Chapters

The nature of the offence and the offender: mitigation and aggravation

A young man commits the offence of burglary, and steals $4,000 from a business.[1] 8 years later DNA evidence links him to the offence. He committed a number of offences of dishonesty around the same time, but since then has turned his life around considerably, volunteering his time in the community and seeking work. He has committed no further crimes in the 8 years since the offence. He pleads guilty. He cooperates with police. He feels remorse for his younger self, and as an older man wants to move on and contribute to the community. The court gives him a 12 month wholly suspended sentence, with a 24-month (2 year) good behaviour bond.

What did the court take into account?

  1. The crime is historical – it happened 8 years ago
  2. The remorse and the plea of guilty
  3. The significant change in behaviour of the defendant, and the length of that change
  4. His contributions to and place in the community

But, we can take the same factors that the court took into account as mitigating factors for this defendant – the age of the crime, expressions of remorse, the contributions to the community and the self-improvement of the defendant, and the plea of guilty and they will not be mitigating factors for a different offence. This is not to say that the absence of remorse is aggravating, remorse is a mitigating factor but the absence of remorse is not aggravating. It is just that different offences have different elements, and a sexual offence for example, that uses status in the community and the shame surrounding sex to conceal the offence for many years, will not have those same elements of community standing and the lapse of time as mitigating factors.

Example 2

The second example is of a man who was 83 years old at the time of sentencing.[2] His offending began in 1957. Most of his offending occurred during the 1970s to the 1990s. The offences occurred against eight boys. He was a public servant, and was a Court Registrar for many years. He occupied a position of trust that meant that the parents of the boys, aged between 9 and 13 years old, trusted them with their children when he took them out on his yacht or taught them woodworking. Although the court did not take his lack of remorse as aggravating, there was no mitigation based on remorse. Moreover, his respected status in the community could not contribute to a lessened sentence, as it was the means by which he committed the offences. The additional factors the sentencing judge had to consider were the health problems/age of the defendant. The defendant was sentenced to five and a half years imprisonment, reduced from seven years because the defendant only had a life expectancy of 6 years. The non-parole period was four and half years. Let us compare the considerations that were important in the first example.

  1. The crimes were historical – not of significance here in mitigation, as the harm to victims is often lifelong, and the nature of abuse of children is often that the crimes are concealed for long periods of time; to mitigate because of the passage of time would be to undermine the interests of victims
  2. there was no remorse and no plea of guilty – neither are aggravating in their absence, but without either there is no mitigation.
  3. The length of time over which offending occurred and the acts against many of the boys were not isolated acts, and there were many victims – he was at risk of offending again, so there was no change in his behaviour
  4. His contributions to and status in the community were a means of accessing his victims and of shielding himself from discovery

The only factor that the judge took into account in reducing the sentence was that the defendant was near the end of his life. As you can see, different crimes will mean different factors are important as mitigating or aggravating considerations. There was very little in mitigation for the second case, and the factors that had been important in the first case were not of importance to the outcome of the sentence in the last case.

Some factors are always aggravating – the use of violence is always aggravating, just as cooperation and an early plea of guilty are always mitigating.

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[1] Tasmania v Shane Vivian Smith, Underwood CJ, 20 February 2008 (Sentence).

[2] State of Tasmania v James Robert Eaton, Blow J, 4 June 2008 (Sentence).

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