#10176 - Structuring A Plea In Mitigation

Step 1:

The Objective

Identify the Starting Point of Sentencing

P.264

Establish your Objective: if found guilty, we will want D to have the most lenient sentence possible
Default Sentence: the Magistrates Court Sentencing Guidelines suggest that for an offence of theft from a shop that has little or no planning or sophistication and the good stolen are of low value (which the charge of thieving a pair of 79.99 jeans is), then then:
- starting point: Band B fine (75%-125% D’s weekly income starting at 100%)
- ranging to: conditional discharge or a low level community order

Step 3:

“the Offence”

Minimise the Impact of Aggravating Factors

P.265

Statutory

The court must treat the offence as more serious where previous convictions are present (s.143(2))
On the facts, the convictions dated 10/03/09, 12/12/09, 29/03/10 and 29/12/10 are all spent, and therefore the defence will argue that they are not aggravating factors
The convictions on 10/01/10 will be taken into consideration and could have an adverse effect on Daisy’s sentencing. The defence should argue that the situations surrounding Daisy now are different to when she was convicted for those offences (i.e. in rehab, no longer in that relationship, not on drugs, has a new boyfriend, has a child on the way)

Guidelines

None of the aggravating factors in the Sentencing Guidelines apply to Daisy’s case, i.e.:
- When committing the offence, a child was not with her
- Daisy was not subject to a banning order (including the target shop)
- Daisy was not motivated by revenge or seek to cause harm
- This was not an offence in the ‘professional sense’
- The victim was not particularly vulnerable (family shop operating on the same premises for thirty years)
- The value of the good were not high (only 79.99)

Therefore, the lack of aggravating factors will mean that Daisy has a better chance of getting a more lenient sentence

Step 4:

Offence Mitigation

The value of the good stolen were of low value

Step 5:

“the Offender”

Offender Mitigation

P.265

She’s a young girl led astray by a previous boyfriend who made her addicted to heroin which, in turn, forced her to steal to feed her addiction
She is a reformed character and has a new boyfriend who has helped her get off heroin
She is young: the court should be still trying to help and rehabilitate her, not punish her
She was not under the influence of drugs or alcohol when she was arrested
She cooperated peacefully and was not violent or abusive when she spoke to the police
She remained voluntarily at the store until the police arrived and did not run away, which she would have been free to do
She had a troubled childhood: she hasn’t seen her mother or father (who is now in prison) since leaving home at 16 (9 in the case of her father)
She has a baby on the way and doesn’t have much money; a hefty fine or a prison sentence would only serve to punish he unborn child (especially because value is so low)

Step 6:

Give a Suggested Sentence

An attempt at lowering the sentence as far as possible must be made. Take into account the court factors outlined at step one above.

The court must take into account any guilty plea (s.144):

Plea	Reduction
First opportunity	1/3 [maybe 1/5 if strong prosecution case]
After trial date set	1/4
On day of trial/during it	1/10

She doesn’t have any income and has a child on the way, therefore a fine would be unreasonable
Perhaps ask for a conditional discharge: this will mean that Daisy will not receive an immediate penalty for the offence committed, but if she is convicted of a further offence during the period of conditional discharge, she will be in breach of it
Perhaps ask for compensation to be awarded to David Jones to the effect of 79.99
If she is still struggling with drugs, then ask for a community order of rehabilitation (which will, in turn, help her family)

Therefore, the court will likely order a community order of rehabilitation because they would likely want to emphasise rehabilitation rather than punishment (s.142(1))

Plea in Mitigation e.g. II

Step 1:

The Objective

You need to go to the “Magistrates Court Sentencing Guidelines” found in the back of the book or online. The guide for this offence is on p.562. Find the Max sentence and then work your way to the starting point. Procedure is in P.264 Disqualification for Drunk driving is on p.312.

Establish your Objective: to persuade the magistrates to impose a sentence which is less severe than the “starting point” sentence. Use of the Pre-Sentence Report to Guide you on likely sentence.

Default Sentence: the Magistrates Court Sentencing Guidelines suggest that for an offence of “excess alcohol drive” whose breath test produced a 91 micrograms of alcohol in 100 millilitres of breath the Court has an obligation to punish on two offences:

1. Driving Offence = Disqualify Christina between 23-28 months as she falls within the 90-119 band in the guidelines p.562. The court may reduce the disqualification only in “special reasons” (extremely short distance (less than 10 feet) spiked drinks, and emergency) But see below at sentencing

2. The Criminal Offence: associated to the traffic offence:

Maximum: Level 5 fine (5,000) and/or 6 months imprisonment
The starting point is: medium level community order
ranging to: low level community order to high level community order

Step 2:

“the Offence”

Following the procedure set out in P.265 the next step is the “offence”. Then go to P.245 and work your way through the mitigating and aggravating factors.

Consider s.143(1) Criminal Justice Act (CJA) 2003, when sentencing and determining how serious an offence is, the court must consider:

The offender’s culpability in committing the offence:

Was there intention to cause harm?
Was Christina reckless?
Did Christina have knowledge? Or was Christina negligent

Any harm which the offence caused, was intended to cause or might foreseeably have caused

Physical injury to anyone?
Sexual violation?
Financial loss?
Damage to health?
Physiological distress?

Conclude: In the case of Christina Jones there are is no culpability and there is no harm.

Aggravating

There are 4 situation when the CJA 2003 obliges the sentencing court to treat an offence as being more serious than it would otherwise have done:

Previous convictions s143(2)
Offences committed whilst in bail s143(3)
Racial or religious aggravation s145
Hostility base on sexual orientation or disability s146

There are other aggravating factors listed in on page P.246 .

Conclude: In the case of Christina Jones there are no aggravating factors. The lack of aggravating factors will mean that Chirtina has a better chance of getting a more lenient sentence

Mitigating

The list on page P.246 continues listing the mitigating factors for the offence. The most relevant mitigating factors for Driving are found on page P.315.

Conclude: for Christina Jones some mitigating factors apply (she acted on impulse as her friends left).

Step 3:

“the Offender”

Offender Mitigation

P.265

Christina is a young person of good character and this is her first offence
Christina is a promising student
She cooperated with the police, did not refuse arrest or to retake the test
She feels remorse

Step 4:

Give a Suggested Sentence

Following the procedure set out in P.265 after step 4 you need to give the court a sentence request. The Pre-Sentence Reports P.259 is the starting point. What was said there may assist you in determining the most suitable sentence. Then go to page P.247 To see the reduction for early plea.

An attempt at lowering the sentence as far as possible must be made. Take into account the court factors outlined at step one above and look at the Pre-Sentence Reports.

The court must take into account any guilty plea (s.144):

Plea	Reduction
First opportunity	1/3 [may be only 1/5 if strong prosecution case]
After trial date set	1/4
On day of trial/during it	1/10

As mentioned above there are two sides to Christians offence:

1. Driving Offence = Disqualify Christina, can get a reduction in the length of her...

#10176 - Structuring A Plea In Mitigation - Criminal Litigation

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