Pillar 4: Sentencing

Making Effective Sentencing Submissions

Sentencing submissions represent the final and often most consequential stage of a criminal matter. The quality of submissions, the preparation of supporting material, and the structure of advocacy can determine the difference between custody and liberty.

The CORE Defence Submission Framework

CORE Defence Lawyers structures sentencing submissions to systematically address every matter the court must consider, presenting the client's circumstances in the most favourable light the evidence permits.

1
Objective Seriousness Assessment
Establish where the offence falls on the spectrum of seriousness for this type of offending. Reference the maximum penalty, comparable cases, and sentencing statistics from the Judicial Commission (JIRS). The goal is to anchor the court's assessment in the lower range.
2
Aggravating Factors: Acknowledgement and Context
Acknowledge applicable aggravating factors honestly while contextualising their weight. Challenge prosecution assertions where evidence does not support aggravation. Identify double-counting errors where the prosecution relies on elements of the offence as aggravation.
3
Mitigating Factors: Evidence-Based Presentation
Present every available mitigating factor with supporting evidence. Each mitigating factor should be linked to a specific purpose of sentencing that it satisfies. Tender character references, medical reports, employment evidence, and rehabilitation material.
4
Subjective Case: The Whole Person
Present the offender as a complete person. Personal history, family circumstances, employment, mental health, community contribution, and cultural background all inform the sentencing exercise. Bugmy and Fernando principles are raised where applicable.
5
Sentencing Range: Comparable Authorities
Propose an appropriate sentencing range supported by comparable decisions and JIRS statistics. Demonstrate that the proposed sentence is consistent with sentences imposed in similar cases and falls within the range of reasonable outcomes.
6
Specific Order: Clear Articulation
Clearly articulate the specific sentencing option sought and explain why it is appropriate in all the circumstances. Address how the proposed order satisfies each applicable purpose of sentencing under s 3A of the Act.

Preparing Supporting Material

Character References

Character references are a critical component of sentencing submissions. They provide the court with evidence of the offender's good character, community standing, and the offence being out of character. Effective references:

Are addressed to "The Presiding Magistrate" or "The Presiding Judge"
Identify the author's relationship to the offender and its duration
Acknowledge awareness of the charges (without detailing them)
Speak to specific positive character traits with concrete examples
Express genuine surprise that the offender is before the court
Offer ongoing support for the offender's rehabilitation
Include the author's full name, occupation, and contact details

"The most effective character references are those that paint a picture of the person behind the charges. They help the court understand that this offending does not define the person."

CORE Defence Lawyers practice note

Medical and Psychological Reports

Where mental health, cognitive impairment, or substance abuse contributed to the offending, a report from a treating or independent practitioner is essential. The report should address:

Diagnosis and treatment history
The causal connection (if any) between the condition and the offending
Current treatment and prognosis
Impact of potential custodial sentence on the offender's condition
Rehabilitation recommendations

Employment and Educational Evidence

Letters from employers confirming ongoing employment, employment history, and the consequences of a custodial sentence or conviction on employment. Educational transcripts and enrolment records demonstrating commitment to self-improvement.

Rehabilitation Evidence

Completion certificates for relevant programs (drug and alcohol counselling, anger management, domestic violence intervention programs), letters from counsellors or case workers, and evidence of ongoing engagement with support services.

Oral Advocacy: Principles of Effective Submission

Be Concise and Structured

Courts appreciate submissions that are well-organised and do not waste time. Address each relevant matter in a logical order. Do not repeat points or labour the obvious.

Be Honest and Realistic

Acknowledge weaknesses in the subjective case rather than ignoring them. A realistic submission carries more weight than an unrealistic one. If the prosecution identifies legitimate aggravating factors, acknowledge them while contextualising their weight.

Connect to the Law

Every submission should be anchored in a legal principle. Rather than merely asserting that leniency is warranted, identify the specific statutory provision, sentencing principle, or appellate authority that supports the submission.

Address Purposes of Sentencing

Demonstrate how the proposed sentence satisfies the purposes of sentencing under s 3A. If arguing against imprisonment, explain how each purpose (punishment, deterrence, protection, rehabilitation, accountability, denunciation) can be adequately served by the proposed alternative.

Use Comparable Cases Strategically

Select comparable cases that support the proposed outcome. Distinguish unfavourable authorities by reference to factual differences. JIRS statistics provide a useful baseline but must be contextualised with reference to specific cases.

Common Pitfalls in Sentencing Submissions

Inadequate Preparation

Failing to obtain and tender supporting material. Character references, medical reports, and rehabilitation evidence should be prepared well before the sentencing date. Last-minute requests for adjournment to obtain material reflect poorly on the defence.

Unrealistic Submissions

Asking for an outcome that is plainly inappropriate given the objective seriousness and subjective circumstances. This undermines credibility and may cause the court to discount the entirety of the submissions. A realistic submission demonstrates competence and earns judicial respect.

Ignoring the Prosecution Case

Failing to address the prosecution's submissions on aggravation or the appropriate sentencing range. Effective defence submissions engage with and respond to the prosecution case, rather than ignoring it.

Poor Quality References

Generic or formulaic references that do not demonstrate genuine knowledge of the offender. References that deny the offending or attack the victim are counterproductive and may harm the case.

Sentence Indication

Under Part 3, Division 1A of the Crimes (Sentencing Procedure) Act 1999, a court may provide an indication of the sentence it would impose if the offender were to plead guilty. This is a valuable tool that allows the defence to obtain clarity on the likely outcome before a plea is entered.

The indication is not binding on the court that ultimately sentences the offender, but in practice it provides significant guidance. A sentence indication may reveal that the court is considering a more lenient outcome than anticipated, making a guilty plea more attractive.