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Aggravating and Mitigating Factors Ministry of Justice, New Zealand

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the various types of aggravating and mitigating factors
whether they should be limited to factors consistent with the declared rationale(s) of sentencing
the degree of specification which is possible or desirable
issues surrounding the use of these factors.
5. Aggravating and Mitigating
Factors
5.1. Introduction
5.2. Types of Aggravating and Mitigating Factors
5.3. How Closely Should Aggravating and Mitigating Factors be Linked to Sentencing Rationales?
5.4. Specification of Aggravating and Mitigating Factors
5.5. The Use of Aggravating and Mitigating Factors
5.6. Summary
5.1 Introduction
Sentencing decisions typically include the weighing up of aggravating and mitigating factors, insofar as they exist, in
order to individualise the sentence with respect to the offender and the circumstances of the offence(s). Aggravating
factors are those which may increase the sentence, while mitigating factors may have the opposite effect. The courts
have generally been left a broad discretion as to how to deal with aggravating and mitigating factors.
The issues discussed in this chapter are:
5.2 Types of Aggravating and Mitigating Factors
There is wide consensus that aggravating and mitigating factors should relate to the harm or potential harm of the
offence and the culpability of the offender. This not only equates with a just deserts philosophy, but also with the
common law concept of crime as consisting of both a proscribed act or omission (actus reus) and an intention (mens
rea). It follows that anything which affects either of these two elements should have a bearing on the sentencing
decision. Examples of aggravating factors of this type would be the degree to which the offending was planned or part
of an organised activity, whether it was committed for remuneration, and whether a weapon was used. Mitigating
factors may be that the offence was committed under significant coercion or provocation, the offender's conduct
resulted from a significant lack of capacity for judgement, or the crime was motivated by strong human compassion
or severe need.
The debate as to which aggravating and mitigating factors should be taken into account is largely centred on whether
factors not directly related to the offence itself or to the offender's conduct in relation to that offence should be
considered. This encompasses factors related to the offender's conduct after the offence (for instance, guilty pleas,
assisting the police to apprehend other offenders, and offers of compensation to the victim), factors concerning the
offender's general character which are unrelated to the offending (for instance, previous good character or charitable
acts), and the indirect consequences of the offence for the offender (for instance, loss of employment or serious
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personal injury).
To some extent this will depend on the degree to which the factors are linked to the sentencing rationales and what
these rationales are (see 5.3 below). With respect to post-offence conduct, an offer to make amends or an apology to
the victim may be appropriate mitigating factors if restitution is a primary sentencing rationale, although care would
need to be taken that wealthier offenders could not buy themselves a lighter sentence (see 3.5.6). Such behaviour
may also be taken as evidence that the offender has considerable potential for rehabilitation if this were a primary
rationale.
A guilty plea is also sometimes seen as indicative of contrition and potential for self-rehabilitation (that is, if it is not a
calculated response in the face of a high probability of conviction). The practice of giving a sentencing discount for a
guilty plea is most often justified for practical reasons. It saves the time and expense of a trial, and it spares the
victim and possibly other witnesses the ordeal of a court appearance. The objections to this practice are that it may
penalise defendants who exercise their right to put the Crown to proof by contesting the charge, and it may constitute
an undue inducement to innocent defendants to plead guilty. It is for the latter reason that Scotland has no guilty plea
discount.
In respect of a collateral consequence of the offence such as loss of employment, the English Court of Appeal has
made it clear in the leading case of R v Barrick (1985) 7 Cr.App.R. (S) 142 that this should not be regarded as a
mitigating factor (Ashworth 1992, p135). The New Zealand courts, on the other hand, regularly view loss of
employment, career prospects, and the humiliation and stigma of a criminal conviction as mitigating (Hall 1993-97,
B/183). This latter approach introduces a potential bias on the basis of socio-economic status in that it discriminates
against the unemployed offender, or those in jobs where a criminal record is of no consideration.
Such a bias is also possible where mitigation is awarded on the basis of the person's previous social standing and
good reputation in the community. It is of note, however, that a position of influence and responsibility may count as
an aggravating factor for some crimes if that status were used to advantage in the offence, for instance for drug
dealing or fraud.
Past 'good deeds' of the offender which are unrelated to the offence are also often raised as mitigating factors. The
rationale is that evidence of past social responsibility and service to the community should to some degree offset the
offending behaviour and hence reduce the sentence. The justification for this in terms of culpability is probably similar
to that for the absence of previous convictions being viewed as a mitigating factor, namely that it demonstrates that
the offending is 'out of character' and that the offender deserves a second chance. (Clearly the accumulation of
previous convictions would similarly compromise this claim.) If there were a rehabilitative sentencing rationale these
factors could possibly indicate a lesser degree of rehabilitative need. This approach can also be justified if sentencing
is seen as a form of 'social accounting' rather than a response to distinct instances of illegal conduct (see Ashworth
1992, pp133-4 for a different view).
Another group of mitigating factors may be best described as prompting consideration of the exercise of mercy, or
ensuring that the sentence will have equal impact on offenders responsible for similar offences and of equal
culpability. These include such things as severe illness, or if the offender is aged. In these circumstances,
imprisonment may be deemed an additional physical hardship and an extreme punishment if the offender is likely to
die before release. Mercy or the principle of equal impact may also justify the shortening or replacement of a prison
sentence where the offender has a disability which may mean that imprisonment is an extraordinary hardship.
Mitigation is sometimes allowed when as a result of the crime the offender has suffered serious injury, the death or
serious injury of a loved one, or severe financial loss.
The treatment of previous offending as an aggravating factor is dealt with in Chapter Six.
5.3 How Closely Should Aggravating and Mitigating Factors be Linked to Sentencing Rationales?
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it may not be appropriate to consider a particular factor as a mitigating or aggravating feature irrespective of what
the offence type is, i.e. sometimes it should be viewed as irrelevant to the offence
the degree to which a factor may be aggravating or mitigating will vary according to the offence and the number
and type of other factors
a factor such as standing in the community could be a mitigating factor in some circumstances and an
aggravating one in others.
An important question is the extent to which these factors should be linked, or even limited, to the rationale(s)
selected as the basis for sentencing. For example, if the primary aim of sentencing were just deserts, then factors
such as remorse and contrition on the part of the offender may be viewed as relevant considerations if they are seen
to reduce culpability because they indicate the offender was acting 'out of character' or 'made a mistake'. They would
also be relevant if rehabilitation were the aim.
It is argued that making the aggravating and mitigating factors consistent with the declared rationale(s) of sentencing
will enhance consistency of approach (See for instance, Council of Europe 1993, p381). On the other hand, Ashworth
comments that to link aggravating and mitigating factors solely to the primary rationale(s) would be "too astringent ...
particularly in the context of a branch of the law so closely entwined with social policy and so politically sensitive as
sentencing." His view is that while "the core of aggravating and mitigating factors ... [should be] linked to the primary
rationale, ... there is no reason why additional factors should not be recognised" (Ashworth 1992, p123).
Different rationales will occasion different considerations of factors. If a variety of rationales are available, then the
sentencing judge is able to choose between a wide range of aggravating and mitigating factors. It is of note that New
Zealand judges have often linked aggravating factors to the need to impose a deterrent or incapacitative sentence,
while mitigating circumstances are often linked with the possibility and opportunity for rehabilitation, or attempts to
achieve equal impact in sentencing.
5.4 Specification of Aggravating and Mitigating Factors
A further issue is the degree to which aggravating and mitigating factors can be incorporated in statutory or otherwise
formal sentencing guidelines. One point of view is that individual factors cannot be singled out and fixed under one or
other heading (and definitely not given a value) since:
The argument for specification is that it will result in greater consistency of approach. For instance, the Council of
Europe examination of sentencing concluded that to avoid "subjective disparity between judges" the major
aggravating and mitigating factors should be specified in law or in legal practice, and there should also be definition of
the factors not considered relevant to certain offences. An example of the latter is the requirement in both Swedish
and British law that neither the victim's previous sexual experience nor possible imprudence by the victim are to be
considered mitigating factors in the sentencing of rape. The Committee recognised that it was not possible to create
exhaustive lists, but stipulated that at least the leading factors and those which have provoked controversy should be
identified (Council of Europe 1993, p381).
One example of the listing of factors is provided in the Swedish Criminal Code 1988. The listed aggravating and
mitigating considerations relate primarily to harm and culpability, and are to be used by the court to determine the
'penal value' of the offence, which in turn determines the sentence. These general lists may be overridden by
circumstances or factors specifically prescribed for certain types of crime. This presumably deals with those offences
to which one or some of the general aggravating and mitigating factors do not apply. The Code provides an additional
list relating to the offender's conduct after the offence and the corollary consequences of either the crime or a 'normal'
sentence for the offender. It stipulates that these factors are to be considered "to a reasonable extent" alongside the
penal value to determine the eventual sentence. This suggests there is a two stage process: the main aggravating
and mitigating factors are used to determine the penal value; then consideration is given to whether any of the other
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consequences or subsequent actions of the offender should reduce the sentence below the calculated penal value.
Full remission of sentence is expressly allowed if any of these latter considerations make the imposition of a
sentence "manifestly unreasonable". Previous offending is to be considered separately in determining the sentence,
as is the youth of the offender (if aged under twenty-one), which may allow for a sentence below the statutory
minimum (Jareborg 1995, pp100-8).
Finnish sentencing law (1976) has a less extensive list of aggravating and mitigating factors. As well as factors
relevant to harm and culpability, grounds for increasing punishment include the degree to which the offending was
planned, and committing the offence as a member of a group or for financial gain. Mitigation is allowed if the offender
was under strong pressure or threat to commit the offence, if there was exceptional and sudden temptation that
lowered the offender's ability to obey the law, or if the offender made voluntary efforts to prevent or compensate for the
offence or assist in clearing it up. There is a rarely used provision for reduction of the sentence due to adverse
consequences for the offender such as loss of job, heavy damages, adverse publicity, or serious personal injury. The
previous criminal record of the offender is an aggravating factor if a previous offence is similar to the new offence or if
the previous offending indicates a particularly strong disregard for the law (T rnudd 1994; Jareborg 1995, pp97-8).
The United States Federal Sentencing Guidelines list aggravating and mitigating factors (called specific offence
characteristics), with points assigned to them to add or subtract from a base offence level (see section 11.4). This
latter system is one way, albeit a very mechanistic one, of giving a fair degree of predictability to the otherwise
difficult task of balancing mitigating and aggravating factors in order to arrive at a final sentence. Similarly, the
Minnesota sentencing guidelines provide a list of permissible reasons for departure up or down from the guideline
sentence, and the Washington guidelines include an illustrative list of aggravating and mitigating factors (see 11.4).
One possible approach to the problems of specification is to list the factors which must not be taken into
consideration. This fits with one of the often cited intentions of specification, namely to avoid discrimination through
the application of status factors. For instance, the Minnesota guidelines prohibit consideration of status factors such
as age, race, sex, employment, marital status, or residence as reasons for departure from the guideline sentences.
In New Zealand, as in England, the courts have been left to develop the parameters of aggravation and mitigation, and
some Court of Appeal judgments have listed the most important aggravating and mitigating factors in respect of
particular types of offences. (The variety of factors and their use in respect of different types of offence and offender
are fully discussed by Hall 1993-97, B/101-B/273.)
5.5 The Use of Aggravating and Mitigating Factors
A preliminary question is whether mitigating factors are to be spelt out in statute or by way of other formal guidance,
or left to the courts to determine by way of case law. The United Kingdom Criminal Justice Act 1991, for example,
requires the courts to consider aggravating and mitigating factors relating to the seriousness of the offence, but leaves
the courts a wide discretion as to whether they take account of "any such matters as, in the opinion of the court, are
relevant in mitigation of sentence" (s28(1)). These matters may include a guilty plea, assistance to the police to
convict others, or characteristics of the offender which would make the normal sentence abnormally hard upon him or
her.
In most systems, the impact of any given factor on the overall sentence, and the balancing of aggravating against
mitigating factors, are determined on a case by case basis, depending on the combination of circumstances and the
type of offence. With the potentially large number and variety of combinations of factors this may well be a cause of
disparity. On the other hand, the complexity of the factors and their combinations suggest the difficulty of rule
making.
The wider question is how far the use of these factors should be prescribed by rules or guiding principles, and how far
it should be left to discretion. Proponents of the former cite the benefit of consistency in approach, while arguments
for the latter relate to the ability to consider the case in the totality of its circumstances as rendering greater fairness.
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When matters are left to discretion, one option is to require that decisions be clearly justified to aid the further
development of the case law. This could include identifying which factors influenced the sentence, whether they were
aggravating and mitigating, and what features of the factor were relevant. The Canadian Sentencing Commission
recommended specificity of this type when sentencers departed from the guidelines (Canadian Sentencing
Commission 1987, pp321-2).
5.6 Summary
1. Sentencing guidance needs to be clear as to what can be considered mitigating and aggravating factors and how
they can be applied consistently.
2. Issues for consideration include:
(a) The extent to which offender characteristics, collateral consequences, and post-offence conduct should be
included as aggravating or mitigating factors.
(b) The extent to which aggravating and mitigating factors should be linked or limited to the declared rationale(s) of
sentencing.
(c) The extent to which the factors can or should be specified in legislation or other formal sentencing guidelines.
(d) The extent to which there should be legislative or other formal principles of guidance as to how the factors should
be used, and whether reasons should be required when they are used.