Plea in Mitigation

Before the Judge decides on a sentence, the Duty Lawyer or your lawyer (or yourself if you don’t have a lawyer representing you) may give a “plea in mitigation”.

A plea in mitigation is a presentation of all the matters which you consider the court should know before a sentence is imposed. This is a chance for you to explain the reason why the offending took place and the circumstances around it, as well as your personal circumstances and show the Judge why all these things should be taken into account.

Take the following case as an example:

The Police Summary of Facts says:

• On the 23rd day of November 2005 at about 5.32pm, the DEFENDANT was driving east on Main Road approaching a moderate left-hand bend.
• He rounded the bend at 50-60 km/hr with the vehicle well inside the fogline, the left wheels of the vehicle left the sealed road and onto the gravel. As a result the vehicle slid sideways.
• The driver had overcorrected twice before crossing the centreline into the path of an oncoming vehicle causing them to collide. 
• Road conditions were wet at the time.
• The DEFENDANT has not previously appeared before the Court.

Usually if you have pleaded guilty and the Duty Lawyer is going to enter a plea in mitigation for you, they will explain to the Judge whether the summary of facts is agreed to and give reasons for any disagreement.  Where there is serious disagreement that could affect the sentence there may be a "fact hearing".  They will outline your personal circumstances (e.g. you have three children and need to be able to drive them to school) and financial situation.  They will usually submit to the Judge what they believe is an acceptable penalty for you in all the circumstances.  It is then up to the Judge to decide.  

The Duty Lawyer will tell the judge all the relevant circumstances from the offender's perspective (e.g. that this incident happened after the person's mother's funeral and when he was upset).  A plea in mitigation doesn't excuse the behaviour and is not a defence.  It is an opportunity for the Duty Lawyer to provide the Judge with an explanation of what happened and give another side to the story the police have told the Judge.  

It is a very good idea to take proactive action before the sentencing to show you take responsibility for your actions (e.g. enroll in a defensive driving course if you are pleading guilty to a careless driving charge or alcohol counselling if the offense involved alcohol).