Online Reporter
Trust Maanda
Legal Position
IN a criminal trial the accused is given an opportunity to mitigate before the court pronounces sentence or punishment after convicting the accused.
A conviction is when the court finds that the accused is guilty of what he or she is accused of.
Before the court pronounces the punishment, the accused is given a chance to plead with the court giving it reasons why a particular sentence should be chosen against him or her.
This is where he or she gives factors that the court must consider in coming up with the type and severity of the sentence.
This stage is called mitigation.
Mitigation’s role is to present the accused’s personal circumstances to the judge, explaining factors that should lessen his blameworthiness and argue for a less severe sentence.
Mitigation is not a justification for the crime, but a plea for leniency in the sentence.
It provides a factor beyond the finding of guilty, balancing aggravating factors to ensure that the punishment fits the offender, influencing judicial discretion for fairer punishment.
Mitigation tells the offender personal circumstances such as his or her background, history, mental state, that influenced their actions.
It seeks to get lighter penalties, like imposition of a fine, community service, community service, or shorter prison terms, etc by highlighting factors that make the court view the offender with leniency.
Mitigation provides context to the commission of the crime, or motive of the crime showing it was not committed on purely malicious grounds, but was influenced by underlying issues.
Mitigation factors helps the court to weigh personal circumstances against aggravating factors to achieve a fair sentence.
Mitigation shows the offender’s remorse and presents evidence of genuine remorse or steps taken towards reform.
For example, the offender may have compensated the victim or helped the victim from the consequences of his crime.
The mitigating factors
Factors to be raised in mitigation differ from one person to the other, and they are not exhaustive.
Some of the mitigating factors include responsibilities than an accused person has, such as if he or she is married and had children and a spouse that depend on him or her. The accused may apologise to the victim, the State, and the court, promising to be a good citizen.
Another mitigating factor is age. Youthfulness or elderliness. A youthful person lacks experience and acts out of youthfulness.
The court may be lenient on that basis. If a person has no criminal history, the court will not be too harsh to send him to prison if there are other permissible means of punishment.
A first offender is not a harden criminal, and so the court avoids sending him or her to prison unless the case requires that form of punishment. Accused will not be a serial offender.
Where the accused pleads guilty, he or she saves the court’s time. An admission saves the victim the trouble of reliving his or her experience at the hands of the accused.
Sometimes a person may steal out of need rather than greed. The court may look at that and be lenient. In essence, mitigation allows the defence to argue, why a harsh sentence isn’t the best solution.
These mitigating factors will be weighed against aggravating factors that the state present in response to the mitigation. Aggravating factors are factors that show that the case requires a severe punishment. They are factors that show the accused person’s blameworthiness and call for a harsh sentence. For example, the way the crime was committed may show that the accused actually premeditated it and he was callous in committing it.
A prosecutor may agree that the accused is a first offender, but the offence may be committed in aggravated circumstances such that the accused would have started his crime from the deep end. Prosecutors often say that.
If the offender was in a position of trust such as an employee who teals from the employer, the court may be harsh. For example, a teacher may be said to have abused his position of trust.
A murder committed in the course of an armed robbery is gruesome and aggravatory. Circumstances of the commission of the crime may be regarded as aggaravatory.
The court then weights mitigation and aggravation to come up with an appropriate sentence.
Depending on the circumstances, the court does not want to trivialise a serious case but does not want to sentence the offender to a harsher penalty than he or she deserves.
TRUST MAANDA is a legal practitioner and a partner at Maunga Maanda And Associates. He writes in his personal capacity. He can be contacted on +263772432646
