Chapters

Under section 3 of the Sentencing Act, a sentencing judge must consider the following purposes of sentencing in passing sentence:

  • Deterrence, of others and of the offender
  • Denunciation of the offence
  • Retribution – punishment
  • Protection of the community
  • Rehabilitation
  • The interests of the victim

In addition to these purposes of sentencing, in order to sentence a defendant, a court must consider a number of factors that go to the offence and the offender. These are called ‘aggravating and mitigating factors’. Mitigate means to make less severe. Aggravate means to make more severe. There are many mitigating and aggravating factors, and it is impossible to give an exhaustive list. However, included among the mitigating and aggravating factors will be:

  1. The nature of the crime – for example, was it a minor or major example of the offence type?
  2. The circumstances of the offender – for example, is the offender a first time offender?
  3.  Harm arising from the offence – for example, was a victim badly hurt?
  4. Circumstances around the trial – for example, a plea of guilty and cooperation with the police.
  5. Other aggravating or mitigating factors, such as no remorse, excessive violence in the commission of the offence, or attempts to make things right with the victim.

The combination of factors, and the weight they are given differs depending on the offence. For example, a person convicted of  ‘white collar crime’, such as fraud by an accountant or lawyer, will not receive as much leniency for previous good character as someone convicted of a first offence assault. This is because good character is, to an extent, an element of the means of offending. This is also true where sex offenders have used their position of trust or authority to exploit the dependent relationship of children or vulnerable adults placed in their care.

A plea of guilty is another example of where there is a wide range of difference in how mitigating the plea of guilty will be. A bare plea of guilty that is a simple ‘bowing to the inevitable’ will not attract as much mitigation as an early plea of guilty coupled with genuine remorse. A plea of guilty the day before the trial is set to begin will also not attract as much mitigation as an early plea because the plea will not have spared the courts or other parties, such as victims and witnesses, the difficulties of pre-trial preparation.

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