Making your sentence material count

Posted by janelle.tarabay on 11 March 2017

When someone is sentenced for a criminal offence, evidence tendered at the sentence hearing can sometimes be just as important as the arguments made by their lawyer.

Effective arguments (or submissions) made in court should be based on evidence. When there is evidence before the court, arguments made on your behalf have much more force and will be given more weight.

Sometimes having relevant and powerful material before the court can mean the difference between two sentence outcomes.

What material or evidence is used?

A sentence hearing is exactly that, a court hearing where the magistrate or judge decides the appropriate sentence.  Because it is a hearing, evidence is tendered by both the prosecution and defence.

Defence evidence, sometimes called “subjective material”, can include character references, psychological or medical material, affidavits from relevant witnesses, employment records or letters of remorse. There is no exhaustive list, but the material must be relevant and admissible.

Does it differ depending on which court I am in?

In the Local Court, magistrates will often accept matters put to them by lawyers on behalf of their clients without there being any evidence. However, if there is a significant matter raised, the magistrate will want evidence. For example, if someone is going to lose their employment as a result of a conviction, there will need to be evidence supporting that submission.

Similarly, if there is a medical condition that is relevant, there should be some medical evidence to confirm the condition or treatment.

In the District Court or Supreme Court, the requirement to have evidence to support arguments is more strict. It is common for offenders to give oral sworn evidence at their sentence hearing.

How do I know the kind of material to get?

The type of material, and where to get it from, will depend on your specific matter and the issues that arise. Your lawyer can advise you of this early in the process so you can have time to start collecting the evidence.

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