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CSPS Supervision 5 - The Philosophy and Theories of Punishment Easton and Piper - Determining 'just deserts'
A retributivist sentencing framework?
'The accepted account'
? Criminal Justice Act 1991 is viewed as the piece of legislation most infused with a just deserts approach. P70 o Von Hirsch: the Act provided norms 'aimed at helping to establish gradations of sentence for various crimes, based chiefly on offence-seriousness'. o Concept of bifurcated approach, whereby most offenders are sentenced on principles of just deserts and parsimony, while minority receive sentences for public protection longer than justified on retributivist principles, still underlines policy.
? Both CJA 1991 and CJA 2003 criticised for setting up unworkable hybrid sentencing frameworks.
? Characteristics of CJA 1991: o Presumptive rationale - just deserts - with a focus on a sentence proportionate to the seriousness of the offence in question. o Sentences to be treated as punishments which could be theorised in terms of deprivation of liberty. o Statutory hurdles for passing custodial and community sentences so that parsimony in sentencing could be encouraged.
? Introduction of statutory 'seriousness' thresholds as well as commensurability principle clearly flagged up principles of modern retributivism. The Criminal Justice Act 2003
? Halliday Report in 2001 heavily criticised 1991 framework: P72 o Sentencing framework has a 'narrow sense of purpose' and is 'less than complete guide to the selection of the most suitable sentence in an individual case'. o Framework has too much discretion which has led to inconsistency of sentencing. o Framework has a 'muddled approach to persistent offenders'.
? But the Report itself was criticised by Hudson (2001) and Barker and Clarkson (2002).
? Easton and Piper argue that, even after 2003, act is still basically retributivist.
? Calculation of seriousness and of a proportionate sentence still very important in current English sentencing law. o S.153(2) CJA 2003 states that not only should the sentence be proportionate to the level of seriousness, but it should also be 'for the shortest term' that is commensurate with seriousness. o Sentencers have a discretion to take account of mitigation or mental disorder and impose a non-custodial sentence even if the custody threshold is met. P73
But there are arguably now aspects of the sentencing framework which are not as strongly retributivist as those introduced by CJA
1991. A focus on custodial sentences
? The 'standard' custodial sentence is a determinate sentence - the judge specifies exactly how long it will be. P76 o Assuming guidance is followed, length subject only to the maximum sentence set in law for each offence and the maximum allowed in a magistrates' or youth court.
? A rejigged suspended custodial sentence introduced in CJA 2003 such that requirements can be placed on the offender, as in community sentences.
? One mandatory life sentence in English law, which is the sentence for an offender found guilty of murder. P77 Calculating seriousness The approach of the guidelines Format of Sentencing Council guidelines
? Approach of the offence0based guidelines since establishment of the Sentencing Council has been to outline a serious of 'steps' with a crucial first two steps. o Step 1 is to determine the offence category. o Step 2 is 'shaping the provisional sentence'.
? If the offence in question could receive a non-custodial or a custodial sentence, at step 2, some guidelines have drawn attention to the statutory thresholds.
? Steps 1 and 2 usually allow a provisional sentence to be determined and the steps from 3 onwards include reductions for assisting the authorities and/or for a guilty plea, compensation and ancillary orders, the totality principles and consideration of remand time.
? Other guidelines have additional or substituted steps because of specific factors relevant to the offence. Checklist 1) Is the offender mentally disordered? Consider provisions of Mental Health Act 1983 and any other relevant legislation. P79 2) Are any of the minimum sentences relevant? Is the sentence fixed by law (murder)? Are the sentences for public protection applicable?
3) Is the case to be dealt with in terms of proportionality/seriousness/just deserts? What statutory provisions are most relevant?
4) What is the statutory maximum penalty? If being dealt with in the magistrates' court, what is the maximum that can be imposed?
5) Is there an offence-based guideline for this offence issued by the Sentencing Guidelines Council? If not, is there an appellate guidelines judgement?
6) What guidance is given on assessing relative levels of culpability and harm in calculating seriousness? Are there relevant general guidelines? Which factors from case law or guidance on mitigation or aggravation are relevant? Which statutory factors must be taken into account to aggravate (or mitigate) severity?
7) Can you now decide what is the 'normal range' or 'starting point' for sentencing this offence or subcategory of the offence?
8) Is there any recent guidance which is pertinent to deciding whether the facts of the case fulfil the seriousness criteria for imposing
custodial or community penalties? Can you now fix a sentence before proceeding further?
9) For a community sentence: do ant facts of the case suggest particular requirements / penalties are appropriate?
a. For a custodial sentence: is the sentence length as short as is necessary for the penal purpose?
10) Are there any personal mitigating factors? Should they be taken into account?
11) Is there a sentence discount for a guilty plea? If so, how much?
12) What compensation order should be imposed? If not, why not? What victim's surcharge should be imposed? Is a confiscation order, or any other ancillary order, relevant 13) Given the answers from 9-12, what sentence should now be imposed?
14) Are there any other powers that should be exercised for the purpose of protection the public from harm from the offender?
Culpability and harm
? S.143(1) CJA 2003 have emphasised importance of focusing on the two elements comprising seriousness: culpability and harm. P80
? Involves the following questions: o What factors can legitimately make something more or less serious? Should previous offending be considered in this process?
o How do you decide what sentence is proportionate to any amount of seriousness? In particular, where should the anchoring point be and so where, for example, should the custody level be set?
? Two types of judgement in assessing seriousness: o Normative judgement about wrongfulness.
? Individuals have different ideas about what counts as most or least serious. Culpability
? Cross (1981) suggested that four factors affect how the courts calculate seriousness as well as the factor of harm done: wickedness, social disapproval, social danger and social alarm. P81 o The 'evilness of the perpetrator - In our modern society, there may be little consensus as to what actions are most blameworthy and its focus on the mental state of the offender raises difficult questions as to intention, provocation, malice and excuses. o Social disapproval - Strength of public denunciation of an offence is often strongly influenced by the age or sex of the victim. o Social danger or social alarm - Clearest example of this factor might now be terrorist-related offences.
? In providing early guidance on 'seriousness', the SGC approached issue of culpability by focusing on the 'amount' of intention and identifying four 'levels' for sentencing purposes (2004, pa.1.7). Harm
? Second element of gravity is the factual judgement on the amount of harm caused by the offending.
Although this may seem like an objective judgement, the value to the victim may be 'sentimental'.
? How do we reconcile different amounts of 'wrongfulness' and 'damage'?
o Although there is some consensus about the seriousness ranking of crimes, there appears to be less agreement about where the 'anchor' the penalty scale (Cavadino and Wiles 1994). Aggravation of seriousness
? In all the recent guidelines lists are given of factors which can aggravate or mitigate the seriousness of the offending in question, and applying those factors is crucial. P83 Aggravating factors in statute
? Ashworth (2010) questions whether all the aggravating factors allowed by legislation and guidance can be theorised in relation to culpability or harm and so fitted into proportionality theory because 'courts have often adopted the terminology of deterrence'.
? Statutory aggravations have become increasingly important in the past decade or so.
? S.143(2) CJA 2003 mandates aggravation for relevant previous convictions. P84 Offences committed on bail
? Amendments made by CJA 1993 increased seriousness if the offender had failed to respond to previous penalties and if the offence was committed while the offender was on bail.
? But CJA 2003 repealed this provision but re-enacted aggravation for offences on bail. Racially motivated offences
? In 1998 the Crime and Disorder Act added motivation by racial hostility as a new statutory aggravation. o S.29-32 mandated an increase in offence seriousness for specified offences by increasing the statutory maximum, as well as imposing a duty to increase seriousness in relation to any other offences in s.82. Religion, disability, sexual orientation and transgender identity
? Anti-Terrorism and Security Act 2001 amended the legislation to add 'religiously aggravated offences' into CJA 2003, s.145. P85
? S.146 added similar provisions to mandate an increase in sentences for aggravation related to disability or sexual orientation.
? Guidance in CJA 2003 about minimum terms to be served by those convicted or murder gives a starting point of 30 years for murders motivated by race, religion or sexual orientation (sch.21, pa.5(2) (g)). Guidance on aggravation
? In the guidelines on seriousness, there is a long list of a range of factors which can aggravate. Breach of trust
? CoA and now the guidelines have consistently condemned offending which involves a breach of trust, and research suggests that abuse of trust, together with premeditation, are the two factors most likely to tip the balance in favour of a custodial sentence (Flood-Page and Mackie 1998). P86
But Flood-Page and Mackie found that in the Crown Court over half of breach of trust theft cases did not result in a custodial sentence because of balancing mitigating factors.
? But breach of trust features in highest category of culpability in theft offence guidelines. The consequences to the victim
? Coroners and Justice Act 2009 has stated that in producing guidelines the Sentencing Council must have regard to several matters including 'the impact of sentencing decisions on victims of offences'.
? SGC guidelines on seriousness endorse old age or youth, disability, and the nature of a victim's job as potential forms of vulnerability. Other factors
? Other factors crop up in many guidelines e.g. premeditation, group operation and unnecessary violence. Causing death by dangerous driving
? Difficult offence to sentence because two ingredients of seriousness
- culpability and the harm done - may not point in the same direction.
? 'Unintended consequences' have downgraded the factor of harm done in relation to this offence and the calculation of seriousness is, rather, made in relation to the dangerousness of, and risk posed by, the offender's driving.
? Consultation guideline on 'Causing Death by Driving' listed 5 factors 'that may be regarded as determinants of offence seriouness'. Smuggling
? In Czyzewski, CoA listed several factors aggravating the offence. P88 Persistence as the problem
? Of the three possible responses - flat-rate sentencing, 'progressive loss of mitigation' and cumulative sentencing - only the first takes no notice of previous record, while the second and third responses do consider previous offending but conceptualise the importance differently.
? In utilitarian theory the focus on past offending would be relevant to the calculation of future risks, but in retributivism its role is different. Justifications
? Von Hirsch (1986) allows previous convictions as the only exception to the principle that offences of comparable seriousness should receive a punishment with the same degree of severity.
? If an offence is committed for the first time it might be successfully argued in mitigation that the action is out of character and so there is a penalty discount for first offenders but with each repeated offence this argument will be less plausible.
? Von Hirsch (1986) emphasises that there must not be a large differential between punishments for first offenders and recidivists. P89
? For von Hirsch (1986), there would be a limit on how far previous convictions would increase the severity of the sentence, and the upper limit would very likely be lower than permitted on utilitarian models. o
Other desert theorists e.g. Fletcher (1982) would see a focus on previous offending as incompatible with just deserts principles. o Argues that previous convictions do not affect desert for the current offence, and should not influence the sentence, as the offender has already been punished for past convictions.
? If offender persists, von Hirsch argues that his first offenders discount would be progressively lost. o But once discount is used up, he would receive the full amount of punishment but no more than this, otherwise relatively minor offences could incur harsh punishments.
? In cumulative sentencing the sentence increases on each subsequent conviction.
? Flat rate sentencing takes no account of previous convictions whatsoever. The legislation
? The progressive loss of mitigation approach was endorsed by CoA prior to 1991.
? But s.29 CJA 1991 stated that an offence was not to be regarded as more serious 'by reason of any previous convictions of the offenders'. P90
? But CJA 1993 repealed whole of s.29. o Amended s.29 states that 'in considering the seriousness of any offence, the court may take into account any previous convictions of the offender'. o Wasik and von Hirsch (1994) argued that this did not give the sentence 'unfettered discretion' in dealing with previous convictions.
? The CJA 2003 enhanced the role of past record. o In s.143(2), it is stated that each previous conviction must be treated as an aggravating factor. o Effect of s.143 depends on how courts exercise the discretion not to consider each previous conviction as an aggravating factor.
? Roberts and Pina-Sanchez (2014), in their analysis of data from the Crown Court Sentencing Survey, conclude that 'for offenders in the more serious criminal history categories, courts are moderating the increase in severity to ensure that previous convictions do no overwhelm the seriousness of the current offence'. P91
? On the face of statistics, there appears to be at least some cumulative sentencing in practice. Mitigation of seriousness
? Court must also consider mitigating factors relating to the offence when assessing seriousness, but has discretion to assign a weight to such factors and to balance them against the weight of aggravating factors. P92
? Ashworth (2005) points out that mitigating factors comprise a 'much more heterogeneous collection'.
? CoA cases and SGC guidelines lay down a wide range of mitigating factors relating to particular offences.
? There is little guidance on how to balance mitigating and aggravating factors and so it would be easy for disparity to occur.
Where the offence is very serious or where the courts wish to give a particular message, notably a deterrent one, mitigating factors relating to the offence or the offender may have little or no effect (Piper 2007). o Lord Woolf in Cooksley: 'it is important for the courts to drive home the message as to the dangers that can result from dangerous driving on the road ... drivers must know that ...
no matter what the mitigating circumstances, normally only a custodial sentence will be imposed. Establishing proportionality
? Lacey and Pickard (2015) have argued that in countries such as the UK and USA, the aspiration of many proponents of the retributive revival to place clear limits on punishment by ensuring proportionality has not been fulfilled. The seriousness thresholds
? CJA 2003 re-enacted the 'so serious that' and the 'serious enough' criteria for imposing custodial and community sentences and the SGC published guidance on seriousness in 2004. P93
? But how appellate courts construed key concepts in the CJA 1991 continues to have an influence on interpretation of the CJA 2003 and so the cases to be discussed are not simply of historical interest.
? In 1997 Ashworth and von Hirsch concluded that the purportedly 'common sense' test of the 'right thinking' person in Bradbourne (1985) was 'conceptually flawed and empirically unsupported'. o Lord Bingham CJ endorsed those criticisms in Howells and related appeals (1999).
? Mills (2002) discussed factors that should be considered when the offence is one that often receives a custodial sentence but the circumstances of the particular case reveal mitigating factors. o Stated that, as well as asking whether prison is necessary, 'the sentencing judge also had to take into account the reality of sentencing policy' and three factors: the inability of the prison service to achieve anything positive in the way of rehabilitation during a short sentence, the effect on children if a single mother is imprisoned, and, in relation to female prisoners, the fact that she might get allocated to a prison far from her home and children. P94
? Sentencing Guidelines issued after 2003 specifically notes that the clear intention of the threshold test is to reserve prison as a punishment for the most serious offences but that it would be impossible to determine definitively which features of a particular offence make it serious enough to merit a custodial sentence. Mitigation relating to the offender
? There is also mitigation relating to the circumstances and character of the offender rather than to the seriousness of the offending.
? S.166(1) CJA 2003 states that nothing in the sentencing sections prevents a court from mitigating an offender's sentence by taking into account any such matters as, in the opinion of the court, are relevant in the mitigation of sentence.
? S.166(2) states that the court is not prevented from imposing a community rather than custodial sentence in the light of mitigating circumstances and s.156(2) gives the court discretion to take into
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