Sentencing

• Factors used to set sentences:

  • Statutory Limits of the Offence Committed.
  • Sentencing Guidelines of the Offence Committed.
  • Aggravating and Mitigating Factors.
  • Additional Reports using Judge's Discretion.
• Statutory limits of the offence that has been committed:

  • The judge cannot exceed the maximum sentence set by the Act of Parliament for that offence.
  • e.g. The Maximum sentence for Theft is 7 years - in no circumstances can a judge exceed this.
  • Some offences also have minimum sentences that judges cannot go below.
  • e.g. Minimum 3 years for a third residential burglary.
• The judge must also refer to the Sentencing Guidelines for that offence:

  • The Sentencing Guidelines give guidance to judges on the range of the sentence in the circumstances.
  • Sentencing Council 2010 creates these guidelines for each offence, which judges are required to follow unless they have a good reason not to.
  • Under s.36 Sentencing Act 2020 judges must weight up the "offenders culpability" (blame) plus "any harm which the offence caused" or was intended to cause to the victims.
• Aggravating Factors:

  These make a crime more serious - so the sentence will be harsher, such as:

  • Previous convictions of offence committed whilst on bail.
  • Offender is operating as part of a gang.
  • Deliberately targeting a vulnerable victim or abusing position of trust.
  • Where crime was motivated by a hate crime (targeted because of one of the protected characteristics under the Equality Act 2010).
  • For theft - how much was stolen and if there was a position of trust.
• Mitigating factors:

  Make crime less serious - so sentence will be reduced:

  • Genuine remorse
  • Playing a minor part in a group activity
  • First time offence
  • Co-operation with the police
• Guilty Pleas:

  • Will reduce a sentence by one third if given at first opportunity (or 20% if the prosecution evidence is overwhelming).
  • There is then a sliding scale down to a reduction of one tenth if the plea is changed to guilty just before the trial, and 0 if changed just before the verdict.
• Offenders background:

  • includes previous convictions and their financial position.
  • As well as whether the Defendant has a mental disorder, development disorder (e.g. autism) or neurological impairment (e.g. dementia).
• Pre-sentencing reports:

  • These are done by the probation service.
  • More relevant when court is considering a community sentence as shows likelihood to respond to community based penalty.
• Medical reports:

  • Doctor prepares report is there are physical or psychological conditions.
  • May allow court special measures if offender has mental illness.
• Aims of Sentencing:

  Sentencing Act 2020 s.57(2) sets the aims of sentencing.

  Five official aims:

  1. Punishment of Offenders
  2. Reduction of Crime (through Deterrence)
  3. Reform and Rehabilitation of Offenders
  4. Protection of the Public
  5. Making of Reparation by Offenders to Persons Affected by their Offences.

  Unofficially, retribution (revenge) and denunciation (shaming) are also aims of sentencing.
• Punishment of Offenders:

  • Payback and 'just deserts' for having broken the law.
  • Should be proportionate to the crime but sometimes is increased is there is a public outrage at the case.
  • Based on the idea of "an eye for an eye".
• Reduction of Crime (through Deterrence):

  • Deterrence is aimed at reducing the crime rate through a fear of punishment.
  • Are two types - general and individual:

  1. General = Stop others offending by showing how severe the consequence might be in the hope that no one else commits the crime.
  2. Individual = Stopping defendant himself from committing any further future offences as they do not want further punishment.
• Reform and Rehabilitation of Offenders:

  • Aims to change the behavior of the individual so that they can be reintegrated back into society and will no longer commit crimes.
  • Usually involves drug/ alcohol rehabilitation as these are involved in 50% of crimes, but can also include anger management or speed awareness courses.
  • The idea is that treating the addiction removes the need to offend, so D will no longer commit further crimes.
  • The type and length of rehabilitation are set as appropriate in individual cases.
• Protection of the Public:

  • Sometimes called 'incapacitation', the idea here is that the offender is stopped from committing future offences, and this gives the public a level of protection against them.
  • Most commonly seen with those put in prison, where they are locked away from the rest of society so are no longer a danger to the public as a whole.
  • However other types of sentence can also protect the public - e.g. speeding fines can encourage drivers to slow down, making the roads safer. Also, community orders can include banning people from certain areas/ events, which can protect the public.
• Making of Reparation by Offenders to Persons Affected by their Offences:

  • Aimed at compensating the victim of the crime usually by ordering the offender to pay a sum of money or to make restitution i.e. By returning stolen property.
  • Courts are readily prepared to consider compensation in addition to any other penalty they think is appropriate, so much so that they have to give reasons if they don't award compensation.
• Making of Reparation by Offenders to Persons Affected by their Offences:

  • Can also include community orders which make the defendant carry out unpaid work repair the harm caused to the victim personally, or to society as a whole.
  • Restorative Justice is also a form of reparation - where the victim and defendant agree to meet to talk about what happened in an effort to move past the trauma of it.
• Types of Sentences:

  • Custodial (Prison)
  • Community Sentences
  • Fines
  • Discharge
• Custodial Sentences:

  • A custodial sentences is a prison sentence.
  • It is the most serious punishment that a court can impose because its affects the liberty of D and can heavily impact on their life.
  • s.230 Sentencing Act 2020 states: 'the court must not pass a custodial sentence unless the offence was so serious that neither a fine alone nor a community sentence can be justified'.
  • However there are different types of prison sentences which work in different ways.
• Types of Custodial Sentences:

  • Mandatory Life Sentence
  • Discretionary Life Sentence
  • Determinate/ Fixed Term Sentence
  • Extended Sentence
  • Minimum Sentence
  • Suspended Sentence
  • Home Detention Curfew
• Mandatory Life Sentences:

  • Is the only sentence that can be imposed for a charge of murder.
  • Is NOT life imprisonment - is Life on License.
  • The judge must state the minimum number of years (called the tariff) to be served in prison before being eligible for parole.
  • If prisoner is granted parole they are released on license.
  • Means there will be conditions of their freedom for the rest of their life, and if even a minor offence is committed hey will be immediately returned to prison.
• Discretionary Life Sentence:

  • Some offences carry a maximum sentence of life - but the judge has discretion whether they want to impose such a high sentence.
  • For example, with manslaughter, a judge may feel a shorter sentence is appropriate punishment - but they have the option to go up to life if they think they need to.
• Determinate or Fixed Term Sentence:

  • When the offender is given a set prison term, e.g. 12 months.
  • Offenders are usually released half way through this, on good behaviour (due to overcrowding).
• Extended Sentence:

  • The Sentencing Act 2020, s.255 gives the court the power to pass extended sentence for a sexual or violent offence.
  • The offender is given a fixed term custodial sentence plus a further period (the extension period) during which they are at liberty but on license.
• Minimum Sentence:

  • For some offences there will be a maximum time that judges must impose and cannot go below.
  • This includes dealing in Class A drugs or for a 3rd residential burglary.
• Suspended Sentence:

  • Is when the court sets a prison sentence, but the offender does not start serving the sentence.
  • Instead, the sentence in "suspended" pending good behaviour.
  • If offender does not reoffend, they will never start their sentence.
  • However, if they do on to reoffend they will immediately start serving the prison sentence (plus any punishment for the second offence).
• Home Detention Curfew:

  • The Criminal Justice Act 2003, s.246 allows early release from prison on the condition that a curfew is included and enforced by an electronic tag.
  • This is to encourage offenders to restructure their lives appropriately and to prevent re-offending.
  • It also deals with problems of overcrowding in prisons.
• Community Orders:

  • Under s.201 Sentencing Act 2020 an adult may be given a Community order. Maybe one or more of 14, example:

  1. An unpaid work requirement
  2. Curfew requirement
  3. Electronic monitoring requirement (ankle tag)
  4. exclusion requirement
  5. Drug rehabilitation requirement
  6. Alcohol treatment requirement
  7. Supervision requirement
  8. A residence requirement
• Banning Orders:

  • Includes driving bans or bans for specific events, or ban on travelling abroad.
• Fines:

  • Most common type of sentence handed out at Magistrate's Court.
  • Less serious offences so less serious sentence.
  • Maximum fine for Magistrate's Court is £500 (02 £20000 to business).
  • Courts will take account of the offenders financial situations when setting the level of fine.
  • Usually a % of their weekly earnings, instead of a set amount.
• Discharge:

  • Where the offender is found guilty but judge feels no sentence is necessary.
  • Usually minor, morally blameless offences - court process may be punishment enough.
  • Conditional Discharge:
  • Offender is discharged without punishment on the condition that no further offences are committed.
  • If offender re-offends, they can be sentenced for both offences.
  • Absolute Discharge:
  • No penalty at all.