Sentencing Overview

Sentencing Structure for problem questions

New structure is laid out in all of the guidelines issued by Sentencing Council (CJA 2009)

1. Determine the offence category according to Sentencing Guidelines

2. Identify starting point and reach a sentence within the category range

   1. Then adjust for aggravating or mitigating factors (which could include past convictions or other relevant factors)

3. Consider any other factors which indicate a reduction, such as assistance to the prosecution

   1. Court usually informed of this assistance by investigators: opaque process

4. Discount for guilty pleas

   1. As required by CJA 2003 s144, according to sliding scale in sentencing guidelines

      1. Makes administrative sense since hearing is shortened

      2. Might also avoid an unnecessary acquittal just because jury is unsure if the facts fulfil the requirements stated by judge

   2. Chaytors [2012] EWCA Crim 1810

      1. Plea and Case Management Hearing (PCMH) might not be the “first reasonable opportunity” warranting 1/3 discount as per guideline

      2. But if judge accepts that it is at the “first reasonable opportunity” there should be the “conventional one-third discount”

5. Assess offender’s dangerousness

6. Apply totality principle

7. Compensation and ancillary orders

   1. Court must give reasons for not making compensation orders if there has been personal injury, loss or damage resulting from the offence

8. Court has duty to give reasons

   1. ISSUE: can apply any of the sentencing principles to suit the case

9. Consideration for remand time

   1. LASPOA 2012: removed judicial discretion in CJA 2003 regarding whether or not remand time should count towards sentence

      1. Prisons can administratively calculate time in remand

      2. S240A: time spent on electronic tag can be taken into account at 50% rate if mentioned by the judge

Purposes of Sentencing

Criminal Justice Act 2003, s142

• Punishment of offenders

• Reduction of crime (including deterrence)

• Reform and rehabilitation of offenders

• Protection of the public

• Making of reparation to persons affected by their offences

• ISSUE: this merely provides a list without prioritising the different purposes

  • Purposes like reform and rehabilitation might be at odds with deterrence

  • Judges can therefore, in practice, choose whichever purpose suits their sentencing style. Does not result in consistency

Aggravation and Mitigation

Relationship with proportionality

• Need not be at odds with the primary rationale of sentencing being proportionate to offence

• Sentencing is “closely entwined with social policy” and “politically sensitive”, so additional factors should be recognised (and justified) in sentencing

• Use of aggravating and mitigating factors in English law might be “purely adventitious”

  • No distinction between robbery and armed robbery, rather weapons are an aggravating factor

  • Causing death by driving has several “determinants of seriousness” which are effectively aggravating factors”

Aggravating and mitigating factors

• May be, but are not necessarily, opposites of each other

• The opposite of a mitigating factor may be neutral rather than aggravating

• E.g. pleading guilty is a mitigating factor (allows for discount) but pleading not guilty is not an aggravating factor

Totality Principle

Although individual sentences for the offences might be proportionate, the total sentence cannot be allowed to be excessive when taken as a whole

• CJA 2003, s166(3): courts can mitigate sentence “by applying any rule of law as to the totality of sentences”

SGC Guideline: TICs and Totality

• 2 main elements of totality

  • “all courts, when sentencing for more than a single offence, should pass a total sentence which reflects all the offending behaviour before it and is just and proportionate. This is so whether the sentences are structured as concurrent or consecutive. Therefore, concurrent sentences will ordinarily be longer than a single sentence for a single offence”

  • “It is necessary to address the offending behaviour, together with the factors personal to the offender as a whole” instead of just adding up sentences

• Consecutive sentences shouldn’t usually be imposed for offences arising from the same facts/incidents, only where concurrent sentences would be insufficient

• Indeterminate sentences shouldn’t run consecutively

  • If a determinate sentence is imposed consecutively to the indeterminate sentence, it starts when the minimum term of the indeterminate sentence expires

• If total sentence is excessive, courts can proportionately reduce the individual sentences so as to achieve overall proportionality

ISSUE (Padfield): does this grant offenders a “discount for bulk offending?”

• Although this might better support the proportionality principle than cumulative sentencing, it could also result in under-sentencing of offenders with many offences on the indictment

• Grant [2008] EWCA Crim 2244

  • D convicted of supplying drugs to boyfriend in prison

  • CA (Wilkie J): although the sentences were rightly imposed based on the offences, they should have been made to run concurrently in order to fulfil the totality principle so as not to be “manifestly excessive” in the circumstances

Aggravating Factors

Statutory aggravating factors (as in the Criminal Justice Act 2003)

• Court is required to treat these as aggravating factors

S143(3): Offence committed on bail

• ISSUE (Ashworth): this doesn’t increase the harm of the offence nor culpability

  • Might be due to offender’s breach of trust, but the serving of a sentence for offence on bail is to be consecutive to original offence sentence and would therefore be longer anyway?

  • No clear proof that this actually helps deterrence

S145(2): Racial or Religious aggravation

• General aggravating factor; must be stated in open court that it was so aggravated

• Definition: Crime and Disorder Act 1998, 28

  • Conduct that is “racially motivated”

• CDA 1998 also created racially aggravated offences of wounding and assault, criminal damage, public order offences and harassment

  • ...

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