Once a person has been convicted of an offence, the Court in all criminal proceedings has to decide on the appropriate sentence. Leading up to this decision, the Court will hear from both the Prosecution and the Defence. The Prosecution will typically submit a sentence that is apt in their view. The Defence is then entitled to make a plea in mitigation.
We shall cover the following topics in this article:
- What is a Mitigation Plea?
- Types of Mitigating Factors
- What Mitigating Factors Should You Use to Get a Lighter Sentence?
- 2 Mistakes to Avoid in Mitigation Pleas
- What Your Criminal Defence Lawyer Can and Should Do For You
What is a Mitigation Plea?
A mitigation plea is the Defence’s submission of facts, caselaw, and sentencing benchmarks to the Court in an effort to secure a lighter, or more lenient sentence for the accused person.
A mitigation plea is usually delivered orally in Court, and may be supported by a written mitigation plea. Here at IRB Law, we strive to furnish the Court with a written mitigation plea, because it provides structure, is useful to the Court, and most importantly, gives the Court more time to carefully consider the facts in support of a lighter sentence.
The Prosecution typically raises aggravating factors in its submissions – factors that support a heavier sentence. The Defence usually tries to soften the blow of these aggravating factors and highlight mitigating factors to the Court to secure a lighter sentence.
Types of Mitigating Factors
Mitigating factors can generally be divided into two broad categories:
- specific mitigating factors; and
- personal mitigating factors.
Specific mitigating factors are factors that would reduce the seriousness of the particular offence committed. These include factors like the nominal (or minor) nature of the loss or damage suffered, the fact that the accused person was only an accomplice, the fact that the accused was provoked, etc. These specific mitigating factors are very wide-ranging and highly specific to each particular offence being dealt with by the Court. A skilled defence lawyer should be able to canvas the caselaw and sentencing benchmarks and practice to identify the exact mitigating factors appropriate for it to raise to the Court to obtain a lighter sentence for his clients. Specific mitigating circumstances may differ from offence to offence and shall not be considered at length in this article.
Personal mitigating factors, on the other hand, are more specific to each accused person before the Courts. We shall discuss this in the following section.
What Mitigating Factors Should You Use to Get a Lighter Sentence?
The following is a list of factors normally raised in criminal defences in Singapore. Do take note that the list of factors presented is not exhaustive and may differ from case to case. We also highlight factors that are not normally accepted as mitigating factors by the court in criminal proceedings. Nevertheless, in exceptional circumstances, and especially with the right criminal defence lawyer making the mitigation plea, the Court may take these factors into account in meting out a lighter sentence.
The accused person’s background:
The defence usually presents facts that
- explain (not excuse) the accused person’s offence. This could include the person’s childhood, his family, lack of proper upbringing, lack of education, etc., and
- show that the current offence is an anomaly and a deviation from the accused person’s usual good conduct and character.
Do also take note, as explained in “Equality in Sentencing“, that the following factors are not considered mitigating factors:
- social status and standing, and
- good education and prospects.
The accused person’s character
Here, the Defence highlights previous good character to persuade the Court that the accused person will not repeat his mistakes. Points frequently highlighted are:
- the lack of prior convictions (first-time offender) and general character traits.
- Notable social contributions and/or distinguished public service
Attitude and behaviour after the offence has been committed
The Defence usually highlights factors that show that the accused person is genuinely remorseful and repentant and whether he is willing to make amends (to the victim and society at large). Facts typically raised are:
- An early plea of guilt – this suggests remorse and is a significant mitigating factor.
- Cooperation with the investigators and the authorities.
- Voluntary surrender to the authorities.
- Volunteering information to the authorities on other offences and/or offenders.
- Restitution – paying the victim some compensation, returning stolen goods, etc.
- Young offenders: Convicted persons below the age of 21 with no prior convictions are usually dealt with less strictly by the Courts because rehabilitation is considered most apt for young persons. Imprisonment is the last resort.
- Elderly offenders: While there is no general rule allowing for elderly accused to be dealt with more leniently, in exceptional cases, the Court will take this into account as a mitigating factor. It is also useful to keep in mind that those above the age of 50 years are not liable to caning.
- Physical health: the ill-health of the accused person may in exceptional circumstances warrant a lower sentence, especially when the health problem is terminal, or when the accused person’s health is better managed outside of prison.
- Mental health: The weight given by the Court to this factor may differ from case to case. Take note that mere intellectual disability is not in and of itself a mitigating factor.
- Pregnancy: While this is not a mitigating factor per se, in exceptional circumstances, especially when the offence committed was a minor one, it may be raised to persuade the Court to mete out a lighter sentence.
The circumstances leading to the offence
- Financial hardship: Save for very exceptional or extreme circumstances of poverty and need, financial hardship is not normally accepted by the Court as a mitigating factor.
- Intoxication: As a starting point, voluntary intoxication is not a mitigating factor, and may even be an aggravating factor. However, in exceptional circusmtances, if it can be demonstrated that the intoxication was involuntary or uncharacteristic of the accused person, the criminal defence lawyer may be able to persuade the court why it should be treated as a mitigating factor.
- Drug or alcohol addiction: This factor has consistently been disregarded as a mitigating factor.
- Entrapment: Entrapment may be a mitigating factor if the conduct of the agent provocateur induced the commission of the offence, which the accused would not have committed or would have been unlikely to commit had the agent provocateur not acted as he did.
- Ignorance of the law: As a rule, ignorance of the law is not a mitigating factor. Nevertheless, it could be srgued, especially if the offence in question is minor, does not disclose any moral or ethical blame, and was unwittingly committed by the accused person, that this factor should be taken into account as a valid mitigating factor.
- Immediate, urgent and severe crisis: This may be raised as a mitigating factor if the facts of the case warrant it.
Effect of sentence
- Work record and career prospects: The Court has consistently ruled this to be irrelevant as a mitigating factor, unless there are exceptional circumstances.
- Hardship to the accused person’s family: This is normally not accepted as a valid mitigating factor unless there are exceptional circumstances.
- Time the accused spent in custody: The court has the discretion to take into account any period the accused has already been in remand when deciding the appropriate imprisonment term. This may even include time spent behind bars overseas pending extradition.
- Delay in prosecution: When the delay has been significant and where the accused did not add to the delay, the court may exercise its discretion in giving a reduced sentence.
2 Mistakes to Avoid in Mitigation Pleas
An experienced criminal defence lawyer will exercise care and caution to steer clear of the following mistakes in a mitigation plea:
- Contradicting the Statement of Facts: The mitigation plea should not contain any statements, facts or arguments which contradict any fact in the Statement of Facts (which the accused person would have already agreed to before sentencing). If it does contradict any fact, the matter may proceed to trial all over again, and an adverse inference may be drawn against the accused person.
- Qualifying the guilty plea: This point is related to the one above. In the mitigation plea, the Defence should not say anything which qualifies the guilty plea, or in other words, which say or suggest that the accused person was not as guilty as he was made out to be. Once again, is there is indeed a qualification of the guilty plea, the matter may proceed to trial all over again.
What Your Criminal Defence Lawyer Can and Should Do For You
Being convicted for an offence or pleading guilty to it is not the end of the world. There is still room for accused persons to ask for leniency through the mitigation plea.
A good criminal defence lawyer should make the accused person face up to the aggravating factors and weaknesses in the accused person’s case. Crucially, the criminal defence lawyer should not dismiss or flippantly disregard aggravating factors. He or she should be able to address the Court with reference to sentencing principles such as deterrence, prevention, proportionality. The lawyer should also be able to analyse and argue based on the public policy considerations relevant to the offence before the Court.
Here at IRB Law, we have an excellent set of criminal defence lawyers who have distinguished themselves in many criminal proceedings and trials in Singapore. They have consistently presented reasoned, cogent and persuasive mitigation pleas to secure lighter sentences for their clients.
Do give us a call today for professional criminal defence representation.