Ple in Mitigation - LPC Notes PDF

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Plea in Mitigation 

The objective of the plea in mitigation is to persuade the sentencing court to impose upon D the most lenient sentence which the court could reasonably expected to give for that offence.

The Structure of plea in mitigation 1. The “starting point” sentence  D solicitor should begin by identifying the “starting point” sentence.  If S has done research on the relevant lenient sentence is ,likely to be, this should be addressed/identified by the S in court.  Objective of plea in mitigation is to persuade the magistrates to impose a sentence which is less severe that the “starting point” sentence. 2. The offence  PiM should then focus on the offence itself.  the defendant’s solicitor should then address the circumstances of the offence, minimising the impact of any aggravating factors and stressing the importance of any mitigating factors that are present.  Requires D’s S to:  minimise the impact of any aggravating factors surrounding the offence;and emphasise the importance of any mitigating factors. 

For each offence covered by the Magistrates’ Courts Sentencing Guidelines, there is a list of possible aggravating and mitigating factors.

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E.g, aggravating factors in a case involving the use of violence against another may include: (a) the use of a weapon; (b) extensive injuries to the victim; (c) premeditation; (d) a group action; (e) a sustained attack; (f) a victim who is particularly vulnerable (such as an elderly or disabled person, or a child).

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Possible mitigating factors in such a case may include: (a) minor injuries to the victim; (b) an element of provocation; (c) the use of a single blow; (d) no weapon used; (e) no element of premeditation.

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Aggravating factors for a property-related offence such as the burglary of a dwelling house may include: (a) the threat or use of force; (b) stealing items of a high financial or sentimental value; (c) an element of planning;

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(d) significant damage to the property (eg, a house being ransacked, or significant damage caused when gaining entry); (e) the presence of the victim at the time of the burglary (particularly if the burglary is at night). Mitigating factors in such a case may include: (a) no use of force or violence; (b) only items of low value being stolen; (c) an offence committed on impulse or an opportunistic crime; (d) no damage caused to the property; (e) the burglary being carried out when the property was vacant. D’s solicitor should identify any aggravating factors which would normally lead the court to impose a sentence in excess of the ‘starting point’ sentence, and attempt (if possible) to disassociate D's case from those factors. Similarly, D's solicitor should emphasise to the court the presence of any mitigating factors.

3.The offender D’s solicitor should then emphasise any personal mitigation which the defendant may have. Factors Details  Younger= the more likely the court would want to pass a The age of the defendant sentence to help them rather than to punish them.  Likely if immature and impressionable has been led astray by older co-D.  Sympathetic treatment to D of advanced years, P if this is 1st offence. 

The health of the defendant.

Drug addict/alcoholic/depression etc Sentence should be given to help the defendant; e.g a generic community order that incorporates a drug rehabilitation requirement or an alcohol treatment requirement) Long term illness/injury at time of O= sympathy 4rm court.

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 Cooperation with the police/early guilty plea

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will give D credit for entering an early guilty plea to the offence (since the sentencing guidelines are based on the appropriate sentence for D who is convicted following a trial). The amount of credit D will receive depends upon the stage in the proceedings at which D entered his guilty plea. Such credit may amount to a max reduction of onethird of the sentence D would have received had he pleaded not guilty (if D has pleaded guilty at the first opportunity). D’s S should (if appropriate) always remind the court of this. It would also be appropriate to tell the court if D has positively assisted the police in their enquiries, for

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Voluntary compensation

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 Remorse

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Character

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  Family circumstances

example by naming others involved in the crime or by revealing the whereabouts of stolen property. The fact that D made a prompt confession when questioned by the police is also useful mitigation, showing that D did not waste police time during the investigation process. D who voluntarily makes good the damage which he caused or who makes a voluntary payment of compensation to his V, is likely to receive credit for this. -is the case if D is of limited means. V effective if evidence of true remorse. Mere apology made by D’s S to the court on behalf of his client is unlikely to have much effect, but the court will take into account any positive steps which the defendant has made to tackle the problems which led him to commit the offence. E.g., the court is likely to give credit to a defendant who is to be sentenced for several public order offences committed whilst in a drunken state, if that D has begun to attend classes organised by Alcoholics Anonymous to combat his addiction. the court will give credit to D who has committed thefts to fund a drug habit, but who has voluntarily sought treatment for this Previous convictions- this can be used against D. If same- S should differ the cases and explain the facts of the case- e.g committed theft in order to fund drug related due to problems etc, specific explanation of such activities . May call character witnesses to give evidence on good character. May lose good name in result of being convicted.  court has requested a pre-sentence report from the Probation Service, this will look in depth at D's personal background and family circumstances.  D's solicitor should also refer to the defendant’s personal circumstances in the plea in mitigation, particularly if D has a regular home and job, and has family who will be supportive in his attempts to stay out of trouble in the future.  if exceptional circs exist, explaining to the mag the effect D’s imprisonment will have on his immediate family can be effective mitigation.  E.g, D may have a partner who is dangerously ill 3

Other consequences of conviction

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Low risk of reoffending

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or who is expecting a child, or the defendant may have a handicapped child.  D's solicitor should also tell the court if a custodial sentence will result in D losing his job.  may persuade the court to impose a community penalty instead of imprisonment.  It is often the case D;s who are due to be sentenced may have received a recent offer of employment.  should be raised in mitigation, although the magistrates are likely to give this credence only if D is able to produce a letter or other document confirming the offer.  If D has had a troubled family background, it would also be appropriate to refer to this in mitigation, particularly if D is still young.  E.g, D may have come from a broken home, or have been physically or sexually abused as a child.  young Dts will often have become addicted to drugs or involved in prostitution at an early age.  particularly effective mitigation if D’s solicitor is able to say that the client has made a genuine attempt to overcome such a background. Appropriate to point out to the court any other adverse consequence suffered by D as a result of the conviction. E.g. job lost in position of responsibility, respect, and trust. May have to relinquish other positions of responsibility. Will be addressed by the pre-sentence report from the Probation Service- the risk of D committing further offences. Risk assessed low: D’s S should mention this in the plea in mitigation to support an argument that D’s offending was a one-off aberration for which the D has shown remorse and a willingness to change.

4. the suggested sentence  S should state the alternative sentence which should be given to the D in court.  Make this realistic- the sentence cant go from custodial sentence to a fine! Luk @ flow chart,, can go one step down.  should be lower than the "starting-point" sentence, and should replace all the mitigating factors which D placed before the court.

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