Factors for consideration

A quick look at mitigating and aggravating factors

Some mitigating factors

• A plea of guilty; the earlier in the process the better
• Cooperation with police / prosecution
• Confession and/or coming forward
• Remorse
• Attempts at rehabilitation on the part of the defendant; reformed character
• If a financial crime, attempts to restore the damage or loss

Some aggravating factors

• Excessive force
• Financial gain in non-financial offences (e.g. child pornography)
• Abuse of trust
• Attempting to prevent the complaint being heard
• Persisted in offending despite police intervention
• Racial motivation
• Victim impact
• Persistence in committing offences
• Use of a weapon
• Committing offences while on bail, particularly for similar offences

Aggravating Factors

When courts are considering a sentence they will often refer to aggravating factors. Aggravating factors depend on the type of crime, but a consistent aggravating factor is the harm to the victim. So, for example, if a person commits an armed robbery and they terrorise a bank teller who then suffers from posttraumatic stress disorder as a consequence of the offender’s behaviour, the court will take this into account as an aggravating factor. Conversely, if an armed robbery is carried out with a minimal amount of violence, it will be seen as an offence at the lower end of the range, and there will be less aggravating factors. Violence, particularly excessive violence, a breach of trust, the use of a position of power, harm to victims, premeditation, where the conduct occurred over a long period of time, and the extent of financial harm if the offence is a financial crime. Other factors to consider will be degree of participation, provocation, motive, and intention.

Mitigating Factors

Two key factors are mitigating: remorse and a guilty plea. Remorse must be genuine, and courts will sometimes discuss whether remorse is genuine. Courts will also discuss the point in time at which a person pleaded guilty. If an offender made early and full confessions and a plea of guilty, this is a substantially mitigatory factor. If an offender made pleas of guilty before the trial as a mere ‘acceptance of the inevitable’ this will have far less weight in mitigation than an early plea of guilty with genuine remorse. Cooperation with the authorities is also a factor in mitigation. One sex offence case only came to light because of the confession of the offender. This was taken as a factor in mitigation by the sentencing judge (see JTM, 9 December 2010). Other characteristics of the perpetrator that the court takes into account include youth, extreme age, ill health, remorse, awareness of wrongdoing, and cooperation with the police.