When sentencing, the courts consider the aggravating and mitigating factors in the circumstances of the offence and the offender in order to reach an appropriate sentence. The prosecution bears the onus to prove aggravating factors beyond reasonable doubt and the defence bear the onus to prove mitigating factors on the balance of probabilities.

Section  21A(2) of the  Crimes (Sentencing Procedure) Act 1999 (NSW) set out the aggravating factors, they include but are not limited to:

• the victim was a public servant,
• the offence involved the actual or threatened use of violence,
• the offender has a record of previous convictions,
• the offence was committed in company,
• the offence was committed in the presence of a person under 18,
• the offence was committed in the home of the victim,
• the offence involved cruelty,
• the offence was committed without regard to public safety,
• the actions of the offender involved risk to national security,
• the offence involved a grave risk of death to another person,
• the offence was committed while the offender was on conditional liberty in relation to an offence,
• the offender abused a position of trust or authority in relation to the victim,
• the victim was vulnerable,
• the offence involved multiple victims or a series of criminal acts,
• the offence was part of a planned or organised criminal activity.

Section 21A (3) of the  Crimes (Sentencing Procedure) Act 1999 (NSW) set out mitigating factors, they include but are not limited to:

• the injury, emotional harm, loss or damage caused by the offence was not substantial,
• the offence was not part of a planned or organised criminal activity,
• the offender does not have any record (or any significant record) of previous convictions,
• the offender was a person of good character,
• the offender is unlikely to re-offend,
• the offender has good prospects of rehabilitation, whether by reason of the offender’s age or otherwise,
• the remorse shown by the offender for the offence, but only if:
  1. the offender has provided evidence that he or she has accepted responsibility for his or her actions, and
  2. the offender has acknowledged any injury, loss or damage caused by his or her actions or made reparation for such injury, loss or damage (or both),
• the offender was not fully aware of the consequences of his or her actions because of the offender’s age or any disability,
• a plea of guilty by the offender.

In R v Holten [2005] NSWCCA 408, the court stated that it is important that sentencing courts give careful consideration to the aggravating factors in s21A(2) Crimes (Sentencing Procedure) Act 1999 (NSW)  to determine not only whether they are available as a matter of law but also whether they arise on the facts of the case. In R v Tadrosse (2005) 65 NSWLR 740 it was held that when a judge is considering aggravating factors, the offender’s legal representative should be given the opportunity to persuade the judge that the aggravating circumstances should not be taken in to account.

Submissions on sentencing by solicitors addressing aggravating and mitigating factors can make the difference between the offender getting a Community release order, Community correction orders, Intensive Correction orders or a prison term.

Pannu Lawyers are located conveniently close to Blacktown Local Court and appear daily in Local Court of NSW, District Court of NSW and the Supreme Court of NSW. If you are charged with criminal offences and/or traffic offences, call our office on 02 9920 1787 to make an appointment.