Aggravating and Mitigating Factors in Sentencing

If you are convicted of a crime in New Jersey, you are sentenced in accordance with the penalties and consequences set forth in the criminal code.  While each crime is categorized by degree and has a range of proposed penalties, the sentencing Judge is required by law to consider more than just the charge and conviction.  The criminal code outlines factors in N.J.S.A. § 2C:44-1 a court must consider when determining the appropriate sentence for a person who has been convicted of a crime. These factors include aggravating factors, which may increase the penalties for a crime, and mitigating factors, which may lessen the penalties for a crime.  

Aggravating Factors 

Aggravating factors are circumstances surrounding a crime that may make it more appropriate for a judge to impose a harsher sentence on an individual. In other words, the presence of aggravating factors might make it more likely that the person would receive a sentence falling toward the higher end of the range of potential sentences for the crime set by law. The aggravating factors that a judge must consider during sentencing include: 

• The nature and circumstances of the offense 

• The role of the person in committing the offense  
• Whether the person committed the offense in a depraved, cruel, or heinous manner 
• The gravity and seriousness of the harm inflicted on the victim 
• Whether the person knew or reasonably should have known that the victim was particularly vulnerable or incapable of resistance 
• The risk that the person will commit another crime in the future 

• The offense involved a breach of public trust or taking advantage of a position of trust or confidence 
• The substantial likelihood that the person is involved in organized criminal activity 
• The extent of the person’s prior criminal record and the severity of any convictions 
• The person committed the crime to be paid 
• The crime involved a police officer, firefighter, correctional employee, public servant, sports coach, athletic coach, or manager 

• The need to deter others from violating the law 
• The involvement of fraudulent or deceptive practices committed against a state government entity 
• Monetary penalties would be insufficient to truly punish the person 
• The person knew or should have known that the subject of the offense was over the age of 60 or disabled 
• Use of a stolen motor vehicle in the commission of the crime 

• Involvement of domestic violence in the presence of a minor under the age of 16 
• Involvement of more than one incident of domestic violence on more than one occasion 

Mitigating Factors 

Unlike aggravating factors, mitigating factors are circumstances that may cause a judge to choose a sentence for a person that falls within the lower part of the range of potential sentences. As a result, a person could receive lesser penalties than another person convicted of the same crime due to mitigating factors. Mitigating factors that a court must consider include: 

• The offense neither caused nor threatened serious harm, nor did the person contemplate that the offense would do so 

• The person committed the crime due to strong provocation 
• Substantial grounds may have justified or excused the person committing the crime 
• The victim of the offense induced or facilitated its commission 
• The person has compensated or will compensate the victim for damages or injuries or will participate in a community service program 
• The person has no prior criminal history or a lengthy period of law-abiding conduct 

• The circumstances that led to the crime are unlikely to reoccur 
• The person’s attitude and character make them unlikely to commit another offense 
• The person is likely to respond affirmatively to probationary treatment 
• Imprisonment would create a hardship for the person or their dependents 
• The willingness of the defendant to cooperate with law enforcement 

• The person was young and substantially influenced by a more mature person 
• The person was under the age of 26 at the time of the offense 

Weighing of Aggravating and Mitigating Factors at Sentencing 

New Jersey law requires sentencing judges to specifically consider all relevant aggravating and mitigating factors to the extent that they are present when sentencing a person in a criminal case. In some cases, the aggravating factors may outweigh the mitigating factors, resulting in a sentence closer to the maximum sentence that a person can receive for a criminal conviction. In other cases, the mitigating factors may outweigh the aggravating factors, resulting in a sentence that is closer to the minimum sentence that a person can receive.  When the mitigating factors “substantially outweigh” the aggravating factors, the sentencing judge may impose a sentence one degree lower.  For instance, if a defendant is found guilty of a second-degree crime, but the sentencing judge finds the mitigating factors substantially outweigh the aggravating factors, the court may impose a sentence one degree lower in the third-degree range.   

Another possibility is that the aggravating and mitigating factors may be similar, which could essentially cancel one another out. That situation could result in the judge choosing a sentence in the middle of the range of the potential sentences for a crime.   

The weighing of the aggravating and mitigating factors is critical when a court determines the appropriate penalty.  At times, this can mean the difference between being incarcerated or being sentenced to a non-custodial sentence.   

Sentencing Memorandum 

Prior to being sentenced, the court’s staff will conduct a pre-sentence investigation and prepare a pre-sentence report. That report is provided to the sentencing judge for review and consideration prior to sentencing.  Defendants have the ability to submit a Sentencing Memorandum to the Court. This is a detailed memorandum outlining all of the positive characteristics and circumstances of the defendant’s case and applying them to the statutory aggravating and mitigating factors.  The sentencing memorandum also includes character letters and other documents that support a more favorable sentence.  Sentencing Memorandum are not required to be submitted to the Court and, in state court, are rare.  At Rosenberg Perry & Associates, we prepare sentencing memorandum for all of our criminal defendant clients.  Having an experienced criminal defense attorney on your side to present mitigating factors at sentencing could result in a more lenient sentence in your case.  

Contact Rosenberg, Perry & Associates, LLC for Legal Advice 

We are here to represent your interests when you are facing accusations of having committed a crime. The consequences of a criminal conviction can be severe, so protecting your rights throughout your criminal case can be crucial. Call us today at (609) 216-7400 or contact us online today and see how we can help.