Legal Eagle : Getting the judge to impose a lighter sentence
After an accused person is convicted by a jury, or is found guilty by a judge, or pleads guilty to any criminal charge, before the sentence is handed down by the presiding judge, the convicted person or his attorney-at-law has a right to make oral submissions to the court in what is called a plea in mitigation.
Depending on the offence, most judges have a wide range of sentencing options from admonish and discharge, probation order, community service order, suspended sentence, fine, and both fine and imprisonment.
The plea in mitigation is part of the sentencing process, which is the next step after conviction. In most criminal matters, after a conviction, the presiding judge will make the usual orders for an antecedent report and social enquiry report, but the judge may make orders for other reports, if necessary.
The antecedent report is prepared by the police and provides the judge with information on the year, charge and sentence of any criminal matter touching and concerning the person about to be sentenced. In addition, it would give information such as the convicted person's date of birth, particulars of parents and siblings, school attended, work experience and other relevant information. The court detective usually reads out the antecedent report in court.
PROVIDES MORE DETAIL
The social enquiry report is prepared by the probation department. It is similar to the antecedent report, except that it provides far more detail about the convicted person, his family and community, his educational background, the victim, plus a recommendation as to the type of sentence to be imposed. Generally, it is taken as read, but if the convicted person or his legal representative wishes to ask questions about anything in the report, the person who prepared the report is usually available to be sworn so that questions may be asked by the convict's lawyer or the judge.
A convicted person may also call witnesses as to character. These are usually persons of some standing in society. In practice, the persons who are often times called as character witnesses are ministers of religion, justices of the peace, prominent business persons and other persons of importance and influence in the community that the convicted person resides or work.
Before the judge pronounces sentence, the convict is asked whether he wishes to say anything. If the convict is unrepresented, he can make his own plea in mitigation to the judge. However, if he has a lawyer, the said lawyer will signal to him to sit and thereafter the lawyer makes oral submissions in plea in mitigation.
To assist the lawyer in preparing the plea in mitigation, it is important that the accused person, from the outset, provides as much instructions on the good and positive part of his life. These instructions will help in a bail application, at the start, and thereafter in a plea in mitigation, if necessary.