A mitigation plea requires thorough preparation and
attention to details. The following five steps should be considered
when preparing a plea.
Step one: Ascertain the sentencing options
To begin with, ascertain the court’s possible sentencing powers and
options. For example:
1 Whether a minimum sentence is prescribed for the
offence?
2 Whether a custodial sentence is mandatory?
3 Whether driving disqualification, caning, probation, reformative
training, preventive detention or corrective training are
applicable?
Step two: Consider the relevant factors
You should then critically assess the information you have gleaned
from the prosecution (such as the Charge, the First Information
Report, the Cautioned Statement, Statement of Facts, if available);
and instructions taken from your client so as to ascertain the
relevant aggravating and mitigating factors.
When preparing the mitigation plea, you should seek to: (i)
highlight the salient mitigating factors; and (ii) soften the
adverse impact of the aggravating factors.
Mitigating factors can generally be divided into two broad
categories:
1 specific mitigating factors; and
2 personal mitigating factors.
Specific mitigating factors would be those which would reduce the
seriousness of the particular offence committed. These include
factors like minor loss or detriment suffered by victim,
subordinate role of the accused, provocation received from the
victim etc. Obviously, the list of specific mitigating factors is
wide-ranging. A more comprehensive treatment of such mitigating
factors can be found in Sentencing Practice in the Subordinate
Courts where the factors are considered alongside the specific
offences they relate to.
Personal mitigating factors would be those peculiar to the accused
which would merit leniency. The following list of mitigating
factors is non-exhaustive and would depend on the particular
idiosyncrasies of the accused and the particular circumstances of
each case:
1 The accused’s background and attitude. Here, you are
looking for circumstances which might: (i) explain your client’s
offence (eg childhood, family, upbringing, lack of education etc);
or (ii) demonstrate his past good character to prove that the
present offence is an aberration of conduct. The court is
interested to know whether your client is genuinely contrite,
whether he is willing to make amends, and whether he is likely to
re-offend.
2 The accused’s previous good character.
a First-time offender. Note that generally, more credit
is given to positive evidence of an accused’s good character as
opposed to the absence of prior convictions.8
b Worthy social contributions or distinguished public
service. Courts have been known to give credit to accused persons
for distinguished public service or services to the
community.9
3 The accused’s behaviour subsequent to offence.
a Plea of guilt. A timeous plea of guilt suggests
genuine remorse and is a mitigating factor.10
b Co-operation with authorities. Voluntary surrender,
co-operation with the police or prosecution may afford a reason for
mitigation of sentence.11
c Restitution. Voluntary restitution may be suggestive
of remorse, good character or reformation.12
d Generosity. The fact that the accused had been
generous with the proceeds of his crime is irrelevant and not a
legitimate mitigating factor.13
4 The accused’s age.
a Young offenders. Accused persons below the age of 21
with no antecedents are usually dealt with sympathetically bearing
in mind the potential for rehabilitation. Imprisonment is usually a
sentencing option of last recourse, and is generally reserved for
cases where the offence is serious, or where the offender has shown
himself to be unresponsive to earlier efforts at
rehabilitation.14
b Elderly accused. There is no general rule mandating
the giving of discounts for offenders of mature years, save in
exceptional cases.15
5 The accused’s physiological condition.
a Ill-health. Ill-health of the accused may in
exceptional circumstances be a ground for reducing
sentence.16
b Mental condition. The fact that the accused is
suffering from a mental disorder is relevant but its bearing would
depend on the circumstances of each case.17 In the context of
intellectually disabled offenders, it should be noted that these
persons are not treated differently for the purposes of sentencing,
but are instead punished in like manner as other offenders.
Similarly, the appropriate sentence to be passed would necessarily
turn on the factual matrix of each case.18
c Pregnancy. Pregnancy typically would not justify a
reduction in sentence.19 However, in exceptional cases where the
offence is not very serious, you may attempt to persuade the court
why it should do so as an act of mercy.
6 The circumstances that led to the accused committing
the offence.
a Financial hardship. Save for very exceptional or
extreme circumstances, financial hardship cannot be relied upon as
a mitigating factor.20
b Intoxication. Voluntary ingestion is not a mitigating
factor.21 For violent or serious offences, voluntarily intoxication
may even be considered an aggravating factor. However,
exceptionally, if it can be demonstrated that the intoxication was
involuntary or out of character, you may attempt to persuade the
court why it should be treated as a mitigating factor.
c Drug or alcohol addiction. The fact that the accused
committed the offence to feed an addiction is of no
mitigation
value.22
d Entrapment. Entrapment is relevant where the conduct
of the agent provocateur induced the commission of the offence,
which the accused would not have committed or would have been
unlikely to commit.23
e Ignorance of the law. Ignorance of the law is not a
mitigating factor.24 An argument could perhaps be made that in an
offence that contains little or no moral blame, if the accused
commits the offence unwittingly, ignorance of the law should be
treated as mitigatory.25
f Other circumstances. It goes without saying
that the possible circumstances that could lead an accused to
commit an offence are limitless and it is pointless to generalise,
save to say that you should ascertain if there was any immediate
crisis or extraordinary circumstances in your client’s life that
caused him to commit the
particular offence.
7 The likely effect of the sentence on the accused or
his family.
a The accused’s work record and work prospects. In
exceptional circumstances, loss of employment or a career are part
of the circumstances the courts take into account in assessing
sentence.26 The weight attached would depend on the
circumstances.
b Hardship to the accused’s family. Hardship to the
accused’s family is not normally a legitimate mitigating factor.27
However, in exceptional or extreme circumstances, such hardship may
be taken into account.28
8 Time the accused spent in custody. The court may take
into account any period the accused has been in remand when
determining the length of an imprisonment term.29 The court’s
discretion extends to considering the period of time that the
accused has been in custody overseas, pending extradition.30
9 Delay in prosecution. Delay in prosecution in itself
is not a mitigating factor but in appropriate cases, where the
delay has been significant and where the accused did not add to the
delay, the court may exercise its discretion in giving a reduced
sentence.31
You should face up to the aggravating factors and weaknesses in
your client’s case. It will be unwise to pass them by as though
they did not exist because they will not disappear. You must be
prepared to deal with them as best as you can, as they are likely
to be weighing on the mind of the court. To achieve this, you
should be familiar with the sentencing principles of deterrence,
prevention and retribution,32 and be able to address the public
policy considerations relating to your client’s offence.
Additionally, if you give your client’s case due consideration,
aggravating factors often can be balanced off or negated when
weighed against other mitigating factors. It is your task to see
that the balance achieved is the most favourable that your client
can reasonably expect in the circumstances. A distinction should be
drawn between ‘aggravating factors’ and features which are part and
parcel of an ‘aggravated offence’ eg use of weapons, hurt
caused
etc.33
The following is a checklist of some matters you should consider
when taking your client’s instructions and in your preparation of
the mitigation plea:
Charge
The offender may face one or several charges and it is relevant to
know if there has been reduction in the charge or if any charges
are withdrawn or being taken into consideration for the purposes of
sentencing.
Circumstances
The particulars in each case will vary and there is no set recipe
for what is mitigating but attention should generally be given to
the level of pre-meditation, type of mens rea, degree of
culpability involved.
Consequences
The offence will often be regarded in the context of the
consequences of the offender’s criminal act and it is useful to
highlight facts that can mitigate the result or impact of the
offence eg minor injury, low value, small quantity.
Remorse
There is no meter to measure the regret of an offender and any act
that can be used to gauge genuine repentance will be of assistance
eg co-operation with police, admission of guilt, full
restitution.
Psychiatric
The presence of any psychiatric condition is always relevant
because an offender suffering from any genuine illness that would
compromise or impair judgment should not be held accountable to the
same standard as another offender.
Medical
While the medical condition of an offender does not excuse any
criminal act, the fact that your client already suffers from a
physical or physiological illness is relevant in so far as it adds
to the personal background of the offender.
Profile
This is your opportunity to present the personality and character
of your client so that he/she is not regarded as a mere charge
number or NRIC number and this is done by outlining the age,
family, educational and professional background of the
offender.
Antecedents
The presence of previous convictions must be determined since you
do not get a copy of your client’s record from the CRO and
conversely, the absence of any antecedent must be confirmed so as
to be highlighted.
Sentence
The offender may not know the possible sentencing options and so,
part of your duty is to explain these options (eg probation,
reformative training, corrective training, preventive detention
etc) and elicit a position to present to the court.
Miscellaneous
Details (eg time spent in custody/remand, the sentence imposed on
an accomplice, whether the accomplice has any antecedents, and the
position on exhibits seized) should be clarified so as to present
your client’s instructions
to the court.
Step three: Contemplate the desirability of additional materials or
witnesses
You should also address your mind to the desirability of: (i)
obtaining additional or supporting materials (eg testimonials,
awards, school report cards, medical reports, psychiatric
assessments etc); (ii) calling character witnesses; and/or (iii)
inviting the court to call for a pre-sentence report for your
client during mitigation to corroborate the mitigating factors that
you intend to raise. You should obtain the additional materials
expeditiously, well in advance of the date on which the plea in
mitigation is to be made.
Generally, character evidence in the form of relevant written
testimonials will suffice. A really good character witness can
sometimes do more for your client than your eloquence and argument.
However, a character witness should never be called before you have
had the opportunity to size up his usefulness and reliability. You
should interview the witness to: (i) ensure that he supports the
argument you intend to make; and (ii) assess the impression he is
likely to make to the court.
Step four: Assess the likely penalties
After attending to the above, you should then consider the
sentencing precedents and make a realistic assessment of the likely
penalties that the court might impose for the offence in question,
bearing in mind the aggravating and mitigating factors peculiar to
your client’s case. Veteran counsel often rely on their familiarity
with sentencing ‘benchmarks’ or trends, and past experiences with
the sentencing judge. Less experienced counsel are advised to draw
upon such experience of their brethren. Additionally, ready and
invaluable sources of such information are Sentencing Practice in
the Subordinate Courts, jointly published by the Subordinate Courts
and LexisNexis, and ‘Results of Magistrate’s Appeals Database’
which is part of the ‘Legal Workbench’, the online research
database accessible via www.lawnet.org.sg.
Having ascertained the likely penalty, you should then discuss this
with your client candidly and obtain his approval to submit on the
ideal penalty (or range) for the court’s consideration.
Step five: Conceptualise and structure a compelling argument
Once you have realistically appraised the sentencing options, are
conversant with the factual circumstances of the case, and have
determined the ideal penalty (or range) in the light of sentencing
precedents, your final task is to cast the information gathered
into a reasoned and coherent argument for the court’s
consideration.
As in any other forms of advocacy, you should seek to advance a
compelling argument in your mitigation plea, one that would make
the court feel intellectually uneasy in rejecting.
In crafting the argument, you should bear in mind to the following
Do’s and Don’ts.
DO be:
1 Selective. Be discerning in deciding whether a point
is worth making or whether its downside outweighs its potential
benefit. Advance only those points which:
a are cogent and persuasive;
b can be demonstrated as actually bearing upon the
offence your client has committed; and
c support the plea that he should be dealt with in a
certain way.
Whilst it is your responsibility to
highlight to the court the relevant guideline judgments and
sentencing precedents, you should be selective when citing
sentencing authorities as most cases turn on their own
facts.34
2 Reasoned. Any points made must be dictated by logic.
Avoid the irrelevant, the sentimental and the absurd.
3 Accurate. Ensure that the facts are accurate and
deductions from them trustworthy. Never make an assertion that
cannot be supported by reference to evidentiary material.
4 Original. Be mindful that the court would have previously heard
countless mitigation pleas. Avoid clichés. Search for an original,
attractive and interesting approach.
5 Clear. Suggest to the court the desired outcome.
There is no reason why this cannot be done. In fact, the court
welcomes such submissions, provided that it is done tactfully and
rationally. If you are able to suggest a realistic sentence that
the court eventually accepts, you would have discharged your duty
to your client and would have been of assistance to the
court.
6 Realistic. For instance, it is probably quite
pointless asking for probation if your client had re-offended
whilst on probation or had previously served a jail term.
DON’T be:
1 Equivocal. Be careful not to qualify the accused’s
plea of guilt by disputing the mens rea and actus reus of the
offence. Do not appear to be implying that the accused is not
responsible for the offence.35
2 Scandalous. Desist from making allegations that are
scandalous or calculated to vilify or insult
any person.36
Preparing written submissions
You should prepare your mitigation plea in writing. This is because
written submissions will:
1 save the court’s time in recording the plea in
mitigation in long hand;
2 afford the court ample opportunity to evaluate the
arguments; and
3 put the arguments on record.
You can structure your arguments under topical headings. A possible
arrangement could be as follows:
1 Your client’s family and background. Here, your
client is presented as a human being and not just
another
criminal.
2 Background facts to the offence. You should focus on
highlighting additional facts that give the court a better
understanding of the circumstances surrounding the offence while
taking care not to make claims that are inconsistent with the
Statement of Facts (for example, in a case of rioting, claiming
that your client did not assault the victim when the Facts state
that he did). This also should not be a repetition of the Statement
of Facts. You may introduce the related specific mitigating factors
under this heading.
3 The mitigating factors. This is where the personal
mitigating factors relevant to your client
are introduced.
4 The prayer. This is where you can conclude by showing
the court ‘the way home’.
The importance of making a reasoned argument cannot be
over-emphasised. The crucial point to note, in preparing written
submissions, is that the facts should always be subordinate to a
cogent argument. The written submissions should never be a
pigeon-holing exercise, where facts are simply arranged under
topical headings as a series of assertions unsupported by
reasons.
If you have taken pains to base your written submissions on a
realistic appraisal of the facts, as well as sentencing principles
and precedents, the court will have to give due consideration to
the cogency of your arguments.
