In criminal sentencing, mitigation factors can generally be argued and considered in offsetting enhancement factors and arguing for a lower sentence within a statutory range of punishment. Trial courts have discretion in considering what mitigating factors to apply, and may even consider factors not specifically listed by statute.
In the recent case of State v. Pantaleon, M2012-00575-CCA-R3-CD (Tenn.Criim.App. 4-25-2013), the Defendant at sentencing for convictions of rape of a child and aggravated sexual battery, asked the trial court to consider the statutory mitigation factor that the Defendant's conduct neither caused nor threatened serious bodily injury. The trial court declined to consider this factor in that case. The Tennessee Court of Criminal Appeals agreed with the trial court ruling.
In the Pantaleon case, the convicting evidence was the testimony of the victim who alleged multiple incidents of sex abuse by the Defendant, who had bee a relative and family friend. There was also evidence that the Defendant had admitted some of the abuse. The victim did testify that the abuse hurt, that she had since developed low self esteem, eating disorders, and the inability to trust, and that the Defendant had threatened she would not see her parents again if she reported the abuse. The Defendant argued at sentencing that there was no evidence the victim suffered serious bodily injury or was threatened with serious bodily injury.
The Court of Criminal Appeals noted precedent concluding that rape and sexual battery of a child is always physically and mentally injurious, and always involves the threat of serious bodily injury. They found in this case as well, mitigation for not causing or threatening injury is not merited.
For more information regarding the use of mitigation in criminal sentencing, contact Hindman & Associates.