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Aggravating and mitigating circumstances

Factors affecting a sentencing


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