Before a court passes sentence, if someone pleads guilty or is found guilty of a traffic or criminal offence, that person or their lawyer will be given an opportunity to provide the court with their story as to what brought about the incident and their personal circumstances. This is called presenting a “plea in mitigation”.

A plea in mitigation is important as it is an opportunity to provide information to the court that could help someone guilty of an offence when the court decide an appropriate sentence. As part of a plea in mitigation, someone guilty of an offence may explain why they committed it, their background and personal circumstances. Submissions can also be made about the sentence that the court could impose. For example, if the court is considering a fine it would be useful for them to know that the person is unemployed so that they may choose a more suitable punishment like community service.

As a plea in mitigation can be an important part of the sentencing process, there are 5 things to address when providing your plea to the court. Its purpose is to seek to ‘mitigate’ or ‘reduce’ the sentence to be imposed.

1. At what point should I admit guilt to an offence?

Good mitigation begins with pleading guilty to the matter at the time you have to enter your plea. If you are unsure of your position to the charge you should seek an adjournment (remand) of the matter to another date to seek legal advice. The court will grant this and it does not effect the benefit you obtain from an early plea of guilty if you later decide to do that.

Obtaining maximum credit for a guilty plea can only be guaranteed if you plead guilty when you first enter a plea. It is important to seek legal advice at the earliest convenience to ensure you act correctly from the outset.

In some instances guilt will be established easily and a plea should be entered immediately. From here a solicitor can assist in ensuring the best outcome is reached.

Other matters are more complex. For example, where grievous bodily harm has been alleged you may feel there is no defence to your actions, but the evidence may not be as clear. In such occasions lesser charges of assault may be pursued. An early plea may see you plead to a more serious charge without needing to. In these more complex matters it is important to seek legal advice to ensure the best outcome.

2. Is there a mandatory sentence?

When it comes to the sentencing of an offender, the options available to the court will depend on the offence that has been committed. For some offences the court has no discretion and must impose a minimum fine or term of imprisonment. A plea in mitigation will then be centred on ensuring that the sentence does not exceed such minimum.

As each offence is different, it is important that you seek legal advice about the possible sentence before you appear in court.

3. What other orders can the court make?

Once you are aware of the charges and any mandatory sentencing, it is important to evaluate what orders the court may consider. This ensures the information you provide in mitigation is relevant to the orders the court makes. For example, being the main household provider in a family unit may be of assistance where a prison term may be imposed but is irrelevant where a court will order a fine.

Depending on the circumstances the court may also order you to:

  • pay court costs;
  • pay compensation to victims
  • forfeit property to the police or the owner
  • have your license cancelled or suspended
  • make you subject to a spent conviction order

4. Have I planned a structured plea without clique’s or antagonising the prosecution?

Your plea has to be acceptable to the Crown. As much as you may like your plea to rubbish the prosecutions witnesses and accept the bare minimum of guilt, this will often prove detrimental to your case. It is important to be polite. When you plead guilty you must agree to and accept the police/prosecutors statement of facts that occurred.
To ensure that your plea includes all the relevant information and does not admit too much, it is import to seek legal advice.

Keeping in mind the sentences that may be relevant, this is not the time to bring out the onion and metaphorical mini violin. Cheesy lines like

“ Deep remorse…can’t excuse but can explain… reached cross-roads of his life…”

will not impress the judge or act as a good mitigation.

With the help of a lawyer, a well formulated plea can significantly reduce penalties’, prison time or long term impacts on your life.

5. Collect relevant information and references

After you have plead guilty and know what sentencing and orders may be applicable to your case it is important to collect relevant information before your sentencing date. If you have considered the earlier steps and been strategic about what you plead guilty to then the speech itself is less important.   With the assistance of a lawyer the collecting of all relevant information will be the final step.

You need to explain to the court your antecedents; that is your personal circumstances that brought you to the position in your life that caused you to commit the offence. Details such as that you are otherwise of good character (written character references), no prior convictions, your charitable or volunteer work, your good employment history, your family situation and any tragedy or issue that brought you to a bad point in your life are all types of relevant information to address the court on.

Working with these five steps and the guidance of a lawyer, you will be more confident in presenting a relevant and sincere plea of mitigation. If you have committed or been accused of an offence Lynn & Brown Lawyers can assist you.


About the authors:

This article has been co-authored by Haley Graydon, law clerk, and Steven Brown director at Lynn & Brown Lawyers. Steven has over 18 years’ experience in legal practice and practices in commercial law, business law and estate planning.  Haley is a currently in her final year of study at UWA and her keen interest lies within family law and estates. 


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