After a person is found guilty of an offence, the Court will decide on the punishment. The prosecution will usually submit a sentence which their office sees as befitting of the offence. In response, the offender or his lawyer is entitled to make a plea in mitigation. The Court will pass sentence after hearing the prosecution’s submissions, and the offender’s mitigation plea.
What is a Mitigation Plea?
A mitigation plea is a submission of facts and law to the Court for a lower sentence. The aim is to explain why the offender’s sentence ought to be lower within the bandwidth of sentencing benchmarks, after considering all circumstances. A mitigation plea should not be focused only on the offender’s mitigation factors, but also to assist the Court in finding the most appropriate sentence.
The basic framework of a mitigation plea would include:
- Factual background surrounding the offence
- Mitigating factors about the accused and the offence
- Reference to sentencing benchmarks
A mitigation plea is usually done orally in Court and may be supported by a written submission. A written mitigation is encouraged, as it keeps the submission focused and structured, is helpful reference when making oral submissions, and gives the Court an impression of the mitigation plea even before the hearing.
A written mitigation plea should be submitted before the hearing, and the important points highlighted during oral submissions. An offender who is acting in person may request for an interpreter if he is not confident in the English language.
What are Mitigating Factors?
Mitigating factors are facts and circumstances that distinguish an offender from cases where the punishment was severe and likened to cases where the punishment is lenient. Mitigating factors are very fact sensitive, and depends on the specific offence.
In general, an offender will want to highlight the following factors:
- The offender’s role and participation
- The severity of the injury, damage or loss caused
- Hardships that lead the offender to the offence
- Medical conditions with a causal connection to the offence
- Cooperation with the authorities
- Absence of criminal record
- Acts of remorse
The offender’s personal background and circumstances are generally not mitigating factors and will have very little relevance to the offence. However, it is often helpful to inject personality of the offender into the mitigation plea. A mitigation plea may highlight the offender’s following history:
- Family background
- Education or employment track record
- Evidence on character and attitude
- Potential for rehabilitation and reformation
- Charitable work
- Recognition of contributions to society
In contrast, the Prosecution will submit on aggravating factors, to liken the offender’s case to preceding cases where the Court gave a heavier punishment.
At this juncture, it is apposite to note that a mitigation plea should be careful not to contradict with the Statement of Fact, or to qualify an offender’s guilty plea. The Statement of Facts is a summary of the facts prepared by the Prosecution to support the charge. It is read to the accused after the accused indicates his wish to plead guilty, and before the accused pleads guilty. It may contain aggravating factors of the offence, and the accused should request for a copy to study before agreeing, lest the accused changes his mind on an aggravating factor later during mitigation.
How to Craft a Mitigation Plea?
The first step of mitigation is understanding the offence, the mitigating and aggravating factors of that offence, and the sentencing benchmarks in relation to the offence. It is helpful to look at the Charge, the First Information Report, the Cautioned Statement and the Statement of Facts (where available) to identify mitigating factors. With the sentencing framework in mind, the next step will be for the accused person to supply his lawyer with the relevent information to craft the plea.
A mitigation plea should also try to distinguish the aggravating factors where possible, and minimise the impact of these aggravating factors on the mind of the Court. Reference to written testimonials, awards, school report cards, medical reports, psychiatric assessments, and character witnesses may be useful.
In most cases, it is also helpful to refer to the sentencing principles in relation to the offence.
What are Sentencing Principles?
There are four principles guiding the sentencing process:
#1 Retribution
Where the sentencing is focused on retribution, the offender is punished and made to suffer for the harm that he has caused to the victim and/or society. The offender’s culpability, the seriousness of the offence and the damage or injury caused are relevant factors.
#2 Deterrence
There are two types of deterrence under this principle:
- When considering general deterrence, the offender is punished to discourage other members of society from committing the same or similar offence. Here, the Court punishes the offender to set an example to society.
- When considering specific deterrence, the offender is punished to dissuade the offender from re-offending. This factor is relevant when the offender is likely or has a history to re-offend – for example in drug cases.
#3 Prevention
In some cases, the offender is a menace or danger to society. The Court will then consider a custodial sentence to remove the offender from society so that the offender will not be able to cause further harm.
#4 Rehabilitation
In some other cases, the offender may be capable of reform. In such cases, the Court will factor rehabilitation into the punishment, so that the offender may return to society as a productive member.
Identifying Sentencing Benchmarks for the Offence
The Court does not sentence an offender arbitrarily. It refers to previous cases of the same offence, and tries to fit the present offender within the sentences that were made in the past. Often times, there is bandwidth which the offender falls into.
A useful resource for information on precedents is the “Sentencing Practice in the Subordinate Courts” and ‘Results of Magistrate’s Appeals Database’ which is part of the ‘Legal Workbench’, a research database accessible via www.lawnet.org.sg.
Some offences have a mandatory or minimum punishment – for example, a minimum custodial sentence for theft in dwelling, and mandatory imprisonment and caning in certain rape cases. In such cases, there will be a hard limit to the mitigation, and the offender should attempt to reduce the charge before pleading guilty.
Frequently asked questions
Will claiming trial affect my mitigation plea?
Claiming trial does not affect the mitigation plea per se. However, an offender may not be able to claim that he is remorseful after claiming trial and vigorously defending against the charge. In some instances, evidence may be adduced at trial which is prejudicial to the accused person, which would otherwise be glossed over in the Statement of Facts. On the other hand, pleading guilty at an early juncture save valuable resources for the Court in some cases, and be a mitigating factor.
My mitigation plea has contradictions with the Statement of Facts. What do I do?
In such cases, you have to negotiate with the prosecution to amend the Statement of Facts and your mitigation plea. Often times, the matters stated in the Statement of Facts are supported by witness statements and evidence gathered by the investigation officer. It takes an experienced lawyer to neutralise the Statement of Facts, so that the facts which may appear to put the offender in a bad light, are not actually relevant to the sentencing benchmarks.
Importance of a Plea in Mitigation
A mitigation plea is important, because it may be the only opportunity for the offender to interact with the Court in a meaningful way and to express himself. Hitherto, the process is focused on the charge and the criminal process – whether the accused person understands the charge, whether the Statement of Facts is admitted, whether the accused person accepts the charge. It is only during the course of mitigation that the offender has the opportunity to present himself as a person before the Court, to explain how he came be standing in the dock, and to plead for forgiveness and leniency. While it may be more personable to mitigate for yourself, mitigation also requires technical expertise to submit on the appropriate sentence, and an accused person would be advised to seek legal counsel.
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This article is written by Wayne Ong from Wayne Ong Law Practice and edited by Tessa Sim from Asia Law Network.
This article does not constitute legal advice or a legal opinion on any matter discussed and, accordingly, it should not be relied upon. It should not be regarded as a comprehensive statement of the law and practice in this area. If you require any advice or information, please speak to practicing lawyer in your jurisdiction. No individual who is a member, partner, shareholder or consultant of, in or to any constituent part of Interstellar Group Pte. Ltd. accepts or assumes responsibility, or has any liability, to any person in respect of this article.