The Recipe – A Plea in Mitigation
By Jarrod Gutsa, Construction and Planning Lawyer, Lovegrove Smith & Cotton
February 2014
“Keep in mind…that no one thinks himself a villain, and few make decisions they think are wrong. A person may dislike his choice, but he will stand by it because, even in the worst circumstances, he believes that it was the best option available to him at the time.”[1]
This quote epitomizes the flaw in the human condition, the contradiction if you will – the need for self preservation, the need to not admit we are wrong, against the need to fess up!
One must overcome the need to not admit one is wrong when faced with an overwhelming body of evidence to the contrary. Professor Lovegrove attests to this very notion in Chapter 6 of Disciplinary Hearings and Advocacy[2], “If there is a prima facie case in the prosecutor’s favour and the evidence is overwhelming and irrefutable, and of course if [one] knows that he/she has transgressed, then it would be difficult to identify any mileage in contesting the matter.”[3] In this type of situation, one needs to come to terms with what has occurred, accept it, and then consider how to mitigate. As “Where there is a finding of guilt, it is paramount that one makes an effective plea in mitigation”[4], at an early stage.
However a plea in mitigation should not be done in a hurried manner but rather should be a considered affair, as “A poor plea of mitigation can have a deleterious impact on the disposition of the decision maker”[5]. A plea in mitigation like any recipe must contain essential elements, and as with cooking the ingredients must be “fresh”.
References
“Fresh” references are of paramount importance to a plea in mitigation. By ‘fresh’ the author means that the references must be obtained close to the time of the hearing. The older a reference the less weight a decision maker will generally attribute to it. The references must be given by suitable referees of good repute. It is highly advantageous if the referee has specific knowledge pertaining to the alleged offence committed.
Economic Circumstances & Social Circumstances
In a plea of mitigation, it is pivotal to inform the decision maker of one’s financial and social circumstances. When imposing a fine or other financial penalty the decision maker will take into account the ability for the defendant to pay.[6] Furthermore it is in one’s interest to provide the decision maker with some context concerning one’s family circumstance, thus they consider the conduct in light of the factual matrix as to how the conduct occurred.
Ownership
When entering a plea in mitigation one must ‘fess up’. A defendant cannot afford to view their conduct through ‘rose coloured’ spectacles. The decision maker, must be convinced that there is real evidence of contrition and remorse for what has occurred and that the defendant understands the gravity of the charges leveled against him/her. There is no currency in one trying to ‘gloss over’ what has occurred without taking full responsibility and ownership. This may seem like a truism; however consider the above and the human instinct to view oneself in a better light, there is no room in a plea for mitigation for comforting misconceptions of what has occurred.
The Outlook
The last but perhaps the most crucial ingredient in a plea of mitigation, is to persuade the decision maker that one has changed. This is especially critical if there is a pattern of conduct in relation to the charge. A defendant needs to demonstrate that either the behavior was aberrational from their normal conduct or that since the conduct occurred the defendant now conducts themselves differently. This can be demonstrated in a variety of ways such as undertaking courses that are relevant to the charge or providing documentation as to how one has changed their business practices.
Conclusion
The above provides just a few of the key ingredients necessary in a plea of mitigation. If one wishes to gain more knowledge on this area please watch Professor Lovegrove’s F.A.I.B video titled ‘Doing a Plea in Mitigation’, which can be accessed by clicking here. Furthermore one should read Chapter 6 of Disciplinary Hearings and Advocacy, this chapter provides a thorough and detailed analysis of the essential elements in a plea for mitigation.
