Preparing for sentencing

Contributed by AndrewRobson and current to 27 July 2018

A person getting ready to be sentenced should organise written references for the court and also prepare what is going to be said to the court.

General areas that should be covered in preparing what to say to the court include:

• What happened.
• The level of involvement in what happened.
• Age, marital status, number and age of dependants.
• Whether the person is under court or other supervision or subject to any orders (i.e. CBO, parole)
• The health of the person past or present (if relevant).
• Reasons for committing offence (e.g. drug/alcohol related).
• Co-operation with police.
• Remorse.
• Employment position and current financial status.
• The record.
• Appropriate sentence.

A plea in mitigation must not give rise to a defence. If it does, the court will not accept a plea and may set the matter down for hearing whether the offender wants it heard or not (e.g. an offender cannot plead guilty to stealing and then say in mitigation that he did not intend to steal). Also if there is a dispute about important facts then the court will set the case down for a trial on the facts. The prosecution need to establish any aggravating facts and the defence need to establish any mitigating facts.

Character References

A character reference helps to show that people in the accused’s daily life think highly of them and that they are a person of good character.

Character references are generally used at the sentencing stage, that is, after the accused has pleaded guilty or has been found guilty of an offence.

Good character referees might include long-time family friends, former teachers, past or present employers, people of special standing in the community, the accused’s family doctor or local priest, neighbours or officials of sporting or social clubs they have belonged to.

In some circumstances, a letter from a family member can also be very helpful where that person knows about the trouble the accused has been in and can openly discuss the difficulties the accused and possibly others in the family are facing. A family member may also be able to point to something that gives them hope about the accused’s future and about their potential to stay out of trouble.

The character reference should:

• be written specifically for the court appearance. A reference written for another purpose (such as a job application) or one that was not written recently is not as useful;
• state that the writer is aware of the charges before the court;
• state why the writer thinks the accused is a person of good character or why they believe that the accused’s behaviour in committing the offence was out of character for them. It is a serious criminal offence for a referee to mislead the court or for the accused to encourage the referee to mislead the court.

The character reference should not:

• attempt to discuss legal matters;
• state that the accused did not commit the offence;
• speculate about whether the accused intended to commit the offence.

If the accused is appearing in the District or Supreme Court it is important to provide the references well in advance of the sentencing hearing so the Judge can read them before the sentencing.

Medical References

If the accused is currently under or was under medical care at the time of the offence, a letter from their doctor may be of assistance to the court for sentencing purposes.

Where possible the letter should:

• be dated and state that the doctor is aware of the charges before the court;
• state how long the doctor has known the accused and/or has been treating them;
• specify what the accused’s medical condition is;
• set out their prescribed medication, if any;
• address any other matters which the doctor thinks are relevant.

References from counsellors

If the accused is already on a formal court program with the Court Diversion Service or they are on a Community Based Order or an Intensive Supervision Order, a report will usually be presented to the court (either verbally or in writing) before they are sentenced.

If the accused is having any other type of counselling (e.g. for drug or alcohol abuse, physical abuse, gambling etc) or is on any other sort of program (e.g. the Methadone program, the Naltrexone program, residential rehabilitation etc.) it may be useful for the magistrate to be aware of this and any progress which the accused has made before they are sentenced. Where possible the accused should bring a letter to court from their counsellor which:

• is dated and states that the counsellor is aware of the charges before the court;
• states why the accused is receiving counselling and how long the accused has been attending counselling;
• states how the accused is responding to counselling and whether, in their view, the accused should continue with counselling.

Proof of employment

Sometimes it is useful for the accused to bring written confirmation of their employment to court.

If the accused’s employer can also write a character reference this can be done all in one letter.

A letter from an employer which does not refer to the court matters is less useful but is still worth handing up to show that the accused is working.

References for People with Disabilities

Mental illness

If the accused has a mental illness they should seek legal advice about their charges before pleading guilty as they may have a medical defence because of their mental illness.

It is very important that the court knows about their mental illness before they are sentenced. If they are currently seeing a psychiatrist or a psychologist they should try and bring a letter to court confirming this. If they cannot get a letter, efforts should be made to ensure that the magistrate knows that they are seeing a psychiatrist or a psychologist before they are sentenced.

If the accused cannot get a letter from their psychiatrist or psychologist some other person (such as a family member, a close family friend or a counsellor) may be able to write to the court and tell them about the nature and history of their mental illness.

Intellectual disability

If the accused has an intellectual disability they should seek legal advice about their charges before pleading guilty as they may have a defence because of their disability.

It is very important that the court knows about the accused’s intellectual disability before they are sentenced. Where possible the accused should bring a letter to the court which sets out the nature and history of their disability. The letter can be written by their doctor, counsellor, a family member or any other responsible person who is aware of their disability and the surrounding circumstances.