By Emma Kearney, FLC Member and Accredited Specialist in Criminal Law in collaboration with Deputy Chief Magistrate Gett
Welcome back to Part Two of our series with Deputy Chief Magistrate Gett! In this article, His Honour shares some tips for new solicitors appearing in more substantive hearings like sentences and bail applications.
Undoubtedly, the most common fear for fresh practitioners representing a defendant at a sentence or bail application is the unknown questions or comments that will inevitably come from the bench. On this point, His Honour says that while preparation is key, you should be prepared to deviate from your plan.
Advocating on your client’s behalf isn’t a speech, it’s a presentation of arguments which can (and often does) trigger a conversation with the bench. Know the key points you want to make and don’t be afraid to double down on them if the Magistrate offers some push-back. See it as a challenge: if the Magistrate isn’t with you, so what can you say to change their mind?
“The more challenging part when you’re first starting, particularly on sentences or bail applications, is you get an immediate indication from the bench after you’ve barely said anything of what the Magistrate might be thinking. You shouldn’t take that as, Oh no, this is not going well, you should take it as an indication of what the bench is thinking, and it’s your job to try and persuade otherwise.”
His Honour also says it’s important not to panic if the Magistrate indicates they disagree with your submission.
“Let’s say you’re doing a plea, you come to the view that the appropriate sentence is a fine, or maybe a community-based order at worst, but the Magistrate immediately says, You’re going to have to persuade me why your client shouldn’t serve a term of imprisonment. Don’t panic. When you have a plan, you might say, There are three reasons why a fine or community-based order is appropriate, and they are: my client’s prejudicial upbringing, which I’ll come to in a moment; the circumstances of the offending, and while we accept the facts, these are the mitigating features; and also the rehabilitative steps he’s taken.”
“Don’t be put off by that, but be prepared to answer it in a logical format.”
When appearing at a sentence, His Honour says written outlines of submission can be very helpful, especially for more complicated matters, but it is important not to be repetitive in your submissions. “Good submissions are succinct and to the point,” he said.
His Honour also highlighted the necessity to suggest a structure for the sentence if your client is to be dealt with for multiple offences.
“You want to offer a structure, because the Magistrate is often struggling to work out, What am I ultimately doing with all these charges? You might make a global submission on penalty, like imposing a term of imprisonment with the defendant to be released forthwith, but what about all the other charges? Are there mandatory requirements? … Some matters are fine-only, some matters of imprisonment. So be prepared with those, and draw the Magistrate’s attention to them… Your Honour, while this may, on the facts, be the most serious offence, there is a matter that requires a graffiti removal order.”
For bail applications, there is important preparation to be done to ensure you are in a position to make the appropriate submissions on behalf of your client.
“The first thing I ask in a bail application is whether the defendant is in a ‘show cause’ position. You’ve got to know who is bearing the onus, what the correct test is, and whether you have to demonstrate a material change in circumstances because it is not the first bail application your client has made.”
His Honour also says your odds of being successful in an application for bail could be influenced by whether you provided the Court with a draft order.
“Have a draft order ready to go. It’s highly persuasive if the draft order’s there, even if the prosecution is saying they should be remanded in custody, at least the Magistrate can absorb and see what is your proffering potential.”
Things to Remember
His Honour expressed a great sense of fulfilment in seeing clerks and practitioners progress from their first, very nervy, appearances in Court, to making confident and persuasive submissions on behalf of their clients.
His Honour recognised the pressure upon law clerks and new practitioners, along with the high standards they often set for themselves. What’s unique about the profession is that everyone – Magistrates and Judges included – is still learning. The law is ever-changing, whether through legislation or case authorities, and sometimes it’s hard to keep up.
“The big thing is don’t be too hard on yourself, because everyone’s got to learn, and you’re learning. You’re learning every day, honestly, in this job. No matter what experience or what level you are, you’re always learning, so don’t beat yourself up.”
So there you have it, His Honour’s hottest tips on advocacy: always be observant, always be learning, always be prepared, always be efficient, always be courteous, and most importantly, always be kind to yourself.
Thanks, Your Honour!