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.
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…
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).