Criminal Process: General principles of sentencing

Sentencing

• Once an accused is convicted of an offence, it is the Court's job to decide what sentence will be given
• A Magistrate or a Judge decide on the sentence depending on what Court the case is heard in
• There are a number of restrictions and factors that will be taken into account when deciding the appropriate sentence
• A sentencing tariff is a guideline for what the sentence should be

Restrictions on Sentencing

• Magistrates:
• A maximum of six months imprisonment for a single offence
• Unlimited fine for serious offences
• Crown Court Judges
• Max life sentences
• Unlimited fines

Maximum Sentences

• Magistrates and Judges are restricted by maximum sentences that are laid down by Parliament in the statute covering each offence
• e.g the maximum sentence for theft is 7 years, the maximum sentence for rape is a discretionary life sentence
• Murder is quite unique as it has a mandatory life sentence

Minimum Sentences

• The Crime (Sentences) Act 1997 introduced minimum sentences for persistent offenders, drug dealers and burglars
• The Act also introduced an automatic life sentence for offenders convicted of a second serious or violent offence

Sentencing

• Sentencing is not an easy or simple process
• Before sentencing those who have been convicted of a criminal offence, the Magistrates or the Judge have to consider a range of different factors regarding the offence and the offender
• Often a pre-sentence report will be prepared by the Probation Service that will help with the decision to impose the most appropriate sentence for this particular offender

Factors surrounding the offence

• The main issue that will be considered here is how serious the offence is for the type of offence it is
• s143(1) Criminal Justice Act 2003
• "In considering the seriousness of the offence, the court must consider the offender's culpability in committing the offence and any harm which the offence caused, or was intended to cause or might reasonably forseeably have caused"
• The Criminal Justice Act 2003 states that other factors that should be considered are:
• Previous convictions for other similar offences or ones which are relevant to the current offence
• Whether the defendant was on bail when the offence was committed
• Whether there was any religious or racial element to the offence
• Whether there was any hostility towards disability or sexual orientation involved in the offence
• "Other points the courts will want to know may include...In a case of theft, how much was stolen, and was the defendant in a position of trust? In a case of assault...what injuries were inflicted and whether the assault was premeditated; was the victim particularly vulnerable... Where several defendants are convicted of committing a crime jointly, the court will want to know if any of them played a greater part than others, and who was involved in planning it" - (The English Legal System, Jacqueline Martin)

The Effect of a Guilty Plea

• If a defendant pleads guilty, the sentence is likely to be reduced
• The general rule is that the earlier the guilty plea is entered, the more time will be deducted from the sentence
• If a defendant pleads guilty at their first opportunity to do so, up to one third will be deducted from their sentence
• If a defendant pleads guilty once the trial has started, up to one tenth will be deducted
• Discounts are calculated on a sliding scale
• The sliding scale is in place because of:
• Costs - pleading not guilty costs the courts more money
• Time - a person pleading guilty results in a shorter trial, thus saving time
• It encourages rehabilitation and accountability
• Problems with this system:
• It's prone to cynical manipulation by the guilty
• Justice for victims
• The Sentencing Council justifies the discount system as follows:
• "A reduction in sentence is appropriate because a guilty plea avoids the need for a trial, shortens the gap between charge and sentence, saves considerable cost, and, in the case of an early plea, saves victims and witnesses from the concern about having to give evidence"

The Offender's Background

• Factors the Court will consider here include:
• Any previous convictions, including reaction to previous sentences, whether or not they were on bail
• Where there is the possibility of community sentences a pre-sentence report will be prepared by the Probation Service with details of the offender's background and suitability for this type of sentence
• If there are any medical or psychiatric issues involved in the offence the Court will ask for a medical report before making their decision
• If imposing a fine, the financial situation of the offender will need to be fully disclosed

Sentencing Guidelines

• Used to be set by the Court of Appeal but they had to wait for a suitable case to come to court
• Sentencing Advisory Panel was set up in 1998 to advise the Court of Appeal on guidelines
• Sentencing Guidelines Council was set up following the Criminal Justice Act 2003
• Now all are combined in the Sentencing Council
• Sentences are fixed by tariff. These are set by the Sentencing Council and by sentences imposed in similar cases

Sentencing Council

• What does it do? "The Sentencing Council is an independent body that has been created to ensure transparency and consistency in sentencing whilst maintaining and promoting the independence of the judiciary"

Types of Sentence

• A sentence is the punishment given to defendants when they are convicted, and the type of sentence can vary depending on whether the defendant is an adult or a youth offender. The sentence that can be given to an offender depends on the Government of the time and their priorities which are often affected by current events and media pressure
• Both adult and youth offenders can receive the same type of sentence, but they vary in terms of their requirements and their length
• The judge is responsible for sentencing in the Crown Court and the magistrates are responsible in the Magistrates' Court. The range of sentences available to each court does vary

Sentencing factors - government/politics, precedent, media pressure, public opinion, Sentencing Council recommendations

Sentencing

• The tariff, or length of the sentence will be determined by the court following guidelines issued by the Sentencing Council. The court will look at the following factors:
• The age of the offender
• The seriousness of the offence
• The likelihood of further offences being committed
• The extent of harm likely to result from further offences
• There are four main categories of sentence:
• Custodial sentences
• Community sentences
• Fines
• Discharges
• The courts also have the power to make additional orders such as compensation orders and powers such as driving bans

Types of Sentence

Absolute Discharge:

• This is where the court feels that the offender has received enough punishment by going through court and so discharges the offender with no further action needed

Conditional Discharge:

• This is where the offender will receive no punishment on the condition that they do not reoffend for a specified period for up to three years. It is intended to be used where it is thought that punishment is not necessary. If the offender re-offends within the time limit, the court can then impose another sentence in place of the conditional discharge, as well as imposing a penalty for the new offence. They are used widely by Magistrates' Courts for first time minor offences

Fine:

• These are the most common sentences given to adults. These are mostly administered for minor offences. Magistrates can give a maximum fine of £5000 (or up to £20,000 on businesses who have committed offences under certain regulations such as health and safety), and the Crown Court has no limit on the fine which it can impose

Suspended Sentence Order:

• This is where the offender does not go to prison, but has to comply with conditions set out by the court. The suspended period can be up to two years (or six months in the Magistrates' Court). Breach of the conditions can result in the offender being sent to prison for the remainder of their sentence. If, during this time, the defendant does not commit another offence, the prison sentence will not be served. If they do commit another offence, the prison sentence is 'activated' and the offender will serve that sentence together with any sentence for the new offence
• A suspended sentence should only be given where the offence is so serious that an immediate custodial sentence would have been appropriate but there are exceptional circumstances in the case that justify suspending the sentence
• The court can attach any of the 12 requirements used in community orders to the sentence and a failure to meet a requirement can also mean the sentence is 'activated'

Community Order:

• Under the Criminal Justice Act 2003, there is now one Community Order to which the court can attach any combination of requirements that they think are necessary. Section 177 Criminal Justice Act provides a full list of the requirements that can be attached.
• s.177(1) - Where a person aged 16 or over is convicted of an offence, the court by or before which he/she is convicted may make an order (in this Part referred to as a "community order") imposing on him any one or more of the following requirements:
• (a) an unpaid work requirement
• (b) an activity requirement
• (c) a programme requirement
• (d) a prohibited activity requirement
• (e) a curfew requirement
• (f) an exclusion requirement
• (g) a residence requirement
• (h) a mental health treatment requirement
• (i) a drug rehabilitation requirement
• (j) an alcohol treatment requirement
• (k) a supervision requirement, and
• (l) in a case where the offender is aged under 25, an attendance centre requirement

Custodial Sentences

• This is the most severe sentence available and is for the most serious of offences. S152 Criminal Justice Act 2003 stipulates that custodial sentences are only available for those offences "so serious that neither a fine alone nor a community sentence can be justified for the offence".
• They can range from a few weeks to life imprisonment and can include:
• mandatory and discretionary life sentences
• fixed-term sentences
• suspended sentences