If you are charged with a criminal offence in Queensland and you elect to plead guilty or are found guilty following a trial, the Court will sentence you for the offence. At the time of sentencing, you or your lawyer will have an opportunity to make submissions in respect of the sentence that the Court is about to impose on you.
In the Magistrates Court of Queensland, when making sentencing submissions, it is common practice for the defendant to tender mitigating documents to the Court. Mitigating documents can come in a variety of forms.
In most circumstances, it is appropriate to obtain and tender at least one character reference. Character references from employers are particularly valuable as they are able to demonstrate to the Court that you are a productive member of society.
In order to be used at a sentencing hearing in the Magistrates Court of Queensland, at a minimum, the character reference must:
- be addressed to 'The Presiding Magistrate';
- acknowledge that the person writing the reference is aware of the offences that you have been charged with, and that you are pleading guilty to those offences;
- explain the capacity in which the referee knows you (e.g., employer or family friend) and how long they have known you;
- not make any statements that are misleading or inaccurate (e.g., if a person has a history of committing drink driving, it would be misleading for the referee to say that the offence of drink driving was out of character for you); and
- be signed and dated.
The character reference should of course also say positive things that are tailored to you and your particular circumstances. For example, it might explain that you are 'hard-working', or that you have expressed remorse to the referee about your offending.
In many cases, it is appropriate for a person to seek counselling about their offending. For example, a person charged with assault might seek anger management counselling.
If you do engage with such services, you should request that they provide you with a letter that is addressed to the Court that explains the services that they have provided to you.
In some circumstances, where you intend to plead guilty, it may be appropriate for you to prepare a written apology to your victim. For example, if you are charged with assault, you may prepare a written apology for the victim of the assault.
If you intend to provide a written apology to a victim, you must ensure that doing so does not cause distress to the victim and/or breach any bail conditions that you may have which might, for example, prohibit you from contacting the victim. The safest way to convey an apology is to provide it to the prosecution to pass on to the victim.
You may wish to consider undertaking an educational program designed to educate you about your offending. However, bear in mind that there will not always be an educational program that is relevant to you or your offending.
One example of an educational program that is widely respected in Queensland in relation to traffic offending, is the Queensland Traffic Offenders Program (QTOP). If you are charged with a traffic offence such as drink-driving, you may wish to undertake an educational program such as QTOP so that, upon completion of the educational program, you can tender a copy of the certificate of completion to the Court during sentencing.
Mitigating materials for drug offences
If you are charged with a drug-related offence, you may wish to engage with a service such as Lives Lived Well who will be able to assist you with your drug abuse issues. They may also be able to provide a letter addressed to the Court that explains, for example, that you are currently receiving support in relation to your drug abuse issues.
You may also wish to engage in regular drug testing which demonstrates that, for a period of time leading up to and including the date of sentencing, you are no longer using the drug to which the charges against you relate (or any other dangerous drug).
If you have a medical condition that is relevant to your offending, it may be appropriate to obtain a letter or report from a doctor or other appropriate health practitioner.
Where you should obtain the letter or report from will depend on the seriousness of the offending and the complexity of the medical condition. For example, in some simple cases, a letter from a general practitioner will suffice. However, in other more serious or complex cases, a report from a specialist such as a psychiatrist may be necessary.
The purpose of the letter or report may be to explain the context of the offending or to demonstrate that you are seeking appropriate treatment to address the underlying issues that led to your offending occurring in the first place.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.