decision A magistrate or judge must take into account individual factors: The facts of the offence The circumstances and seriousness of the offence Certain subjective factors about the offender themselves
Part 3 of the Crimes (Sentencing Procedure) Act 1999 (NSW) sets out numerous factors for judicial officers to consider:
Aggravating factors circumstances that make the offence more serious and can lead to an increased sentence Mitigating factors circumstances that make the offence less severe and can lead to a reduced sentence Any other objective or subjective factor that affects the relative seriousness of the offence (objective refers to the crime, subjective refer to the personal state of mind of the offender) Whether the accused pleads guilty Whether the offender assisted law enforcement authorities A victim impact statement from victims of the offence
Not all aggravating and mitigating factors automatically mean an increased or reduced sentence their relevance will depend on the circumstances of each case. Aggravating factors These are factors that somehow make the offence more serious or severe.
They are likely to result in an increased sentence
They can relate to the: way the offence was committed characteristics of the victim factors relating to the offender
They usually make offences less excusable or more appealing e.g. Gratuitous violence (excessive amount of violence carried out for no reason) Aggravating factors Some aggravating factors include: Offence: if it involved weapons, violence or cruelty, or threat of them if it caused injury, harm or damage if motivated by hatred or prejudice if committed in the company or involved organised crime Victim: If the victim was vulnerable If the victim was targeted for their occupation If their were multiple victims Offender: If the offender abused a position of trust or authority when committing the offence If the offender is a re-offender or has any prior convictions Mitigating factors
Mitigating factors involve circumstances that may work in the defendants favour by explaining the cause of their conduct.
Examples: showing remorse for what they did, one-off occurrence
Mitigating factors
They are usually subjective factors about the mind of the accused or their behaviour and can include evidence that:
The offender is of good character or does not have prior convictions The offender is youthful or inexperienced and easily led The offender pleaded guilty or assisted police The offender has shown honest remorse or has good prospects of rehabilitation and is unlikely to reoffend The offender was somehow provoked or was acting under duress
William E. Patterson v. Robert A. Gunnell, Warden, Federal Correctional Institution, Danbury, Connecticut, and U.S. Parole Commission, 753 F.2d 253, 2d Cir. (1985)