I was invited to give a talk on 14 July 2016 at the Selangor Bar to pupils about how to mitigate an accused’s person’s sentence. I feel pretty sure they were not expecting a speech like this.
To give context to this speech, I enclose 2 documents that form the backdrop to the talk.
The first is the Mitigation Submission Template issued to pupils when they are assigned for the dock brief programme. The second is a set of facts titled PP v Sally Tan. We use it sometimes to train young lawyers for sentence mitigation. Reading them makes the talk sensible and coherent. Skim through the first but give the second a read. That will help you appreciate my mitigation speech later on in the speech.
Finally, the speech reproduced is a revised version; not the one I actually delivered, but it’s close. It is to me the best version of this speech. That’s, of course, on the assumption that such a version is possible.
I am here to deliver a talk about how to do mitigation. I don’t think there’s a standard way to do mitigation. But there are some things you should be aware of when crafting your mitigation.
What I will be talking about are jumping off points. I just want to be clear on that. I want you to start thinking about how you approach your mitigation in a way you think best when you apply your mind to it.
Before I get into that, I want to first talk about how I see the state of mitigation in criminal practice in Malaysia as it is today.
It is dismal. The mitigation is treated like a call speech. An afterthought. All importance and solemnness of the occasion is ripped away to tame the beast of efficiency.
The mitigation, like the call speech, has become formatted, fossilized and rendered infertile. The same words have been spoken, in the same order, over and over, without thought or consideration; that the judge also tires of it and in doing so, pays less attention to mitigation submissions.
How many times have you heard the same drone in court?
Tertuduh telah mengaku salah dan ini telah menjimatkan masa Mahkamah, pendakwa raya dan saksi-saksi berkenaan.
Ini adalah kesalahan pertama tertuduh.
Tertuduh muda sewaktu kejadian.
Tertuduh adalah anak ke-X dalam keluarga. Mak. Sakit. Bapa. Darah tinggi. Tanggung adik yang sekolah.
Tertuduh bekerja sebagai so-and-so. Pendapatan RM 800. Sumbang rumah RM 150.
Blah blah blah
That’s what I call the template speech. It’s a horrible, horrible thing. You can template contracts. You can template material objects. You can template data. You can template code. But you cannot template a speech that is meant to persuade someone.
Mitigation does not work like Aladdin’s magic cave where you mumble the right words in the correct order with the appropriate inflection which causes the cave of mercy to open. Another word I have for a template speech is ‘The Abracadabra’. Stay away from The Abracadabra. Understand that a Magistrate is a human being that wants to do justice, can be persuaded, gets bored and has sat there for some time so he has pretty much heard it all before.
How would you feel if you had to sit through one of those types of mitigation? Actually, it’s not just sitting – you have to listen carefully, make notes, be interested – or pretend to be, and after that make a decision, and then maybe write brief grounds for their decision. Now, imagine you have to do all that 10 times every day. For several weeks. Perhaps years even. And maybe more than 10 times day.
Does that sound like heaven to you?
To me, that is one persuasive version of hell: Damned to hear the same damn thing day in day out for a long time.
So give the Magistrate a break. Have mercy on them. Everyone is giving them hell. Everyone does The Abracadabra. Be the one that gives them a slice of heaven. Be the one that gives them something to look forward to – an engaging mitigation submission.
So lesson one is No Abracadabra. Throw away the template speech. Burn it. Shred it. If you haven’t read it – print it out and then throw it, burn it or shred it. It’s cathartic.
So where do we start? We can start at the beginning of your mitigation.
Understand your client is already convicted. The court has decided that he committed the crime and intended to do it.
So lesson two is don’t try to justify what he did. Instead, express your client’s contrition. Wax lyrical about his regret at not being able to take it all back; go on about the deep throbbing pain he now feels at the thought of the pain he caused the victim; his soul-searching attempts at wondering whether to directly apologize to the victim, etc. Your client acknowledges he has done a bad thing. He cannot say sorry enough.
Shouldn’t this be one of the top most things to do in a mitigation? Doesn’t expressing, and where possible demonstrating genuine regret, and apologizing right at the start suggests your client’s contrition – as compared to talking about how much time he saved everyone by pleading guilty? That’s narcissism, not contrition.
For me, the apology is always first. Why leave the apology so late? Save the best for last kind of thing is it? With your spouse or partner maybe, but not in mitigation or submission. Last means least important or urgent.
Last thing about apologies. I said it was important most of the time. So understand it is not all the time. A case in point is those ‘victimless’ crimes so to speak like drug trafficking, or possession.
The need for that is less urgent here. Who are you going to apologize to? The police investigators that busted your client?
In such cases, an apology isn’t a strong mitigation point and should not be at the top of your list. But the point here is this – think about what you are doing.
Lesson three. The order in which you present your mitigating issues matters. In court, the first thing you raise is naturally thought of as the most important, the second the second most important and so on. So an apology should be in your top 3 points to address, if it applies.
Lesson four is focus on the facts first. F F F. In short, F it up.
Your next mitigating factor should come from the facts of the offence or facts relating to it. It should come from the facts pleaded guilty to or the facts that were adduced during trial. It should start with this thought: Why should our client not get so harsh a punishment despite what he did?
Let’s look at these set of facts [PP v Sally Tan facts]. Let’s consider them very carefully.
Ms Tan is charged with common assault – section 323 Penal Code.
Looking at these facts – what is the mitigating factor that you can discern on the facts?
Answer: The fact that Mr Chan provoked him/her into kicking him in the groin with her stilettos.
This is the bit that you need to focus and work on first. All those other things like first offence, has a hard life, etc. can wait. This is the most important thing because here we are trying to say – yes, he did it but he should not get a high/harsh sentence because … .
This brings me to lesson five. Marshal your facts. Make the most of them. Squeeze blood from rock. Lesson six: spin said blood into a narrative. People are persuaded by stories. Judges are people. Ergo, judges are likely to be persuaded by stories. I’ll illustrate both these lessons here.
I have used these facts [PP v Sally Tan facts] when teaching mitigation in advocacy training courses.
Do you know what the usual line of mitigation is for these facts?
‘The accused didn’t mean it.’
‘The accused was aiming somewhere else but actually caught his groin.’
‘The accused did it as a warning.’
‘The accused was provoked.’
There is no narrative when they mitigate on the facts. There are a lot of facts in this particular issue – make the most of them.
This is an example of how I could marshal the facts and spin a narrative from them:
A custodial sentence should not be given to the accused on these facts. Why? Because Mr Chan provoked her into kicking him. Why do I say this? The facts are this: Mr Chan hired the accused for sexual intercourse. He was disappointed when it turned out Ms Tan was a Mr Tan. That’s normal. Any ordinary and reasonable man would feel so.
But an ordinary and reasonable man would not become extremely abusive towards Ms Tan. He would tell her, thank you this is not my thing, you may leave. What does Mr Chan do? After being extremely abusive he chased her out of the room, down the stairs and through the lobby, all the while verbally abusing Ms Tan.
He didn’t stop there. He followed her out of the hotel and into the street while continually verbally abusing her. When she turned around and told him to leave her alone – he kept on with his verbal abuse.
Ms Tan’s first instinct wasn’t to kick him. Her first instinct to tell him to leave her alone. But he didn’t.
It is at this point that Ms Tan lost her temper and kicked him in the groin – long after they have left the room, exited the hotel and after a warning to leave her alone. Granted Ms Tan should not have lashed out. It was not what a reasonable person would do.
But did Mr Chan behave reasonably and appropriately? Ms Tan regrets lashing out at him. But at that moment she was frustrated and didn’t know what to do. Mr Chan is not the true victim here.
See how much I have used from those facts. See how I spin a little narrative with these facts. I hope I have anyway. Now – how often have you heard a mitigation like that in court? How common is it to hear something like this? I can tell you – rarely. It’s only if you are rich enough and have the big boys mitigate for you.
Now what happens when you do something different from everybody else?
If you do it right, you stand out. If you stand out, that means the Judge is paying attention. To you. He wants to know. He is listening. That is the best time to persuade him.
So lesson seven – be different, be interesting. Prepare for each submission. Make every submission different. Make each submission count. Your submission is your creative endeavour, it is not modifying an Abrcadabra. You are crafting and creating some new. Find a new angle. Every time. The more often you do it – the easier it gets. The more interesting your submission becomes. Perhaps in time, even you will be interesting.
Lesson eight. Make it a point to work through the 3Fs before moving on to the usual factors – plea of guilty, juvenile offender, etc. – everyone has heard those before. Instill this exercise in your workflow for the next few years. What will happen? You will be better and you will help change the idea of what a mitigation is and how it should be conducted.
Don’t go there and do a mitigation that thousands of lawyers have done before you.
Lesson nine: Appeals against mitigation. Consider the situation and decide whether your client should appeal against a sentence.
Sometimes a sentence is fair and should not be disturbed.
I had a case like this last month.
The accused had 2 appeals. Both were similar offences with different victims on different occasions. In both cases he committed aggravated rape, non-consensual oral sex and robbery. I found no redeeming features to the crime that I could seriously rely on. At the Sessions Court he got hit with 16 years for the aggravated rapes in both cases, 12 years for the non-consensual oral sex and 10 years for the robbery. The sentence for one appeal to run consecutively after the other.
On appeal to the High Court, all the offences were reduced to 10 years. It was a very good deal. He didn’t have a lawyer at the High Court. All he said was, please give me a lesser sentence and the High Court Judge obliged.
The accused then appealed against the sentence. When I looked at the facts and the reduced sentence, I thought he was lucky. Very lucky. I felt the High Court Judge’s written grounds would not hold up to scrutiny. I could easily find fault with it but I doubt we would get anything less than 10 years.
On the morning of the appeal in the Court of Appeal, I told him that he had a good a sentence as he could get and advised against proceeding with his appeal. Especially given the quorum. I warned him that if he appealed the court could even increase his sentence, and that was likely given how he committed the offences. That was my main concern. Because the court can do that.
Despite that he instructed me to proceed with the appeal.
What do you do when your client tells you to do something not in his best interest?
In these cases, it’s always a personal judgment call. I decided to proceed and not proceed with the appeal. What do I mean?
I stood up and asked the Court of Appeal to dismiss the appeal.
Needless to say the Court was surprised and asked why I didn’t want to withdraw it. I replied that I had considered the record and agreed that the High Court sentence was reasonable and the appeal should be dismissed.
The chairing Court of Appeal judge asked the DPP, Did you file a cross-appeal? The DPP replied, No. The Judge asked, Why didn’t the prosecution file an appeal? The DPP replied that she had no instructions to file one but mentioned that if I were to proceed with the appeal she would press the court for a higher sentence. The Court of Appeal retorted that the prosecution should have filed its cross-appeal if it were serious about a higher sentence and dismissed the appeal.
When I met my client after the case he thanked me for doing what I did. He said he felt the chairing judge wanted to increase the sentence if we proceeded. I told him that was likely if he insisted given the facts.
Final lesson: Take mitigation seriously. Prepare for it. If it’s through a trial, lay the groundwork for that during the trial. Ask questions that show the accused in a better light. Of course, we try our best to win. But we need to also have something helpful for us if we don’t win. If it’s a plea of guilty, then think long and hard about the facts and about human behaviour.
If you don’t take mitigation seriously, how can you expect the judge to do so?
Find that redeeming factor for your client to explain why he should not get a harsh punishment. And make your submission interesting, heartfelt and persuasive. If you are not doing even one of those, you are wasting everybody’s time.