Mitigating Circumstances in Sentencing: Analysis and Meaning

This article critically analyzes the concept of mitigating circumstances in sentencing and explores whether courts should give weightage to such circumstances. It discusses the meaning of mitigating circumstances and the factors considered by the court. The article also examines the application of mitigating circumstances in the Australian legal system.

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Name Of the Student
Name Of the University
Author’s Note

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A plea in mitigation means the opportunity to the court to share information that would
assist the court in deciding specific and appropriate sentence. Analysis of mitigation means
complete analysis of the background of the convict and the personal circumstances under which
he or she committed the crime. Thus, it has been explained that mitigation of circumstances
means that the facts and circumstances which do not provide exemption or excise to any person
for civil or criminal misconduct resulting in liability but such facts and circumstances may depict
that valid reasons existed behind the commission or omission of such act amounting to liability.
The thesis aims to critically analyse the statement “whether courts should give weightage
to mitigating circumstances which sentencing the guilty for a specific offense.” It further aims to
bring out the meaning of mitigating circumstances and the theories to refer the support and
argument while considering the analysis.
Australia’s six states have their own legislations regarding the mitigation of sentences
namely Crimes Act 1914 for Commonwealth1, Crimes (Sentencing Procedure) Act 1999 for
1 Crimes Act 1914 (Cth) pt 1B (“Sentencing, imprisonment and release of federal offenders”),
http://www.comlaw.gov.au/Details/C2014C00088.

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NSW2, Penalties and Sentencing Act 1992 for Queensland3, Criminal Law (Sentencing) Act
1988 for South Australia4 and lastly, Sentencing Act 1997 for Tasmania5.
Mitigation of circumstances in civil law are used to determine the cause behind the
arising of cause of action. It means that such circumstances are not used to decide the guilt of the
defendant but it is used to determine the quantum of punishment associated with the cause of
action. It means that in civil cases, the mitigation of circumstances do not prove that the
defendant id innocent. Instead it has no relevancy to the guilt or innocence of the defendant
rather it is more concerned with the amount of punishment given shall be in quantum with the
guilt involved. On the contrary, in a criminal case involving death penalty, the mitigation of
circumstances may be considered and the punishment may be reduced from death penalty to life
imprisonment. In case of a fatal car accident, the defendant is supposed to provide a breath
sample, and he refused to do so on the ground of constitutional right was rejected by the court
amounting to long years of imprisonment, shall continue to be the same without considering
2 Crimes (Sentencing Procedure) Act1999 (NSW), http://www.legislation.nsw.gov.au/maintop/view/inforce/
act+92+1999+cd+0+N.
3 Penalties and Sentencing Act 1992 (Qld), https://www.legislation.qld.gov.au/LEGISLTN/CURRENT/P/
PenaltASenA92.pdf.
4 Criminal Law (Sentencing) Act 1988 (SA), http://www.legislation.sa.gov.au/LZ/C/A/CRIMINAL%20LAW%
20%28SENTENCING%29%20ACT%201988.aspx.
5 Sentencing Act 1997 (Tas), http://www.thelaw.tas.gov.au

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mitigation of facts. This was done so on the ground of duty of the accused to provide
circumstantial evidence and prove his innocence from intoxication while driving6.
There are many factors depending upon which the mitigating circumstances are
considered by the court. They are firstly, the defendant’s age. This means that determination of
the fact that the defendant was a minor or an adult at the time of commission or omission of an
act amounting to civil or criminal liability is an important aspect as in civil law, minors are
generally exempted from the liability whereas in criminal law, the minors have lessened
punishments and such punishments are of different kinds and remand homes instead of prisons
and imprisonments as in the case of adults. The second factor is the mental capacity. The mental
capacity of the person at the time of committing or omitting an act amounting to civil or criminal
liability is an important aspect because the person’s disability due to intellectual capacity or
mental condition at such time decides whether the person shall be punished as a normal abled
person or the person shall be kept in special remand homes with proper facilities to attend such
medical conditions of the person leading to mental disability. The third factor is History of
abuse. If a defendant has a history of being abused, then the person has agitated state of mind
with revengeful attitude. Also, in some cases, the state of mind of such person becomes very
weak to make that particular person timid and submissive to all kinds of dominance. The fourth
factor is the criminal record of the person. The criminal record of the person ensures the habitual
offender capacity of the person while during mitigation, if the court observes that the person does
not have any criminal record, then the court may consider the request to lessen the punishment.
The fifth factor is victim culpability meaning the willingness of the victim to take part in the act
or omission of the act amounting to such civil or criminal liability. The sixth factor is unusual
6 R vs. Suter [2018] 2 SCC 34

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circumstances which show that the defendant is a completely different person and do not have
any tendency to act in the way to amount to civil or criminal offence. The actions of the
defendant are somehow justified by the seventh factor stating that is no harm is done to the
plaintiff, then the defendant shall not be liable. The eighth factor is necessity meaning that the
defendany6 had no other choice but to become a part to the crime or the offense out of necessity.
The ninth and the last factor means remorse meaning that the defendant is somewhat remorseful
or shameful for the act committed or omitted by him or her amounting to civil and criminal
liabilities.
Australian culture is a broad and varied landscape which is important in the creation of an
environment which is lively, innovative and outward looking. Australia follows a Westminster
form of government and legal system which is an important inheritance from the reign and
colonies of British who were the original colonials of the country. There are two main political
parties along with a lot of minor parties form the political system of the Commonwealth system
of the Parliament of Australia. However, the governments and its legal system is bifurcated and
co-existing between the state and the territory. Thus, such circumstances pave way for the
application of both state and territorial laws for the decision making process towards the dispute.
The social culture arising from the existence of colonies and their suppression of the Aboriginals
have led to the more developing complex among the people who are suppressed leading to more
revengeful ideas arising from their history of abuse and agitation towards thriving of an identity.
The economic culture arises from the bifurcation of classes among the people in two broad
categories namely the rich and the poor. The political system affecting the mitigation of
sentences is the support of the government parties or being the member of a government party is
automatically assumed to be supported ansd exempted by law in all circumstances. However,

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such is not the case. Every person is equal in front of the law and the same has been construed
while considering mitigation of sentences towards a party to the conviction. While there have
been many decisions in the favour of mitigation of facts but there has been one Western
Australian case gorming the guidelines to such rule7. The Western Australia has innovated a
principle called the spent conviction order meaning the small cases wherein the appellate court
has rejected the plea for mitigation of facts8.
After an accused pleads guilty, the judge decides upon the decision of the case including
the punishments and remedies and its quantum. The principles of sentencing that the judge
sternly considers while assessing the sentence and its quantum are: Deterrence, Rehabilitation
and Protection of the Community.
Deterrence means the punishment and its quantum is decided specifically for the criminal
and also to address public at large, setting the example of deterrence in such situations. The
punishment in itself inhibits fear among people about the consequences of committing such
crime. This instils the general boundaries of a behaviour that should form the framework for
standard living in the society. In Australia, the sentencing statutes vary from state and teriitory
forming different principles for consideration of principles of punishment. However, Section
21A of Crimes (Sentencing Procedure) Act 1999 (NSW) provides a non-exhaustive list of
mitigating factors as well as the aggravating factors that should be taken into account by the
court for sentencing a criminal. Section 5 (2) of the Sentencing Act 1991 (Vic) states that the
court should consider factors like nature and gravity of offence and the offender’s culpability and
character along with the impact of such offence, while sentencing a criminal. However, the
7 R vs. Payne [2004] SASC 160
8 R v Tognini [2000] WASCA 31

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general rule is that the mitigating and aggressive factors of any kind should be considered while
sentencing a convict9. Consideration of mitigating and aggressive factors lays down the
limitation for the application of deterrence principle of punishment, which is further criticized in
R vs. Veen10. The courts have taken deterrent approach in violent crimes preserving it for the
worst examples of the offence committed; otherwise, the punishment should be in best interest of
human rights considering a person should be punished in quantum of the offence or damage done
by the action or omission of an act leading to such liability.
Rehabilitation means that the behaviour of the offender is changed and reconstituted as
productive citizens. In other words, this form of punishment deals with the reconstitution of the
behaviour of the offender. The punishment should be such that the person’s inner mind is
changed by his or her realization of mistake or fault and helping him to change for the betterment
of his own self and the society as well. The offender in this principle renounces extremist
ideologies bearing the direct impact of rehabilitation11. The judges have applied the same
principle to assert the perpetration of foreign incursion case12. In addition continuous refusal to
be present for the court proceedings and face the action shows that the offender has not
changed13. Rehabilitation shall then fail in terrorism cases where the convict lies about menhtal
9 Commonwealth, Royal Commission into Institutional Responses to Child Sexual Abuse, Consultation Paper—
Criminal Justice (2016) [12.5].
10 [1979] 143 CLR 458
11 R v Elmir (No 3) [2019] NSWSC 1040
12 R v Ghazzawy [2017] NSWSC 474
13 R v Dirani (No 34) [2019] NSWSC 1005

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stability for consideration of mitigation of facts14. However, if the convict’s family, relatives and
other supporters affirms the fact the his or her actions were wrong, the the prospects of
rehabilitation shall be relevant in terrorism cases15.
The third principle of punishment called the Protection of Community is the putcome of
the prospects of rehabilitation approach. It means that the rehabilitation approach aims to change
the person’s thoughts about his actions being right or wrong and encourage the convict not to
repeat the offence16. In case the convict suffers from mental illness, the convict shall be
imprisoned along with the extended help or treatment by the Government professionals for
recognizance. If an offender recognizes his or her fault and behaves to improve his actions in
future, such ideologies shall be taken into consideration and the convict shall be released17. In
other words, if a person is of prior good character, he or she shall deserve credit on the ground of
prospects of rehabilitation18. However, such good character is not given much weightage and
consideration in child exploitation cases19. In the similar way, if a person’s previous act or
offence appears to be of similar nature, then the prospects of rehabilitation fails20.
14 R v Khan (No 11) [2019] NSWSC 594
15 IM v The Queen [2019] NSWCCA 107
16 R v Pogson [2012] NSWCCA 225
17 R v Philpot [2015] ACTSC 96
18 R v Harrington [2016] ACTCA 10
19 DPP (Cth) v Beattie [2017] NSWCCA 301
20 Afiouny v The Queen [2017] NSWCCA 23

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Deterrent theory is an old theory, which is applied to an array of national and territorial
security concerns. However, the interstate security involves rogue regimes and coercive
processes of punishment, denial, de-legitimization, dissuasion, and other concepts which are
correlative to the deterrence theory. It has been argued that the theory forms the basis of
international breach of national security including terrorism but for internal punishments,
deterrent theory is reserved for the more violent cases21. In modern age, new concepts are
explored in new and exciting way. The crimes related to cyberspace and such digital crimes,
deterrence may not be an effective method of punishment22. Rehabilitation is the form of
punishment which aims to change the people’s thoughts as to what is right and what is wrong. It
has been argued that in cases of sexual offenders, the offender is assumed to have victim
empathy owing to cognitive and emotional understanding of the experience of the victim due to
the abuse inflicted by him. Such empathy works as the rehabilitation approach to punishment but
it reduces to inconclusive theory because such empathy is a subjective matter and it may lack
strong evidence base and coherent theoretical model explaining changes23. The correlative
changes that comes as an outcome of rehabilitation punishment and the protection of the
community depends largely on the character of the person which may not be confirmed in
21 Wilner, Alex. "Contemporary deterrence theory and counterterrorism: A bridge too far." NYUJ Int'l L. & Pol. 47
(2014): 439.
22 Fischerkeller, Michael P., and Richard J. Harknett. "Deterrence is not a credible strategy for
cyberspace." Orbis 61.3 (2017): 381-393.
23 Mann, Ruth E., and Georgia D. Barnett. "Victim empathy intervention with sexual offenders: Rehabilitation,
punishment, or correctional quackery?." Sexual Abuse 25.3 (2013): 282-301.

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various instances24. Therefore, it has been rightly stated that the type of punishment is strongly
dependent on the type of crime committed and analysing the offender’s empathy towards his or
her victim.
The sentencing laws include the consideration of mitigating and aggressive factors that
led to the commission of the crime by the convict. It is argued that the character of the person
may otherwise be positive but if not for such mitigating or aggressive factors, such person would
not have committed such an offense. Therefore, in this aspect, it can be recommended that the
mitigating factors should not be considered as a whole. The factors should combine the
considerations along with the will of the person and necessity of the hour for such commission of
crime along with the intention of the convict. If the person has an intention to murder the other
person, he or she shall get aggravated even at small instances to prove his reason behind such an
act. Thus, it can be concluded that the mitigating factors do not stand alone and can be
recommended to consider the will and motive of the person committing the crime along with any
alternatives available to the person at that hour and its reasonableness with the situation of the
time. Quantum of punishment with the crime and its consequences also depends on the factor
24
Worrall, Anne, and Clare Hoy. Punishment in the Community. Routledge, 2013.

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that the gravity of the situation leading to the crime should be considered for effective delivery of
justice. Thus, it has been rightly said, “Justice delayed is justice denied. But, Justice hurried is
also justice buried.” The judges have a tough task but the consideration of such matters are at the
sole discretion of the court depending upon the evidences produced.

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BIBLIOGRAPHY
Legislations:
Crimes Act 1914 (Cth) pt 1B (“Sentencing, imprisonment and release of federal offenders”),
http://www.comlaw.gov.au/Details/C2014C00088.
Crimes (Sentencing Procedure) Act1999 (NSW),
http://www.legislation.nsw.gov.au/maintop/view/inforce/ act+92+1999+cd+0+N.
Penalties and Sentencing Act 1992 (Qld),
https://www.legislation.qld.gov.au/LEGISLTN/CURRENT/P/ PenaltASenA92.pdf.
Criminal Law (Sentencing) Act 1988 (SA),
http://www.legislation.sa.gov.au/LZ/C/A/CRIMINAL%20LAW% 20%28SENTENCING
%29%20ACT%201988.aspx.
Sentencing Act 1997 (Tas), http://www.thelaw.tas.gov.au
Case Laws:
R v Elmir (No 3) [2019] NSWSC 1040
R v Ghazzawy [2017] NSWSC 474
R v Dirani (No 34) [2019] NSWSC 1005
R v Khan (No 11) [2019] NSWSC 594
IM v The Queen [2019] NSWCCA 107

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R v Pogson [2012] NSWCCA 225
R v Philpot [2015] ACTSC 96
R v Harrington [2016] ACTCA 10
DPP (Cth) v Beattie [2017] NSWCCA 301
Afiouny v The Queen [2017] NSWCCA 23
R vs. Veen [1979] 143 CLR 458
R vs. Payne [2004] SASC 160
R v Tognini [2000] WASCA 31
R vs. Suter [2018] 2 SCC 34
Journals and Scholars:
Wilner, Alex. "Contemporary deterrence theory and counterterrorism: A bridge too far." NYUJ
Int'l L. & Pol. 47 (2014): 439.
Fischerkeller, Michael P., and Richard J. Harknett. "Deterrence is not a credible strategy for
cyberspace." Orbis 61.3 (2017): 381-393.
Mann, Ruth E., and Georgia D. Barnett. "Victim empathy intervention with sexual offenders:
Rehabilitation, punishment, or correctional quackery?." Sexual Abuse 25.3 (2013): 282-301.
Worrall, Anne, and Clare Hoy. Punishment in the Community.
Routledge, 2013.