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– defendant’s role and Victim’s/Complainant’s role
To commence, it would be considered a mitigating factor if the defendant’s role was minor in the commission of the offence. However, it would be an aggravating factor, if the defendant played a prominent role in the commission of the offence. On the other hand, the victim/complainant may also play a mitigating role. This is usually seen when a victim/complainant was the individual who initiated the commission of the offence which prompted the defendant to retaliate or defend himself/herself.
The defendant’s co-operation with the relevant authorities (arresting officers, investigating ranks and prosecution) is considered as a mitigating factor because little to no time or resources would have been wasted getting the defendant to comply.
Defendant’s attitude/Expression of Remorse
A defendant who is careless and emotionally detach from the case is less likely to have a mitigated sentence based on his/her attitude than a defendant who is present and genuinely expresses remorse for their role in the crime. A defendant can express their remorse by verbally apologising to the victim/complainant before the court, or by writing a letter of apology to the victim/complainant to be read on the defendant’s behalf by Defence Counsel or the Magistrate/Judge.
Restitution is another means by which remorse could be expressed by the defendant. Additionally, by restitution a defendant takes accountability for his/her role in the commission of the offence by offering compensation to the victim/complainant.
Potential for Rehabilitation
It may be a mitigating circumstance if the defendant has a good prospect of being rehabilitated. This circumstance may rely on that particular defendant’s personal circumstances such as: the defendant’s good character and whether the defendant was a first time offender as opposed to being a habitual offender.
Consequences of the Crime
Consequences of the crime are either minor or serious. Therefore, it is a mitigating circumstance if the consequences of the crime are minor and there is no intended or unintended serious psychological or physical damage to the victim/complainant or to property. However, it is an aggravating circumstance if there is resulting psychological and physical damage to the victim/complainant whether intended or unintended.
(This column is intended to address commonly asked questions about the criminal justice process for defendants. We intend to explain the roles of the various persons at each stage in this process beginning with the arrest and questioning stage and concluding with further information and resources. We will also address how long you can be held in custody and other rights and responsibilities you should be aware of. This column in no way replaces your need to personally consult your attorney-at-law or your own readings on the existing law ( Prepared by Sparman and Small attorneys-at-law)