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One of the questions I'm asked most is "how do you defend someone that you know is guilty?".

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In reality, a large portion of my work is done knowingly doing that because a signficiant amount of clients plead guilty to their offences. Such offences range from what some would say are trivial traffic matters to some very serious violent crimes. 

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What I believe I am doing is telling their story to the Court and in doing so, I am hoping that they get the most leniency that the Court can legally give them. I'm usually telling the Court how a person ended up at that point in their life to make the decision they did. Usually there is an explanation, a reason, and while they are still guilty and likely will suffer some punishment, few people commit crimes for no reason. 

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That is the sentencing exercise. Informing the Court about all relevant information about you, the offence, and why you committed the offence. 

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This includes any application pursuant to the Mental Health and Cognitive Impairment Forensic Provisions Act.

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This Act allows the Court to dismiss charges on condition of Orders comitting a person to treatment plans where such persons suffer from mental health or cognitive impairments. 

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Should the matter proceed to ordinary sentence, a psychiatrist or psychologist report, or a sentencing assessment report may still be utilised to help build the "why" of the case. In addition to that, references are usually of benefit to demonostrate that such conduct is out of character for a person and that they are otherwise good persons in the community.

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In most matters, section 21A of the Crimes (Sentencing Procedure) Act 1999 sets out the aggravating and mitigating factors the Court takes into consideration. The inclusion of an aggravating feature will usually worsen the sentence while the inclusion of a mitgating feature will usually lessen the sentence. 

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Ultimately, the Court will decide the "objective seriousness" of the offence. That is where the offence sits in terms of worst case scenario to best case scenario particularly in terms of the maximun term of imprisonment. 

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The Court will also take into account concepts called "general deterrence" and "specific deterrence".  "General deterrence" is the need to send a message to the community. "Specific deterrence" is the need to send a message to the offender".

 

From all of that, the Court will ultimately arrive at a determination that is hopefully fair upon the defendant. 

 

The Court has an array of sentencing options at its disposal aside from giving a person a full-time term of imprisonment. The main type of Orders are:

•  "Section 10" - non- conviction with or without a conditional release order;

• Conditional release order (formerley a good behaviour bond);

• Fine;

• Community Corrections Order

• Intensive Corrections Order- a term of imprisonment served in the community;

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Sentencing Tips

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1. ​Have 2-3 character references. Favour quality over quantity. ​

2. If the case warrants it, be prepared to invest in a psychiatrist or psychologists report. There is only so much your lawyer can advance from the bar table- sometimes it needs to be supported by independent expert evidence.

3. Consider an application under the Mental Health and Cognitive Impairment Forensive Provisions Act if you have a mental or cognitive impairment. Again, this will require typically a psychiatrist or psychologist report. This could mean that your charges are dismissed all together. 

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