Aggravating and mitigating factors
On conviction of a driving offence, the court will then consider an appropriate sentence to impose on the defendant. The court is required to have regard to a number of factors in deciding the appropriate penalty.
Those factors include aggravating factors – which raise the seriousness of the offence and will probably lead to a higher sentence; and mitigating factors – which may lead to a less severe penalty.
Special reasons may also be considered by the courts (see below).
Aggravating factors are factors that make the offence more serious than it might otherwise have been. For example, if the defendant was speeding and under the influence of alcohol, his culpability will be greater if there is one or more aggravating factors present at the time of the offence, including:
- He was driving competitively against another motorist
- Disregarding warnings from fellow passengers
- Bad weather conditions
- Had young children in the car
- Was distracted by a mobile device
- Was sleep deprived
- Driving in a highly populated/busy area
Other aggravating factors that the court may consider include driving without a licence, insurance or whilst disqualified; and using a stolen vehicle or driving without consent. The court may also take into account any relevant past motoring convictions, particularly any convictions of driving whilst excessively intoxicated, or offences that involve bad driving.
Other types of conduct on the part of the defendant(apart from at the time of the offence itself)may also be considered aggravating factors. This may include failing to stop, falsely blaming a victim or passenger for the accident, or committing the offence whilst on bail.
Before sentencing, the defendant’s solicitor will provide the court with a plea in mitigation on the defendant’s behalf. The aim of a plea in mitigation is to reduce the sentence that the court will impose.
For instance, if the court has a discretion to disqualify the defendant from driving, the solicitor will try to persuade the court not to disqualify the defendant and impose the lowest amount of penalty points it is able to. Alternatively, if the court decides to disqualify the defendant, the solicitor will try to persuade the court to impose a period of disqualification as short as possible for the particular offence – taking account of all mitigating factors presented to the court.
Where there is a serious driving offence and the court is considering a custodial sentence, mitigating factors should be presented to persuade the court to deal with the matter other than by way of imprisonment, such as a community sentence, or a fine.
Examples of mitigating factors including matters relating to the offence itself, for instance, the defendant’s speed was not excessive, there was little traffic around, there was only a momentary lapse in concentration, only minor damage was caused, and the defendant entered an early guilty plea.
Mitigation factors relating to the defendant him/herself (and their personal circumstances) include the defendant’s youth; any remorse shown; it was a first offence; the defendant’s drink was spiked; he was vulnerable; has a clean driving licence, and so on.
An example of where mitigating factors really come into their own is in relation to totting up. Once the defendant accumulates 12 penalty points the court can impose a disqualification from driving for a period of at least 6 months. However, if the defendant can prove that mitigating factors exist, for instance, it would create exceptional hardship, the defendant may be able to avoid disqualification(or at least reduce the period of disqualification).
If, on conviction, an obligatory disqualification is likely to apply, or the defendant’s licence is to be endorsed with penalty points, the court may consider ‘special reasons’ why such disqualification/penalties should not be imposed.
For a matter to amount to a special reason, it must be mitigating or extenuating circumstance, and must not be a defence to the charge. Those circumstances must be directly connected to the offence and it must be a matter which the court ought to take into account when imposing a sentence. Special reasons may include that the defendant’s drinks were spiked, or there was a medical emergency.
Where special reasons are accepted by the court, the court has a discretion not to disqualify the defendant (or to limited the period of disqualification), or impose penalty points instead. It can also decide to either impose the required penalty points for the particular offence – or none at all. The court cannot impose a lower number of penalty points than the offence would normally carry.