Mitigation is a right accorded to a convict to submit reasons why the court should be lenient on him or her in the sentence after being found guilty.
When one is found guilty of an offence, the court gives the convict a chance to mitigate personally or through their lawyers.
Once found guilty you are no longer innocent and you have to show remorse for the offence, even if you insisted on your innocence during trial.
Lawyer Danstan Omari says in mitigation, the innocence principal has been shattered, so the convict will plead for leniency.
He said that’s why they apologise for the offence that they have been found to have committed.
“He or she is now asking for mercy and providing reasons as to why his good character should be taken into consideration before sentencing,” Omari said.
The lawyer further said the convict does not plead innocence because already he has been found guilty by the court.
However, he said this does not mean that when they go to appeal that mitigation will be used against them by that court, it will be an appeal on facts of the case not mitigation.
“Mitigation is not factored during an appeal and it can't be ground to say the convict admitted to the offence because he was asking for forgiveness,” he says.
Omari said mitigation is purely for sentence.
However, he says, if the appeal is based on reducing harsh sentence, then the mitigation will be presented to the appeal court so that the court can see whether the mitigation was enough to reduce the sentence.
Previously, capital sentences had one outcome in sentencing; death or life imprisonment. So whether the defence raised mitigation the court relied solely on the penal code to sentence, meaning the discretion of the judge was taken away.
However, the Muruatetu case gave the judicial officers discretion to consider mitigation and circumstances under which the offence was committed when sentencing.
