KK14: Factors Considered in Sentencing

Factors considered

• aggravating factors

• mitigating factors

• guilty pleas

• victim impact statements

aggravating factors

the facts or circumstances about the offender or an offence that can increase the seriousness of the crime or the offender’s culpability, meaning that a more severe sentence should be imposed

examples of aggravating factors

• the victim was vulnerable: very old or young

• the offence involved the actual or threatened use of violence, explosives or weapons

• the offence was committed in the presence of a child under 18 years of age

• the offence was committed in the home of the victim of any other person

• the offence occurred when the offender was on a CCO or out on bail

• the offender has committed the same crime before

• the injury, emotional harm, loss or damage caused by the offence was substantial

• the offender was planning to commit the crime

• the occupation of the victim (e.g., police officer, emergency services worker)

• the offence was motivated by hatred for or prejudice against a group of people which the offender believed the victim belonged

• lack of remorse is NOT an aggravating factor – courts have established this.

mitigating factors

are facts or circumstances about the offender or an offence that can decrease the seriousness of the crime or the offenders culpability, meaning that a less severe sentence should be imposed

examples of mitigating factors

• the injury, emotional harm, loss or damage caused by the offence was not substantial

• the offender was provoked by the victim

• the age of the offender or if they are mentally capable

• no criminal record

• the offender was a good person of character

• unlikely to reoffend

importance of these factors

• the sentencing judge must take into consideration the aggravating and mitigating factors specific to a case when sentencing the offender

• based on these factors, the judge will make an informed decision regarding the most appropriate sanction to be handed down (and for what amount if a fine or how long if a CCO or imprisonment)

guilty pleas + legislation

Sentencing Act 1991 from March 2008 require Victorian courts, when sentencing an offender who pleads guilty, to provide a specified sentence discount

• A guilty plea is when an offender formally admits guilt, which the court takes into account during sentencing

• whether an offender pleads guilty and, if so, when (timing) they enter the plea in the case matters

• early guilty plea: a plea entered at an early stage, before a trial or hearing, is generally seen as more favourable

  impact on sentencing:

  • a guilty pls made early in the process generally reduces the severity of the sanction the court imposes

  • it acts as a mitigating factor, signalling the offenders remorse and accountability

  • demonstrates that the offender is willing to accept responsibility for their accounts and the offence

victim impact statement

• a victim impact statement contains information detailing the impact of the offence on the victim and of any injury, loss or damage suffered by the victim as a result of the offence

it can detail:

• physical injury

• psychological or emotional damage

• financial loss and property damage

• It is a voluntary statement made by a victim to the court during sentencing (which occurs AFTER the offender pleads or is found guilty).

• The aim of a victim impact statement is to help the judge or magistrate understand how the crime has affected the victim.

• It is NOT an aggravating factor.
  A victim can either read the statement in court themselves, or request that a person on their behalf reads it (and the court approves).

• promotes access – victims involved in sentencing + have their say