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Am I at Risk of Going to Prison?


The question that has most often been asked of me in my 40 years as a solicitor is, “am I at risk of going to prison?’. Being charged with a criminal offence, subsequently appearing in court, and facing the prospect of imprisonment can be a highly stressful experience.

What are the factors that contribute to the risk of going to prison?

As each matter is unique, the facts of the case need to be considered in a criminal proceeding. The risk of a prison sentence depends on many factors, including:
•the nature and seriousness of the offence;
•the circumstances of the offence;
•the existence of any previous criminal offending.

What circumstances weigh heavily on the outcome of the court case

The personal circumstances of the accused weigh heavily on the outcome of the court case. The following circumstances may be viewed as important facts to the Judge or Magistrate when imposing a sentence.

If a person is young, the court gives greater emphasis to the issue of rehabilitation and potential harmful effects on an individual’s future. Conversely, an elderly person is far less equipped to a cope with a prison sentence, given their physical and often mental state.

The presentation of evidence of good character substantially reduces the risk of going to prison. Thus, the character and lack of any priors is an important consideration in sentencing.

Medical and Mental Health
The psychological, psychiatric or physical state of the offender is a critical criterion to be taken into account in sentencing. If it can be demonstrated that the person was suffering a mental illness at the time of the offence, the court is obliged to take those factors into account prior to imposing judgement. The physical health of the accused person is also an important consideration and it is often necessary for the solicitor to obtain detailed medical reports from doctors, as well as reports from psychiatrists or psychologists. These reports assist the court in understanding the personal circumstances of the accused.

Family circumstances
The circumstances of the immediate and extended family of an accused person are important issues to be raised by the solicitor when discussing the issue of a potential prison sentence. Such factors as health, financial and emotional dependence, and the effect of a prison sentence on the family are issues that a competent solicitor ought raise with the court.

Stability of employment
The court will consider whether a person has either a stable job history, or the potential to embark on a sustainable career path. Evidence ought be adduced to not only acknowledge the stability of the offender, but to demonstrate the harm and detrimental effect that a prison sentence would have on the future of the accused.

Drug or alcohol addiction
If a client is suffering a drug or alcohol addiction, it is essential for the solicitor to identify the issues pertaining to the addiction, as well as provide reports to the court in relation to the impact of the addiction. It may be appropriate for the solicitor to encourage the offender to engage in appropriate counselling and in extreme cases the accused will need to enter a rehabilitation clinic to address their addiction. The court may take the persons addiction, attitudes towards treatment and rehabilitation, and steps taken to address the issue, into consideration during sentencing, particularly if imprisonment is a possible outcome.

It is clear that the criminal lawyer must undertake a considerable amount of preparation to not only minimise their client’s risk of a prison sentence, but also to assist that person to rehabilitate and to abstain from any further criminal offending.

If the case is not prepared properly by the criminal lawyer, the court will be unaware of all the relevant details that can assist an offender in the sentencing process. Whilst a lawyer cannot in all cases reduce the stress of the accused associated with a court hearing, the lawyer must do everything in their power to minimise the risk and provide all relevant details to the court.

For further information contact Peter Ward on 03 9200 2533 or by email to assist you in these matters.