Mitigating Factors in a Criminal Case

In a typical criminal case, if the accused person chooses to plead guilty, or at the conclusion of a criminal trial where the accused person is found to be guilty, the accused person will be convicted of the charge(s) brought against them.

The next stage is then the sentencing stage, which is when the court will be informed of the offender’s prior criminal records (if any), and will hear submissions from the Prosecution on the appropriate sentence to be imposed, considering any relevant factors that will affect the sentence. The Defence (either the offender’s legal counsel or the offender if they are self-represented) may then make a plea in mitigation (otherwise known as a mitigation plea), seeking a reduced sentence. The Prosecution typically has a right to reply to the mitigation plea.

For a more detailed discussion on the mitigation plea, you can refer to our other article on how to plead for leniency in court in Singapore.

Typically, the Prosecution will highlight the presence of aggravating factors in the case, while the Defence will try to bring the court’s attention to the presence of mitigating factors in the case. The objective of doing so on the part of the Prosecution and the Defence is usually to persuade the court to impose either a heavier or lighter sentence on the offender respectively. After hearing both parties, the court will then sentence the offender in line with judicial precedents.

This article is intended to explain what are mitigating factors in a criminal case, and how they affect the sentence meted out on convicted offenders. To shed light on this, this article will cover the following topics:

• What are mitigating factors?
• What are the different types of mitigating factors?
• Examples of offence-specific mitigating factors
• Examples of offender-specific mitigating factors

This article only covers the “mitigating factors”. Please refer to our other article for a discussion on the “aggravating factors”.

What are Mitigating Factors?

Mitigating factors refer to factors which either reduce an offender’s culpability (i.e. the blameworthiness of the offender’s actions) compared to the nature of the offence, give credit to the offender, or justify the calibration of the sentence to moderate its impact on the offender.

Examples of mitigating factors include the offender’s young age, that the offender cooperated fully with the authorities or is assessed to be unlikely to reoffend.

What are the Different Types of Mitigating Factors?

Broadly speaking, mitigating factors can be categorised into:

1. Offence-specific mitigating factors, i.e. factors which relate to the circumstances of the offence, such as the manner and mode by which the offence was committed.
2. Offender-specific mitigating factors, i.e. factors which relate to the particular personal circumstances of the offender.

Offence-Specific Mitigating Factors

Examples of offence-specific mitigating factors are listed below. However, do note that these examples are non-exhaustive. Ultimately, as the mitigating factors are specific to the offence in question, whether something is an offence-specific mitigating factor would depend on the offence in question.

The factors discussed below are merely illustrative of the types of offence-specific mitigating factors, with references to the examples cited.

• Offence was committed due to provocation: If the offender committed the offence due to provocation from the victim, then it could mitigate the offender’s culpability or the seriousness of the offence. This may come into play in two situations:
  1. First, as mentioned in our other article on legal defences in criminal law: special exceptions, grave and sudden provocation is a partial defence to murder and has the effect of reducing the charge from murder to one of culpable homicide not amounting to murder, if successful. Therefore, in the context of a murder offence, the offender may seek to rely on the defence of grave and sudden provocation. However, if the offender is not successful in proving that the elements are satisfied, e.g. because there was provocation, but the provocation was not “grave and sudden”, the offender may still rely on the relationship between the victim’s provocative conduct and their commission of the offence, which may still mitigate the offender’s culpability – though this would depend on the facts of the case.
  2. Second, for offences other than murder, where the defence of provocation does not apply, the victim’s provocative conduct which led to the commission of the offence may also mitigate the offender’s culpability.

• Offender was pressured into committing the offence: If the offender is under such significant pressure that their capacity for independent action was affected, then this may be a mitigating factor. The rationale for this is that if the offender only committed the offence while motivated by fear, this reduces their culpability. For example, in the case of Zhao Zhipeng v PP, the offender (a foreign national who played in a local football club) was convicted of match-fixing. It was shown that the offender’s club manager was a domineering person. The offender, who had recently moved to Singapore from China, was afraid of antagonising his manager, as his manager had mentioned that he had triad connections in China and would hurt the offender and his family if he did not follow his instructions to fix the matches. The court found that the offender’s capacity for independent action was diminished, and so his culpability for the offence was low.
• Offender had a minor role in the offence (for group offences): If the offender had a minor role to play in a group offence, especially compared to the others, then this is a mitigating factor. For example, in Public Prosecutor v Daniel Vijay s/o Katherasan and another, the offenders were convicted for the offence of robbery with hurt. In relation to one of the offenders, who was the get-away driver, the court considered that his role was a peripheral and limited one. He did not participate in the assault on the victim, and he received only a small amount of the proceeds of the crime for his role. The court also noted that he was controlled by his co-offender throughout, and was just a follower of instructions. Thus, the court found that his culpability was significantly lower than that of the other co-offenders.

Offender-Specific Mitigating Factors

A few non-exhaustive examples of commonly identified offender-specific mitigating factors are set out below:

• Display of evident remorse: If an offender displays evident remorse, this is typically a mitigating factor. Remorse can be demonstrated in various ways, including cooperation with the police, or apologising to the victim after committing the offence. However, what is important is that the remorse must be motivated by genuine contriteness or regret, which is something that the court will infer from the circumstances of the case.
• Early plea of guilt: If an offender pleads guilty to the charge instead of claiming trial, this would be a mitigating factor. The justification for reducing offenders’ sentences on account of their plea of guilt is threefold. First, in line with the above factor, a plea of guilt can be a subjective expression of genuine remorse on the part of the offender. Second, a plea of guilt avoids the case having to proceed to trial. This spares the victim from having to go through the process of testifying in court, and having to re-live the incident. This reason is especially compelling for victims of sexual offences, whereby having to recount the incident has the potential to amplify the trauma already suffered by the victim. Lastly, a plea of guilt saves the resources of the State which would otherwise have to be expended if there was a trial.
• Young age: The offender’s young age is a mitigating factor. This is consistent with the general consideration that young offenders (below 21 years old) should be sentenced on the basis of rehabilitation being the dominant sentencing consideration. The rationale underlying this is two-fold. First, young offenders should be afforded second chances, in view of their relative lack of maturity, youthful folly and inexperience, which led to them committing the offences. Second, focusing on rehabilitation discourages young offenders from re-offending in the future. Young offenders may be more receptive towards a sentencing regime that is aimed at guiding them on the right path, and society would also benefit from the rehabilitation of young offenders, who have many potentially productive years ahead of them. However, it must be noted that an offender’s young age as a mitigating factor is of lesser weight when the offences committed by him/her are serious offences (e.g. rape), which must be met with more serious punishment in order to also satisfy the need for deterrence.
• Advanced age: If an offender is of an advanced age (i.e. a senior citizen), this is typically a mitigating factor. However, it must be stressed that it is not the age of the offender per se that warrants a sentencing discount. Rather, it is the concern for the overall proportionality of punishment. The imposition of a long imprisonment term on elderly offenders deprives them of a larger fraction of their expectation of life, as compared to an imprisonment term of the same length imposed on younger offenders.
• Presence of a mental disorder or intellectual disability on the part of the offender which contributed to the offence: If the offender’s mental disorder or intellectual disability affected their ability to understand the nature of the act, then would be a mitigating factor.

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Mitigating factors play a huge role in the sentencing process, because they can affect the eventual sentence that is imposed. Both offence-specific and offender-specific mitigating factors, when successfully raised, can reduce the eventual sentence meted out on the offender.

If you or your loved ones have been charged with a criminal offence, you are strongly encouraged to seek further legal advice from a criminal defence lawyer. The criminal defence lawyer will be able to advise you on whether there are any mitigating factors that can be raised in your specific case. The lawyer may also represent you in the criminal legal process, including in making your mitigation plea, if necessary.