Published in May 2018

Regional Perspective: Pacific Islands Region - added in November 2019

Regional Perspective: Eastern and Southern Africa - added in April 2020

 

 
  This module is a resource for lecturers  

 

Aggravating and mitigating factors

 

Careful consideration of the seriousness of the crime and the seriousness of the offender is crucial to selecting an appropriate sentence under any of the listed rationales. Judges, who impose criminal sentences in most cases, consider aggravating and mitigating factors. Common factors to be considered are included in the box below. As is the case in all criminal sentences, the final punishment involves a balancing of these factors in the context of the background of the offender and the facts of the case.

Aggravating and mitigating factors

Aggravating factors can include:

  • Previous conviction(s), particularly for serious offences.
  • Evidence of prior planning.
  • More serious harm was intended than actually resulted.
  • The offence was committed as part of an organized criminal group.
  • The offence was motivated by financial or material gain.
  • Attempts to frustrate or impede the administration of justice.
  • The offender committed crime while subject to pre-trial or sentence conditions.
  • Vulnerable victim(s) were targeted.
  • Weapons were used to frighten or injure victim(s) or persons known to them.
  • Deliberate, repeated or gratuitous violence or other forms of degradation were used.
  • Offenders abused a position of power, authority or trust.
  • There were multiple victims or multiple incidents.

Mitigating factors can include:

  • It is the offender's first offence.
  • The offender:
    • Is of previous good character.
    • Has shown remorse or good conduct following arrest.
    • Committed the offence under duress.
    • Is very young/old.
    • Had a minor role in the offence.

Aggravating factors often include the intention of the offender, the extent of criminal planning involved, abuse of a position of authority, offence was carried out in conjunction with an organized criminal group, the extent of physical or economic harm to the victim, the status of the victim (e.g., a child, disabled, or elderly person), and any criminal records of the offender. Additional aggravating factors can include the level of participation in an organized criminal group, whether or not serious injury or death results, and repeat offending.

Mitigating factors include previous good character, remorse or good conduct following arrest, voluntary compensation of victims, a full admission of facts and guilt, duress, very young or old age or minor role in the offence. Additional mitigating factors would also include giving evidence for prosecution, the offence was committed long time ago, small or no harm done or delay in proceedings.

Aggravating and mitigating factors are sometimes listed in domestic statutes or in case law. In some cases, they are included in sentencing guidelines established to provide greater consistency in sentencing across judges, cases, and jurisdictions (European Union and UNODC, 2016).

Female offenders

In 2010, in the UK it was recommended that women receive more lenient sentences than men. (Judicial Studies Board, 2010) Therefore, sex and motherhood was suggested to be a factor to be considered in sentencing - not gender identity or parenthood. In 2013 the then Minister for Justice recommended that women serve sentences closer to home and their children, in order to break the cycle of reoffending (please, see also case below) (Ministry of Justice of the United Kingdom, 2013). Reference was made to the low level of violence that often accompanies crimes committed by women. Nonetheless, the suggestion to take into account the experiences of women criminals was not accompanied by more structural remedies and doubts have been expressed as to how to reflect the recommendations: as a result of the fact that there are fewer women offenders, there are fewer approved facilities for women in that country.

The Supreme Court of the United Kingdom, in Coll v Secretary of State for Justice (UKSC [2017] 40), ruled in May 2017 that female offenders are "directly discriminated" against because of a severe lack of approved premises for women in the UK, which often sees them placed far from their homes and families. Formerly known as probation or bail hostels, approved premises (APs) are residential units which house offenders in the community. Living in one may be made a condition of release on licence for certain prisoners. While there are 94 approved premises for men across England and Wales, there are only six for women and none in London. Being required to live in an approved premise a long way from home was a "detriment," the judge ruled.

Ms. Coll, the appellant in the case in question, was from London, and upon release from prison was forced to relocate far outside the city due to the lack of any approved premises for women in London. Ruling in her favour, the judge said that provision of approved premises constitutes direct discrimination against women "which is unlawful unless justified." Even though the number of approved premises for women and men is fairly proportionate to the prison population, the geographical distribution of the small number of approved premises available for women meant she was treated less favourably than a man because of her sex.  
 

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