MITIGATING CIRCUMSTANCES
Ill-health
Previously, serious medical conditions could impact on sentence as imprisonment could be seen as a greater burden upon those with a serious illness (R v Pope; Ex parte AG (Qld) [1996] QCA 318). However, note “with the capacity of contemporary prisons, complaints of hardship through incarceration because of particular physical conditions will assume less significance than may previously have been the position.” (R v Svensson; Ex parte A-G (Qld) [2002] QCA 472 per de Jersey)
Hardship to the family of the offender
Hardship to the family of offender may in rare instances be relevant but it must not overwhelm other considerations, such as the need for deterrence, denunciation and punishment (Le v R (1996) 2 Qd R 516). The hardship must be exceptional. Note that in D’Arrigo [2004] QCA 399 it was not.
Effect on Employment
'It is legitimate, for example, to take into account that the conviction will result in the offender losing his or her employment or profession or that he or she will forfeit benefits such as superannuation': Ryan v R (2001) 206 CLR 267 at [54].
Identification as an Aboriginal or Torres Strait Islander
Race itself is not a mitigating factor. This was confirmed recently by the High Court in Bugmy v The Queen [2013] HCA 37, referring to earlier NSW authority of Fernando (1992). However, deprivation in an offender's background is relevant, that is, 'the circumstance that an offender has been raised in a community surrounded by alcohol abuse and violence may mitigate the sentence because his or her moral culpability is likely to be less than the culpability of an offender whose formative years have not been marred in that way’ Bugmy v The Queen [2013] HCA 37, [40]. This applies equally whether the offender is aboriginal or not (however, the High Court in Bugmy confirmed Wood J's recognition (in Fernando) that alcohol and alcohol-fuelled violence, are endemic in some aboriginal communities). The High Court in Bugmy also noted the comments in Fernando that because of the offender’s background or lack of experience of European ways a lengthy term of imprisonment might be particularly burdensome. Further, the High Court confirmed that profound deprivation in the past does not diminish over time, stating that ‘[t]he experience of growing up in an environment surrounded by alcohol abuse and violence may leave its mark on a person throughout life. Among other things, a background of that kind may compromise a person’s make-up and remains relevant to the determination of the appropriate sentence, notwithstanding that the person has a long history of offending’ Bugmy, [43]. The High Court determined that these factors must be assessed on a case by case basis, not be applied systematically to all offenders with an aboriginal background.The High Court also noted that raising deprivation may sometimes not have the same mitigatory relevance, suggesting that it may increase the weight given to other sentencing purposes.
Traditional justice payback has also been taken into account in the Northern Territory (Minor (1992) 105 FLR 180). Note where someone identifies as ATSI the court can receive submissions by a community justice group as to the offenders relationship with the community, cultural considerations and available programs s9(2)(p) Penalties and Sentences Act (Qld) 1992.
Traditional justice payback has also been taken into account in the Northern Territory (Minor (1992) 105 FLR 180). Note where someone identifies as ATSI the court can receive submissions by a community justice group as to the offenders relationship with the community, cultural considerations and available programs s9(2)(p) Penalties and Sentences Act (Qld) 1992.
Extracurial Punishment
Loss/detriment imposed on the offender by other than the sentencing court can be taken into account when there is a connection between the offence and the punishment - i.e. where the offender has suffered injury or where there is traditional justice payback.
See eg, R v Webb [2004] NSWCCA 330 - offender shot by police during arrest and suffered ongoing disability, which was taken into account or Daetz (2003) 139 A Crim R 398 - offender who committed robbery in company, and was then seriously assaulted by others in revenge, suffering injuries, was taken into account. Cf Silvano v R [2008] NSWCCA 102 - where offender raped and assaulted in prison while awaiting sentencing - was not taken into account as there was no direct connection between the offences and the assault, the assaults were not inflicted to punish him for the offences.
See eg, R v Webb [2004] NSWCCA 330 - offender shot by police during arrest and suffered ongoing disability, which was taken into account or Daetz (2003) 139 A Crim R 398 - offender who committed robbery in company, and was then seriously assaulted by others in revenge, suffering injuries, was taken into account. Cf Silvano v R [2008] NSWCCA 102 - where offender raped and assaulted in prison while awaiting sentencing - was not taken into account as there was no direct connection between the offences and the assault, the assaults were not inflicted to punish him for the offences.
Danger in Prison
It is “appropriate for a sentencing judge to take into account the grave risk that a convicted criminal could be killed while in jail. What weight should be given to the risk of a prisoner being killed or injured will depend on all the circumstances of the case including the likelihood of its occurrence” per McHugh in York v The Queen [2005] HCA 60.
Delay
Not a mitigating factor unless the delay results in unfairness (R v Law [1996] 2 Qd R 63). Unfairness may result where the offender has had their liberty curtailed/reputation called into question in the meantime or where the offender has made progress in rehabilitation.
Compare - B v The Queen [2001] WASCA 40
Compare - B v The Queen [2001] WASCA 40
Adverse Publicity
Ryan v The Queen (2001) 206 CLR 267 – No clear majority as to whether this is an appropriate factor.
See also Einfeld [2009] NSWCSC 119.
See also Einfeld [2009] NSWCSC 119.
Intoxication
In Queensland voluntary intoxication (either by alcohol or drugs) must not be considered to mitigate a sentence: s 9(9A). Munda v WA (2013) 'It is also important to say that it should not be thought that indulging in drunken bouts of domestic violence is not an example of moral culpability to a very serious degree.'
In Queensland voluntary intoxication (either by alcohol or drugs) must not be considered to mitigate a sentence: s 9(9A). Munda v WA (2013) 'It is also important to say that it should not be thought that indulging in drunken bouts of domestic violence is not an example of moral culpability to a very serious degree.'