A great deal of my work as a criminal defence lawyer is dedicated to representing my client’s best interests on sentence proceedings following a plea of guilty. My role is to prepare and present the case to achieve the best possible outcome for each client.

Fortunately justice is individualised in our legal system. The Court is required as a matter of law to look at the circumstances of each case and tailor a penalty appropriate to those circumstances. A Court must consider two broad factors in determining an appropriate sentence:

1. The seriousness of the particular example of the offence.
2. The personal circumstances of the defendant.

This is the first of a series of articles exploring the role of a lawyer in the sentence process. This article focuses on the second of the two factors.

I genuinely believe there are very few inherently bad people. Life is never so black and white. Crime is often a function of personal circumstance at least to some degree. This is not the self-interested opinion of a defence lawyer. Long established law requires the Courts to have regard to personal circumstances on sentence. The legislation that governs sentence proceedings in Queensland is the Penalties and Sentences Act 1992. Section 9 of the Act outlines the matters a Court “must” have regard to in imposing sentence. Those matters include the extent to which a person “is to blame for the offence”, and “character, age and intellectual capacity” and also the “antecedents” (another word for personal background) of a person. Further there are cases stretching back decades that establish the relevance of a variety of personal circumstances to sentence, for example the different ways mental illness might impact on sentence.

A client’s personal circumstances are relevant in a variety of ways. The Court will look back in time. Past history may provide a context for the offending conduct that warrants a more sympathetic approach. For example, traumatic childhood experience can explain entrenched drug addiction commencing at a vulnerable age. Those circumstances not only explain offending but also suggest a more lenient sentence favouring an emphasis on rehabilitation. Prior good history supports a finding an offence is uncharacteristic, there is a low risk of re-offending and good prospects of rehabilitation.

A person’s circumstances at the time of an offence are relevant to assessing their moral culpability, the extent to which they are to blame and should therefore be punished. A clear example is an offence committed in the course of a psychotic episode. There is well established legal authority for the proposition such a person should not face the full force of the law. Another example is an offence of out of character violence committed in a period of emotional turmoil but unlikely to be repeated.

The law also requires the Court to look forward in time and make predictions about future behaviour when determining sentence. The Court assesses the risk of re-offending and the prospects of rehabilitation. These predictions are again based on an examination of personal circumstances. Seeking assistance to address a personal issue, like a gambling addiction or alcohol abuse that contributed to an offence weighs in favour of a positive finding and a less severe penalty. Something as simple as evidence of better family and social support, more stable living arrangements or employment can be of valuable assistance.

Finally personal circumstances affect the impact of a penalty imposed by the Court. Because justice is individualised the Court must be mindful of the impact of a penalty on the individual. A $500 fine is in reality a very different penalty for a professional employed fulltime as opposed to a single mother relying on social security payments. Likewise the same period of licence disqualification will be a much more severe penalty for a professional driver than an office worker. For some people, suffering significant physical or mental illness, a period of custody is a much more onerous penalty.

One of the things I enjoy most about my work is engaging with my clients and working together to present their circumstances to the Court to achieve the best result possible. This is a process in stages. The first is to speak at length with my client to explore and understand their personal history, both their past and their circumstances at the time they found themselves on the wrong side of the law.

I strive to get that information as early as possible for a number of reasons. The first is to allow time to collect evidence to support the case I want to present to the Court. That evidence can take the form of medical records, character references, or financial records. Whilst it is possible to simply make submissions from the bar table my aim is to influence the result as much as possible. My goal in arguing a sentence is to ensure the Court does more than simply accept my client’s personal circumstances. My preparation and arguments are designed to ensure the Court is influenced by those matters. A Court is far more likely to be influenced, to feel sympathy, when confronted with hard, ideally overwhelming evidence. In all aspects of the law, evidence is the foundation on which arguments are built.

The second reason for taking instructions early is to allow time for me to work with my client to identify what we can do to improve their situation on sentence. It is one thing to identify a personal issue that contributed to an offence. That is only half the story. The Court expects and will be far more sympathetic to those circumstances where there is evidence of meaningful steps to resolve any issue.

In truth, my clients are usually in a much better position to improve the outcome of their sentence proceeding. I can present arguments in an articulate and persuasive fashion but ultimately I rely on my clients to provide the substance, the ammunition, for my arguments to the Court. The most rewarding part of my job is sitting down with my clients and formulating a plan to improve their position on sentence. The rewards come in different guises. From a professional perspective it is about taking the best tactical approach. Much more so, from both a professional and personal perspective, it is about helping my clients.

That is after all my job description. It is a fortunate coincidence that every step my clients take to improve their situation in Court inevitably represents a positive step in their lives generally.

It is never possible to guarantee an outcome in a criminal case. It is the Court that finally decides the result. There is however a guarantee I can give every client. The Court will impose a more favourable sentence when we work through this approach to prepare their case together.

How We Can Help

Quinn & Scattini Lawyers’ expert criminal lawyers can provide expert representation across a range of criminal charges and are experienced representing clients in all courts.

When the court is preparing sentences for your case, they do so based on what is put forward in court.

Our lawyers put the best case forward so you can obtain a favourable outcome.

Contact Us

Get the best representation. Contact Quinn & Scattini Lawyers on 1800 999 529, email mail@rmold.newwebsite.live, or submit an enquiry below.

We are available to meet with you at any of our local offices (Brisbane, Gold Coast, Beenleigh, Cleveland and Jimboomba) or by telephone or video-conference.

This article is for your information and interest only. It is not intended to be comprehensive, and it does not constitute and must not be relied on as legal advice. You must seek specific advice tailored to your circumstances.