrapment Justification: retributive and utilitarian 5. Duress: reduced blameworthiness 6. Unfortunate background reduced culpability - responsibility 7. The effect on the offender for example disability, size (if sent to prison) justification: breaches proportionality 8. Age: reduced responsibility 9. The effects on others: commensurability 10. Guilty plea: taking responsibility 11. Assisting law enforcement (especially helping identify others and identifying otherwise unknown offences): utilitarian 12. Cultural background: reduced responsibility 13. Delay: proportionality 14. Voluntary seeking of help taking responsibility 15. Adverse publicity commensurability 16. Extra-curial punishment commensurability

5...