An initiative by the NUS Faculty of Law's Criminal Justice Club
"Defending those who defend you"
Writing a Good Mitigation Plea
November 1 2016
by Benjamin Heng
One of the most important things that a Defending Officer (DO) has to do is writing a Plea of Mitigation, or a Mitigation Plea, for the accused serviceman whom he represents. A Mitigation Plea is a written document which aims to persuade the court to exercise lenient sentencing, and is submitted after the accused serviceman has pleaded guilty. The Mitigation Plea can make a significant difference in the severity of the punishment meted out to the accused. A poorly crafted plea can even backfire and do the accused more harm than good. Thus, ensuring that the plea is well thought out and defensible in court is really important!
When is a Mitigation Plea required?
Remember that a Mitigation Plea is only required when the accused serviceman has decided to plead guilty. If the accused seeks to contest the charges filed against him, a full defence will have to be conducted, rather than merely mitigation. A Mitigation Plea cannot be used to qualify a guilty plea made by the accused; in other words, it cannot be used to claim (or imply) that the accused is actually not entirely guilty of the offence(s) that he has been charged with. When the accused pleads guilty, it signifies a complete admission to the charge(s), without reservations. A Mitigation Plea is then (and only then) used to persuade the court to issue a lighter sentence.
What does a Defending Officer have to do?
In a General Court Martial, DOs are usually required to submit a written mitigation plea (preferably typed), addressed to the President and Members of the Court. The DO will also usually have to read it aloud in Court. A sense of initiative and responsibility is important, as the onus is on the DO to submit the Mitigation Plea; the Court will not invite or remind DOs to do so. In a Summary Trial, however, mitigating factors may be submitted orally by the accused himself.
How should a Mitigation Plea be written?
The language used in a Mitigation Plea should be concise and impactful. Focus should be placed on significant and appropriate mitigating factors, rather than presenting a long laundry list of poorly-applied arguments, especially those of little relevance.
There are many mitigating factors that a DO can include in a Mitigation Plea, and their respective levels of persuasion would naturally depend on the particular circumstances of the case. However, certain factors, such as age, are more pertinent and significant than others.
If the accused is under 21 years of age, the DO should strive to convince the Court that the accused is still in his formative years, and that it is still possible to reform him. The law does not simply seek to punish, but rather to also reform and rehabilitate. If the Court is convinced that a young offender has committed the offence merely in a moment of folly (due to a lack of maturity or experience to fully appreciate the consequences of his actions), and more importantly, that he can be reformed into a law-abiding citizen, it may opt to mete out alternative sentences which are more rehabilitative in nature, such as counselling, instead of harsher ones like detention. Take note, however, that such factors should only be used where appropriate; for example, if the accused had demonstrated malicious, calculated, and premeditated intent (or exceptional maturity) when committing the offence, this argument might backfire instead.
Acts of gallantry or distinguished conduct, among other valuable contributions to the SAF during the accused’s term of service, are usually taken into consideration. Accolades and achievements such as outstanding soldier awards and other good performance awards (such as for overseas training exercises, National Day Parades, etc.) should be brought to the attention of the Court. General good conduct can also be a helpful mitigating factor. In particular, if the accused’s superior (e.g. his PC, OC or CO) is willing to appear personally in court, or at least provide a certified written reference to testify to the accused’s good character and/or performance while in service, it might go some way in convincing the Court to exercise more lenient sentencing.
The accused’s behaviour can also be a useful mitigating factor. For example, a sincere demonstration of remorse through behaviour such as an immediate and uncontested plea of guilt, full cooperation with the authorities in investigations, or the performance of prompt and voluntary restitution to the victim (such as in cases of theft or damaged items) are factors that should be included in the Mitigation Plea if appropriate. Remember, however, that certain mitigating factors tend to be less convincing to the Court. Factors such as financial hardship and academic or family background usually do not carry much weight, unless there are exceptional circumstances. The DO can also request for a backdating of the custodial sentence to the time when the serviceman was first arrested, or for the concurrent running of sentences (if applicable). However, whether this request is granted is ultimately at the discretion of the Court.
Is help available?
If you are new to the task and require assistance with writing a good Mitigation Plea, you should not hesitate to seek help, as what you do has a direct and significant impact on the accused serviceman whom you represent. Your Unit S1 may be able to point you to some useful resources, or provide some useful advice. You can also speak to other DOs who have more experience in writing Mitigation Pleas. The Singapore Law Gazette also has a comprehensive article on writing a good Mitigation Plea, available at http://www.lawgazette.com.sg/2006-1/Jan06-feature2.htm Although the article is written mainly for lawyers representing clients in a civilian court, it may still be useful in a military context, since many of the skills required are similar.
Writing a good Mitigation Plea is no mean feat, but doing it well can assure and inspire the Court of your ability and reliability as a responsible Defending Officer. That can go a long way in safeguarding the interests of the accused serviceman whom you represent, and perhaps even help him to secure a lighter sentence within the fair limits of justice.