Junior Criminal Lawyers Take Note: General Principles for Pleas in Mitigation

The following are some general principles to consider for court appearances.

Local courts are very busy and magistrates are pressed for time. A good plea in mitigation should generally take no more than 10 minutes. Remember that some magistrates may have to deal with more than one hundred matters in a list.

When you are appearing at any court and a matter is to be adjourned, please ALWAYS request DEILR (defendant/accused excused if legally represented).  It makes it easier for the law firm to coordinate court appearances and easier for clients especially if they work.

Do not repeat the full details of the charge and the legislation under which the charge is brought. For example, there is no need to tell the court: “The defendant pleads guilty to the offence of mid range PCA under s 9 of the Road Transport (Safety and Traffic Management) Act 1999.” The magistrate will have read the Court Attendance Notice and will be aware of the charge.

Do not repeat prosecution facts, antecedents or evidentiary material word for word. The magistrate will have read the material on the bench. Refer to any facts as much as is necessary and tie those facts in with the submissions that you make. Repeating the police facts will waste the court’s time.

It is generally best to start with the circumstances of the offence. This is not repeating the police facts. It is providing the court with the client’s explanation of why he or she committed the offence.

If the offence is a serious one, always acknowledge this on behalf of the client. This should be done towards the start of the plea. Accepting the seriousness of the offence and the wrongdoing by the accused can demonstrate remorse and contrition. Doing this sooner rather than later is critical. In a serious offence it is of no use to start off by telling the court about the accused’s background or about what a nice person the accused is: for example, a loving family man, with an MBA from Sydney University, hard working, supporting his three young children, and a churchgoer. The magistrate is aware of the seriousness of the offence and the good points will be lost if introduced at this stage.

Never seek to minimise the seriousness of the offence, even if the penalty is low. This type of lesser offence can be diplomatically referred to as: “an offence at the lower end of the scale” or as “not one of the more serious types of matters that comes before Your Honour.”

Refer to testimonials and medical reports in the briefest way.

Tell the court about your client, for example, age, marital status, children, aged parents, occupation, work history, education qualifications, personal achievements and awards. If you have any photographs, newspaper clippings, awards or similar material, these can be handed up to help humanise the client.

If there is something embarrassing or very personal in the client’s life and it is not in a testimonial or report, prepare that part of your submission in writing and hand it up for the magistrate to read, again at the start of the matter. Handing up documents halfway through a plea can break the flow of the presentation. Prepare and give a copy of the written submission to the prosecution in advance.

Do not put submissions that give an impression that the defendant is putting forward excuses or blaming someone else, particularly the victim. The magistrate will take the view that the offender is trying to shift the responsibility for his or her actions. This does not mean that you cannot rely on provocation as a mitigating circumstance pursuant to s 21A(3)(c) of the C(SP)A. Provocation should be put as an explanation of the defendant’s conduct, never as an excuse.

Look for any evidence that shows genuine remorse or contrition. This may be in a confession made during a formal record of interview, a handwritten statement to the police or a statement made and recorded in the arresting officer’s notebook. It may be words or acts of regret done immediately or shortly after the event. It could be in the form of a written or verbal apology to a victim.

Consider whether the plea has been entered at the first possible opportunity. Early entry of a plea shows acceptance of the wrongdoing and is evidence of contrition. An early plea also entitles the accused to a discount on sentence. Remind the court of the early entry: “Your Honour will note that my client has entered the plea at the earliest possible opportunity.” You need say nothing further.

If your client has family or community support, try to have those supporting people at the court. Refer to their support and presence, by introducing them generally and then turning slightly to point them out to the magistrate. Often the practitioner might ask those present to please stand up. Now pause sufficiently to allow the magistrate to get a good look at them. If you continue to address the magistrate while he or she is concentrating on the family then the next part of your submission may be missed. This type of visual impact and having the accused’s family in the court can have a really positive outcome in the sentencing considerations of the person on the bench, and may result in a custodial sentence not being imposed. Never have young children present as part of the family support if it can be avoided. This can be seen as an emotional tactic and can have an adverse impact.

Consider the impact on the accused. What has the accused suffered as a result of the charges — loss of job (and resulting financial hardship), embarrassment, humiliation, bad publicity, loss of face in the community, time spent in custody, time spent at the police station being fingerprinted and photographed (the latter being relevant more to a first offender)? This “experience” can be put as a salutary lesson, which has reminded the accused of the consequences of his or her wrongdoing and made the accused vow to never be in that position again.

Remember to consider all of the aggravating and mitigating factors in s 21A of the C(SP)A and insert them at the appropriate point.

Avoid repetition of submissions. Repetition is indicated by the use of the phrase: “and as I’ve already said Your Honour”.

Listen to the bench. Take the hint if the magistrate cuts you off. It is an indication that he or she has heard enough on the topic. If you ignore the hint, you do so at your own peril and to your client’s detriment. Just move swiftly to the next point. If the magistrate asks a question never ever respond with: “I am coming to that shortly Your Honour.” Such a response is inappropriate and is contrary to the magistrate’s control of the proceedings.

SENTENCING SUBMISSIONS

All pleas end with a submission on the appropriate sentence. For young practitioners this is often a difficult task. It involves being able to:

  • identify the relevant sentencing principle under s 3A of the C(SP)A;
  • weigh the aggravating and mitigating factors;
  • examine the criminal record, if any, and determine the sentencing trend;
  • identify the probability of either not offending again or committing further offences;
  • know the sentencing trends and attitudes of the particular magistrate;
  • know the sentencing trends for particular offences;
  • identify whether there is a relevant guideline judgment: see the Supreme Court website at www.lawlink.nsw.gov.au/lawlink/; and
  • make a sentencing submission that is logical and appropriate.
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