Offence seriousness and mitigation
We have shown that in passing sentence, a sentencer may consider a range of offender- related factors, and makes an implicit choice between different sentencing rationales.The context for these decisions is set by the level of seriousness of the offence being dealt with. Many of our respondents stressed that personal mitigation is much more of a consideration when the offence is not very serious, and hence the decision to be made is
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about the kind of sentence to be passed, rather than the length of a custodial sentence.This is not to deny, however, that personal mitigation can and frequently does impact sentence length – as indeed we found to be the case in many of our observed cases.
There are two elements to the apparently common-sense assumption that the more serious an offence is, the less personal mitigation matters. First, it is clear that some mitigating considerations – for example, the desire to avoid disrupting the defendant’s employment or family life, or his motivation to undertake drug treatment – only apply if the decision is about sentence type, and particularly custody versus non-custody, rather than sentence length.
Secondly, it appears that some offences are viewed as so serious that the associated personal mitigation is deemed irrelevant – or a very minor concern next to the much greater issue of the crime that has been committed. In the words of Henham, writing specifically about the mitigation of good character, ‘It is evident that, where serious offences are concerned, the gravity of the offence is merely regarded as an aggravating factor which automatically extinguishes mitigation to the point where the sentence reflects the ceiling for that offence’ (1997: 268). One of our respondents made this kind of point. He was a judge who had recently sentenced a group of young boys who had stabbed someone and broke his jaw.They had pleaded not guilty, and there had been a six-week trial.The defendants had previous good character, and ‘stacks of testimonials’; their parents clearly considered them ‘gentle, loving church-going boys’. However, the judge commented that ‘when you see them strutting their stuff on CCTV’ and consider what they have done, the fact that they go to church and are nice to their younger brothers and sisters does not count for anything, and should not have an impact on sentence.
Looking at the inverse relationship between the significance of personal mitigation and the seriousness of the offence, one might question the fairness of, essentially, ‘rewarding’ certain forms of mitigation if the offence is of relatively low seriousness, but discounting that same mitigation if the offence is more serious. A related issue is that the significance of some aspects of personal mitigation may diminish as offenders become more persistent. Evidence of remorse, for example, inevitably carries much more weight for a first-time offender than for a recidivist.
Guilty pleas and mitigation
The defendant’s guilty or not guilty plea also shapes the context within which mitigation is considered by the sentencer. Usually – as our respondents pointed out – personal
mitigation plays a greater role if the defendant pleads guilty.This is because many of the important mitigating factors, such as remorse, and a willingness to address the problems underlying the criminal behaviour, cannot logically proceed from a plea of not guilty. One judge commented in interview (adding that this was something he had not thought about before), that the defendant who pleads guilty not only can claim remorse, but also ‘engages the court’s sympathy much more readily’. Given that the discount in sentence for a guilty plea is to be calculated after any relevant mitigating factors have been taken into account,25 this effectively means that the plea permits a double discount on the sentence – the fairness of which can perhaps be questioned. Some theorists, it should be noted, have argued that the guilty plea discount in itself is problematic, given that it ‘provides a powerful incentive
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to innocent persons to plead guilty’ and significantly increases the sentence to be served by a defendant who is wrongly convicted after a trial (Tonry, 2002: 97).26
The plea of guilty may be on a basis of plea, agreed with the prosecution, that differs markedly from the original charge and thereby not only minimises the seriousness of the offence but also offers further scope for personal mitigation. (Although the basis of plea can be challenged by a judge who subsequently hears the case, leading to a Newton Hearing, this is not often done.) For example, we observed a domestic violence case in which mitigation concerning the defendant’s reconciliation with his partner – of which the sentencer evidently took account - would have been more difficult to sustain had the defendant been convicted of the original, more serious charges. One of our respondents voiced his frustration with the fact that a dishonest defendant, who pleads guilty to the minimum that the prosecution will accept, will be sentenced on that basis and thus rewarded for his dishonesty. In contrast, an honest defendant who admits to the court all he has done, in an effort to ‘wipe the slate clean’, is likely to receive a harsher sentence.