Sentencing and Mitigating Factors: More Important than Ever

When a crime is committed, a sentence is imposed. What sentence will depend on the nature of the crime, when and if a guilty plea was entered, and the aggravating and mitigating factors.

The Sentencing Council produces offence specific guidelines relating to particular offences. These guidelines typically assess the offender’s ‘culpability’ and the ‘harm’ caused, and any aggravating factors (which may increase the sentence) or mitigating factors (which may decrease the sentence), to be taken into account.

The Sentencing Council’s strategic objectives for 2021 – 2026 committed to monitor the guidelines and promote fairness in sentencing. The consideration of mitigating factors is instrumental to this.

In our blog: The Sentencing Act 2026 – The Most Significant Reform in Over 10 Years - JMW Solicitors, a key reform was identified – the court were granted the power to suspend a sentence of up to 3 years in custody. Prior to this, the threshold was 2-years.

This means that the mitigating factors prepared and advanced by an offender in court, are more important than ever before.

Mitigating Factors

These factors are to be considered and where applicable, applied regardless of the offence for which a person faces sentence. These may include but are not limited to:

• Good character
• Age and immaturity (particularly relevant for offenders aged 18-25, where young adults are still developing neurologically)
• Mental disorder/ Learning disability
• Sole carer for dependents
• Personal circumstances
• Actions of the victim/ third party.

When is Mitigation Important?

Always.

Mitigation is important regardless of the offence committed. However, it is even more important when the sentence of custody imposed can be 3 years or less.

Notably, this may apply to even the most serious offences. For example, the ‘lowest’ category of Causing Death by Dangerous Driving (where the maximum sentence is now life imprisonment – 28 June 2022) can, in limited circumstances, attract a sentence of between 2-5 years' custody.

Whilst previously, to advance an argument for a suspended sentence, the sentence imposed must be one of 2 years, The Sentencing Act 2026 has increased this to 3 years.

In determining sentence, the Judge will consider the culpability and harm. He then provides a ‘starting point’. Aggravating factors will increase the sentence from this starting point. Mitigating factors are applied thereafter and will reduce the sentence. Finally, ‘credit’ for a guilty plea is applied. This again reduces the sentence, resulting in the final figure.

For example: even for an offence as serious as Causing Death by Dangerous Driving, should the Judge start at 4 years and 6 months' custody, he may aggravate the same to 4 years and 9 months. However, the mitigation may bring the sentence back to the starting point of 4 years 6 months. If full ‘credit’ for a guilty plea is afforded, the sentence reaches the 3-year point and may be suspended.

To reach the 3-year mark, it is imperative that the mitigation of the offender is prioritised and expertly delivered.

It should be noted that sentencing is an art not a science. The increase and decrease for aggravation and mitigation can and will vary.

Further, suspension is at the Courts discretion, regardless of if the 3-year mark is reached. However, The Sentencing Act 2026 introduces a presumption in law that, for those over 18 at the time of conviction, a suspended sentence should be issued unless there are ‘exceptional circumstances’ preventing the court from doing so. The effect of this on a defendant requires little explanation.

How Can JMW Assist

Preparation is key, and JMW appreciate this. Regardless of whether you are looking to use your mitigation to advance an argument for exceptional hardship (What Is Exceptional Hardship? - JMW Solicitors), or you are on the cusp of a suspended sentence and detail-orientated mitigation is paramount, JMW Solicitors can help.

We work with Clients to advance their statutory mitigation (good character, age and maturity etc), whilst delving into their personal mitigation (the impact on dependents, mental/ physical health etc).

To achieve the ‘best’ sentence available in the circumstances, expert instruction from the outset is fundamental. It is our job throughout to place you and your case in the optimal position prior to sentencing; from plea, ‘credit’, and mitigation advice to representation at court.