What are Mitigating Circumstances?

What are mitigating circumstances?


Mitigating circumstances are matters that the court can take into account in determining the appropriate sentence of an offender in sentence proceedings. Mitigating circumstances therefore can be taken into account by a Magistrate or a Judge in reducing the sentence that would otherwise apply for the offence.

Section 21A(3) of the Crimes (Sentencing Procedure) Act 1999 sets out mitigating circumstances that may be taken into account by a Sentencing Magistrate or Judge:

  • the injury, emotional harm, loss or damage caused by the offence was not substantial,
  • the offence was not part of a planned or organised criminal activity,
  • the offender was provoked by the victim,
  • the offender was acting under duress,
  • the offender does not have any record (or any significant record) of previous convictions,
  • the offender was a person of good character,
  • the offender is unlikely to re-offend,
  • the offender has good prospects of rehabilitation, whether by reason of the offender’s age or otherwise,
  • the remorse shown by the offender for the offence, but only if:
  • the offender has provided evidence that he or she has accepted responsibility for his or her actions, and
  • (ii) the offender has acknowledged any injury, loss or damage caused by his or her actions or made reparation for such injury, loss or damage (or both),
  • the offender was not fully aware of the consequences of his or her actions because of the offender’s age or any disability,
  • a plea of guilty by the offender (as provided by section 22),
  • the degree of pre-trial disclosure by the defence (as provided by section 22A),
  • assistance by the offender to law enforcement authorities (as provided by section 23).


Can mitigating circumstances be a defence or an excuse for the offence?


The sentencing court will not accept an argument that a mitigating circumstance is a defence to the charge. For more information on defences to a criminal charge, click here.


What should I do if my lawyer has forgotten to present a mitigating circumstance?

You should listen carefully at your lawyers arguments at your sentencing hearing. You should also know your case well. If your lawyer simply forgets to mention a matter that you feel is important to your case, you should inform him/her immediately, before the close of his/her submissions.

If it is the case that your lawyer did not present evidence to the court regarding what you feel is an important mitigating circumstance, you may have the option of presenting this evidence at your appeal. The appeal court may consider the new material as “fresh evidence”.


Is the court required to take mitigating circumstances into account, and reduce my sentence?


Whilst the court is not “required” to take into account any mitigating circumstances and reduce the sentence, it is rare that a sentencing Magistrate or Judge will completely ignore mitigating circumstances and not take them into account in reducing the sentence.


If you are facing a sentence for a Criminal Offence, it is important that you retain the services of an experienced Criminal Defence Lawyer. Call LY Lawyers on 1300 595 299.