(a) Aggravating Factors
Aggravating factors are factors that the court takes into account in order to increase the severity of punishment. Prosecutors can offer evidence of aggravating factors that would merit a harsh sentence. Further, criminal statutes often identify specific factors that should result in harsher punishments. These may include prior conviction for another crime.
Other aggravating factors typically relate to the circumstances of the offense itself, such as the heinousness of the crime and extent of loss or damage caused to the victim, the community or society at large. The court may also consider the vulnerability of the victim, the role of the offender in the criminal enterprise (such as whether he held a leadership role in planning and executing the crime), the nature of the crime (such a hate crime or terrorist act) and whether or not the crime carries a mandatory minimum sentence.
Other factors that may aggravate the sentence include offences committed while on bail and offenders operating in groups or gangs. Further, ‘professional’ or repeated offending and high level of profit from the offence can lead may aggravate the sentence. An attempt to conceal or dispose of evidence and commission of an offence while under the influence of alcohol or drugs can also aggravate the sentence. The court may also consider abuse of power or a position of trust, multiple victims and the impact of the offence on the victim or society in aggravating the sentence.
(b) Mitigating Factors
These are factors about the personal circumstances of the offender that the court takes into account in order to reduce the severity of the sentence. The offender is usually given an opportunity to present to the court factors which will support a more lenient sentence. Common mitigating factors include mental or physical illness or disability, youth or old age and playing a minor role in the offence. Further, the court may also consider: genuine remorse; co-operation with authorities; lack of a prior criminal record; and culpability of the victim in mitigating the sentence.
Sentencing guidelines provide guidance on factors the court should take into account that may affect the sentence given. They are not binding to the court. They set out different levels of sentence based on the harm caused to the victim and how blameworthy the offender is. In sentencing guidelines regimes, a relatively narrow range of penalties is established and judicial officers are supposed to choose a specific sentence within that range. The guidelines tie sentences to two criteria namely: the seriousness of the crime; and the conduct and antecedents of the offender. The rationale for having sentencing guidelines in place is to:
- Guide decision making.
- Make sentencing fair, consistent and proportionate.
- Have a sentencing foundation that is clear and purposeful.
- Make sentencing decisions logical, comprehensible and transparent.
- Avail the judicial officer a range of options based on other factors external to the crime itself.
- Ensure that sentences meted out meet the goals of sentencing such as rehabilitation, retribution, deterrence etc.
- Allow sentences to reflect current circumstances and needs.
- Ultimately reduce crime.