|
The duty solicitor should not work mechanically through this check list when taking instructions; it is a guide only. The focus should be on seeking out information that is relevant to the particular defendant’s case.
QUESTIONS ABOUT THE OFFENCE ITSELF
The instructions you take about the offence will be guided by the allegations. If you have not seen the allegations the instructions you take about what happened will need to be more detailed.
If you have to take initial instructions before having access to the allegations (such as when the defendant is one of the first custodies you see, and the prosecutor is not yet available at court), you must check the allegations before appearing, and if necessary return to the defendant to check inconsistencies in order to ensure that it really is appropriate, and that they continue to instruct that they want to plead guilty.
QUESTIONS ABOUT THE DEFENDANT’S CIRCUMSTANCES
You may find it helpful to work with these broad headings about the defendant’s circumstances:
- Personal Information
- Family History
- Education
- Employment
- Health/drugs/alcohol
- Financial
You may find it useful to use the following detailed checklist:
- Age
- How long the defendant has lived in South Australia?
- Any periods of residence interstate or overseas?
-
Current accommodation: where they are currently living; with parents/partner/in share accommodation with friends/living as a sole parent with a child/living alone; and for how long?
-
Housing status: whether they own their own home or are in private rental/Housing Trust accommodation/emergency shelter accommodation/living on the streets; and for how long?
-
Family relationships: whether single/married/defacto; is the family/household supportive or dysfunctional; any problems during their upbringing such as parental separation/divorce, domestic violence, alcoholism, gambling and so forth.
-
Marital status: whether married/defacto/a new relationship or recently terminated a disruptive relationship; domestic stresses; going through a bad patch; future plans.
-
Education: whether to high school level, what level and why they left school; whether matriculated; learning difficulties; school achievements; any training since leaving school (University, TAFE, CES courses and so forth). Obviously these issues will be rather less relevant with elderly or middle-aged defendants.
-
Employment history: such as the length of work history; retired, currently employed and where? How long? Unemployed; how long since they last worked? Nature of job; why left job; business names of previous employers; any work references; any problems at time of offence due to Centrelink cut-off and so forth
-
Health/drugs/alcohol: such as any chronic or current health problems relevant to the offence or to penalty; surgery planned in near future; health of partner and/or dependants, medication; ongoing counselling or treatment; any mental health problems and diagnosis, medication, treatment, last hospitalisation, community care support; symptoms of the condition and how it affects the defendant’s behaviour; any alcohol, drug, gambling problems and so forth.
NOTE: Use your judgement when indicating significant addiction or mental health problems in a guilty plea for a relatively minor offence which warrants no more than a small fine in itself. Alarmist details may persuade a Magistrate to impose a good behaviour bond which may unnecessarily fetter the defendant for months to come.
-
Recreation: such as regular church attendance; volunteer community work; sports whether social or competitive; hobbies.
-
Impact of offence on defendant: such as time spent in custody already (especially where they have spent a weekend in custody for a minor offence); domestic upheaval; loss of job; embarrassment; repercussions on health. Distinguish whether this will follow from the court appearance, or has already happened (the court will need to know this).
-
Financial circumstances: These are relevant generally, and also specifically as to the issue of the defendant’s capacity to pay fines, court fees, and so forth, and also to how long they will need to pay.
QUESTIONS RELEVANT TO PENALTY
The questions relevant to penalty are about :
-
Extenuating circumstances: for example, the offence occurred following the death of a family member/friend; the defendant had just lost their job; was intoxicated and not used to drinking; had recently started taking medication; was under stress from financial crisis; was sorting out domestic turmoil; had medical/psychiatric problems.
-
The character of the offence: for example, impulsive rather than premeditated; the defendant played a minor role rather than a principal one; was influenced by a stronger personality; nature of the allegations suggest irrational and bizarre behaviour.
NOTE: Be careful as to how you word submissions about the defendant being influenced by a stronger personality. The Court will not be impressed if it thinks the defendant is trying to lay all the blame for their offending on somebody else.
-
The defendant’s manner with the police: whether cooperative; full and frank admissions; immediately expressed contrition; gave police no trouble; volunteered other shoplifted items to police.
-
Compensation issues: whether the defendant is willing and able to compensate victim for any damage/loss; how long is needed to pay?
-
Whether the defendant has already suffered a penalty for this offence: whether they have spent time in custody on arrest and for how long? lost job; are mortified by their own behaviour; have suffered prolonged anxiety about court proceedings.
-
Conduct since offence: for example, they are addressing the underlying problem by marriage counselling, alcohol awareness course, anger management programme, have sought advice from GP, have now registered/sold the car (where traffic offences); have apologised to victim; now have new relationship.
-
Parity issues: for example, was any co-offender dealt with leniently?
-
Effect if conviction recorded: for example, will they be applying for citizenship; hope to travel overseas; are a student; promising career would be jeopardised by conviction.
|
.png)
.jpg)
.jpg)
.jpg)
.png)
.png)
