The principles of sentencing
In many cases, there will be adjournment prior
to the passing of sentence. The most common reason for such an
adjournment is where the court requires a pre-sentence report before
passing sentence. In the magistrates’ court, adjournments after
conviction must not exceed four weeks where the offender is granted
bail or three weeks if he is remanded in custody. The Crown Court
normally adopts the same periods.
Purposes of sentencing
The Criminal Justice Act 2003, s 142(1) sets
out the objectives of sentencing, to which the courts are required
to have regard when dealing with offenders. Those objectives are:
- Punishment of offenders;
- Reduction of crime (including reduction
by deterrence);
- Reform and rehabilitation of offenders;
- Protection of the public;
- Making of reparation by offenders to
persons affected by their offenders.
The sentencing process
The sentencing process requires consideration
of both aggravating and mitigating factors. It involves a two-stage
process:
- What sentence does the seriousness of the
offence itself merit?
- Can that sentence be reduced in light of
mitigation relating to the offender?
The concept of seriousness
Seriousness is an important concept and is
significant because it:
- Determines which of the sentencing
thresholds has been crossed;
- Indicates whether a custodial,
community or other
sentence is the most appropriate; and
- Is the key factor in deciding the length
of a custodial sentence, the onerousness of requirements to be
incorporated in a community sentence and the amount of any fine
imposed.
General factors affecting seriousness
‘Culpability’ is the initial factor in
determining the seriousness of an offence. SGC Guidance on
Seriousness identifies four levels of culpability:
- Intention to cause harm: highest
culpability when an offence is planned; the worse the harm
intended, the greater the seriousness.
- Recklessness as to whether harm is
caused: appreciates some harm would be caused but proceeds,
giving no thought to consequences even though extent of risk
would be obvious to most people.
- Knowledge of specific risks entailed by
actions but does not intend to cause the harm that results.
- Negligence.
A number of general factors which are relevant
to assessing the seriousness of an offence are:
- Offence committed whilst on bail for
other offences;
- Failure to respond to previous sentences;
- Offence was racially or religiously
aggravated;
- Planning of an offence;
- Previous conviction(s), particularly
where a pattern of repeat offending is disclosed;
- ‘Professional’ offending;
- Offenders operating in groups or gangs;
- High level of profit from the offence;
- An attempt to conceal or dispose of
evidence;
- Offence committed whilst on license;
- Deliberate targeting of vulnerable
victims;
- Use of a weapon to frighten or injure
victims;
- Abuse of power;
- Abuse of a position of trust;
- Multiple victims;
- Additional degradation of the victim.
The list of factors identified by the SGC as
indicating significantly lower culpability is somewhat shorter:
- A greater degree of provocation than
normally expected;
- Mental illness or disability;
- Youth or age, where it affects the
responsibility of the individual defendant;
- The fact that the offender played only a
minor role in the offence.
Credit for guilty plea
Pleading guilty is, in itself, good
mitigation. The sentence should have regard to the fact that the
offender pleaded guilty and should take into account:
- The stage of the proceedings at which the
offender indicated an intention to plead guilty; and
- The circumstances in which that
indication was given.
Discount for pleading guilty should be based
on a sliding scale, so that the offender gets more credit for
pleading guilty at the earliest opportunity. Under the sliding
scale, the offender receives:
- The [normal] maximum of one third where
the guilty plea was entered at the first reasonable opportunity;
- A maximum of one quarter where a trial
date has been set;
- A maximum of one tenth for a guilty plea
entered at the ‘door of the court’ or after the trial has begun.
The SGC guidance sets out the recommended
approach to giving the offender credit for pleading guilty by
setting out four steps:
- The court decides the sentence for the
offence(s), taking into account any offences to be taken into
consideration (TICs);
- The court selects the amount of the
reduction by reference to the sliding scale;
- The court applies that reduction to the
sentence initially decided on;
- When pronouncing sentence, the court
should usually state what sentence would have been imposed if
there had been no reduction as a result of guilty plea.
Effect of previous convictions
The Criminal Justice Act 2003, s. 143(2)
provides that:
- …the court must treat each previous
conviction as an aggravating factor if (in the case of that
conviction) the court considers that it can reasonably be so
treated having regard, in particular to...
The nature of the offence to which the
conviction relates and its relevance to the current offence; and
The time that has elapsed since the
conviction.
In other words, an offence is to be regarded
as more serious if committed by someone with relevant previous
convictions (relevance depending on how old the previous convictions
are and how similar in type they are to the present offence).
