Aggravating & Mitigating Factors

Aggravating factors are factors which make the crime more serious and will tend to increase the sentence.

Aggravating factors include:

• The offence involved unlawful entry into, or unlawful presence in, a home (sometimes called a "home invasion").
• The offence was committed while the offender was on bail or still subject to a sentence.
• The offence involved abusing a position of trust or authority in relation to the victim.
• The offender committed the offence partly or wholly because of hostility towards a group of persons who have an enduring common characteristic such as race, colour, nationality, religion, gender identity, sexual orientation, age, or disability; and
  • the hostility is because of the common characteristic; and
  • the offender believed that the victim has that characteristic.
• The extent of any loss, damage, or harm resulting from the offence.
• The offence was committed as part of, or involves, a terrorist act.
• The victim was particularly vulnerable because of his or her age or health or because of any other factor known to the offender.
• If there was any particular cruelty in the commission of the offence.
• The extent of any loss, damage, or harm resulting from the offence.
• Premeditation on the part of the offender and, if so, the level of premeditation involved.
• The existence of any previous convictions.

Mitigating factors are factors which make the offence less serious and will tend to decrease the sentence. They include:

• The age of the offender.
• Whether and when the offender pleaded guilty.
• The conduct of the victim.
• If there was a limited involvement in the offence on the offender's part.
• If the offender has, or had at the time the offence was committed, diminished intellectual capacity or understanding.
• Any remorse shown by the offender or if there has been any offer to make amends.
• Any evidence of the offender's previous good character.

In sentencing the Judge will look at which factors exist and how to weigh them.

Example:

David went into a shop with a gun and told the shop assistant to hand over all the money in the till. She only had $500 to give him. He says he wanted to get some money to buy Christmas presents for his children and since he lost his job he couldn't afford to buy any. The shop assistant was traumatised by the robbery and still has nightmares. After his arrest he co-operated fully with the police and entered an early guilty plea.

Outcome: Aggravating factors for David are that there would have been some level of premeditation to have a gun involved. The shop also suffered loss (the $500 taken) and there was psychological harm done to the shop assistant. Factors which will be taken into account in mitigation will be that David doesn't have any previous convictions, he was fully cooperative and he entered a guilty plea early.