Introduction
The Sentencing Act 2002 outlines aggravating and mitigating factors that must be taken into account when sentencing an offender. These are subject to 'proof of fact' and are raised in court by the prosecutor or the offender (or the offender's defence counsel).
Note: It is not the role of a probation officer to argue these factors in the report but it is important to be aware of these factors when making a recommendation.
Legislative reference: Section 9 Sentencing Act 2002.
Aggravating factors
Aggravating factors include:
- if the offence involved:
- actual or threatened violence, or the actual or threatened use of a weapon, or
- unlawful entry into, or presence in, a dwelling place
- if the offence was committed while the offender was on bail or still subject to a sentence
- the extent of any loss, damage, or harm resulting from the offence
- if there was particular cruelty in the commission of the offence
- if the offender was abusing a position of trust or authority in relation to the victim
- if the victim was particularly vulnerable because of their age, health or other factors known to the offender
- if the offender committed the offence partly, or wholly, because of hostility towards a group of persons who have an enduring common characteristic such as race, colour, nationality, religion, gender, sexual orientation, age or disability, and:
- the hostility is because of the common characteristic, and
- the offender believes that the victim has that characteristic
- premeditation on the part of the offender and the level of premeditation involved, and
- the number, seriousness, date, relevance, and nature of any previous convictions of the offender, and any convictions for which the offender is being dealt with at the same time.
Mitigating factors
The mitigating factors that may be taken into account include:
- the age of the offender
- if and when the offender pleads guilty
- the conduct of the victim
- whether the offender had limited involvement in the offence
- whether the offender has diminished intellectual capacity
- any evidence of the offender's previous good character, and
- any remorse shown by the offender, or any offer, agreement, response or measure to make amends.
Note: Being affected by the voluntary consumption or use of alcohol or other drugs is not to be considered a mitigating factor.
