1A.2.2 Sentencing

Question 1

Aims of sentencing

Answer 1

• Punishment of offenders
• Reduction of crime (including its reduction by deterrence)
• Reform and rehabilitation of offenders
• Protection of the public
• Offenders making reparations to their victims

Question 2

Which act sets out the purposes of sentencing?

Answer 2

Sentencing Act 2020

Question 3

Retributive justice

Answer 3

Where a punishment is imposed because the offender has broken the law. It requires the punishment to be proportionate and meted out at the same level as the crime

Question 4

Give an example of a quote used for retributive justice

Answer 4

The bible quote ‘an eye for an eye’ is used to justify the use of the death penalty for the offence of murder.

Question 5

What are the sentencing guidelines?

Answer 5

Guidelines published by the Sentencing Council, which include a starting point and a range for the sentence. They also set out factors that make an offence more serious or less serious.

Question 6

Advantage and disadvantage of the sentencing guidelines

Answer 6

This system upholds the aim of punishing offenders and leads to consistency in sentencing.

However, it can be difficult for courts to impose sentencing aimed at reforming offenders, and the guidelines leave very little discretion in sentencing with the judges.

Question 7

Deterrence

Answer 7

Deterrence involves giving a punishment aimed at putting off the defendant from reoffending because of fear of punishment or preventing other potential offenders from committing similar crimes.

Question 8

Two types of deterrence

Answer 8

• Individual deterrence aims to ensure that the offender does not reoffend, through fear of future punishment.
• General deterrence aims at preventing other potential offenders from committing crimes.

Both are aimed at reducing future levels of crime.

Question 9

Individual deterrence

Answer 9

Individual deterrence is aimed at stopping offender from reoffending through the fear of future punishment.

Penalties that can be imposed include:
- A prison sentence
- A suspended sentence.
- A heavy fine.

Question 10

Figures showing the use of imprisonment is not effective.

Answer 10

Over 70% of young offenders (who are given a custodial sentence), and 55% of adults will reoffend.

Question 11

General deterrence

Answer 11

General deterrence is aimed at preventing any potential offenders from committing crimes.

Courts occasionally resort to making an example of offenders in order to warn potential offenders of the punishments they face.

Question 12

Example of general deterrence

Answer 12

Following the 2011 London Riots (2011), many offenders were given tougher sentences for minor offences such as theft. This sent a clear message to others that those who commit offences during a riot will be given more severe sentences.

Question 13

Issue with the principle of general deterrence

Answer 13

The principle of general deterrence clashes with the principle of retributive justice.
With retribution, offenders should be punished according to the severity of the crime. However, general deterrence involves a court giving a tougher than usual punishment.

Question 14

Reform and Rehabilitation

Answer 14

The main point of this aim is to reduce crime is to reform the offender and rehabilitate them back into society. It is a forward-looking aim: to alter the offender’s behaviour so that they don’t reoffend.

• Judges or magistrates will be given information about the D’s background, and – if relevant – they will consider school reports, job prospects or medial issues.
• Community orders, especially drug testing and treatment orders and drug abstention orders, aim to rehabilitate drug abusers.

Question 15

Protection of the public

Answer 15

Custodial sentences are the main way of protecting the public. If the offender presents a significant risk to members of society, they must be sent to prison where they cannot commit further crimes.

LASPO introduced a new mandatory life sentence for offenders convicted of a second very serious sexual/violent crime. They will be removed from circulation to protect society.

Those who commit murder or other serious crimes are given life sentences. When they are considered no longer to be a danger to the public, the parole board might consider releasing them on licence.

Question 16

Examples of community orders which can be used to protect the public

Answer 16

• A curfew removes the offender from a certain area or place at certain times of the day, making those places safe for the public.
• Wearing an electronic tag allows the probation service and the police to monitor an offender’s location and compliance with their curfew order.
• Community Orders offer treatment and education to offenders who are dependent on drugs and alcohol.
• The public are protected when people convicted of driving offences are taken off the road – either in prison or banned.

Question 17

Making reparations to the victim

Answer 17

Making reparations to the victim
This is aimed at compensating the victim of the crime, usually by ordering to pay a sum of money to the victim or to make reparation, for example, by returning stolen property to its rightful owner.

Question 18

Restorative justice

Answer 18

Offenders and victims are brought together so that the offenders may see the effect of their crimes and make direct reparations, perhaps by doing decorating or gardening at the victim’s home.

The offender might also make reparation to society by doing unpaid work on a community project, supervised by the probation service.

Question 19

Denunciation

Answer 19

Denunciation is the process of expressing society’s disapproval of an offender’s behaviour.

A sentence should indicate to all that society condemns certain types of behaviour.

It shows people that justice is being done and it reinforces the moral boundaries of acceptable conduct and can mould society’s views on the criminality of particular action.

Question 20

Example of denunciation

Answer 20

For example, drink driving is viewed as unacceptable by the majority of people because it puts other people’s lives at risk.

Question 21

Main factors in sentencing

Answer 21

• Pre-sentence reports
• Medical reports
• Sentencing guidelines
• Reduction in sentence for a guilty plea
• The offender’s background

Question 22

Pre-sentence reports

Answer 22

These are prepared by the probation service for consideration by the court before sentencing. This report might not be relevant for very serious offences but is important when the court is considering a community sentence.

The report will give information about the offender’s background and suitability for a community-based sentence. It might show why the offender committed the crime and indicate the likely response to a community-based penalty.

Question 23

Medical reports

Answer 23

Where the offender has medial or psychiatric problems, the court will usually ask for a report to be prepared by a doctor. Medical conditions may be important factors in deciding the appropriate way of dealing with the offender; the courts have special powers where the offender is suffering from mental illness.

Question 24

Aggravating factors

Answer 24

An aggravating factor is a factor that allows the court to give a stricter sentence than usually given.

Question 25

Give examples of aggravating factors

Answer 25

• Previous convictions for offences of a similar nature or relevant to the present offence.
• If the offender was on bail when the offence was committed
• Any racial or religious hostility in the offence
• Any hostility to disability or sexual orientation being involved in the offence
• If the offender pleaded not guilty

Question 26

Give examples of mitigating factors

Answer 26

• No previous convictions
• Showing genuine remorse
• Taking a minor part in the offence
• Mental illness or disability
• Pleading guilty

Question 27

Reduction in sentence for a guilty plea

Answer 27

A guilty plea at the first reasonable opportunity should reduce the sentence by up to one-third, but where the prosecution case is overwhelming, only 20%. A plea of guilty after the trial has started would only be given a 10% reduction.

Question 28

Reason why there is a reduction in sentence for a guilty plea

Answer 28

According to the Sentencing Council:

• “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.”

Question 29

Information about the offender’s background

Answer 29

1) Previous convictions: these are treated as an aggravating factor, and so include:

2) If there are no previous convictions and the offence was not committed while on bail, this will be treated as a mitigating factor.

3) The financial situation of the offender, where the judge or magistrate consider that a fine is a suitable penalty.

A defendant who has no previous convictions is usually treated more leniently.

Question 30

Report by probation service

Answer 30

The probation service will prepare a report for the court. This consists of information about the offender’s background and a medical report (if the offender is ill).

These reports will be considered with all other factors in deciding what sentence to impose on the defendant.

Question 31

Main types of sentences that can be imposed on adult offenders

Answer 31

• Custodial
• Community
• Fines
• Discharges

Question 32

Custodial sentences

Answer 32

A custodial sentence is the most serious punishment that a court can impose. Custodial sentences for adults range from a sort period in custody to life imprisonment.

Question 33

What are the different custodial setences?

Answer 33

• Mandatory life sentences
• Discretionary life sentences
• Fixed-term sentences
• Suspended sentences

Question 34

When should custodial sentences be used?

Answer 34

Only for the most serious offences - s152 CJA 2003

Question 35

Mandatory life sentences

Answer 35

The only sentence a judge can impose for a murder conviction is a life sentence.

However, after imposing the mandatory life sentence, the judge must set the minimum number of years’ imprisonment that the offender must serve before being eligible for release on licence. This could be a minimum of 12 years to a maximum whole life order.

Question 36

Whole life order

Answer 36

This is imposed for an offence of murder where the sentencing judge decides that the offender is so dangerous, they should never be released from prison.

There are approximately 75 prisoners currently service whole life sentences in England and Wales, which include some of Britain’s most notorious criminals.

Question 37

Discretionary life sentences

Answer 37

For the first commission of a serious offence, such as manslaughter and rape, the maximum sentence set by statute is life imprisonment, but the judge does not have to impose this. The judge has discretion in sentencing and can choose to give any sentence less than the maximum.

Question 38

Fixed term sentences

Answer 38

For less serious crimes, the maximum length of the sentence will be set by statute – for a fixed term. For example, the maximum sentence for theft, imposed by the Theft Act 1968 is 7 years.

Question 39

Do prisoners serve the whole of the sentence passed by the court?

Answer 39

No:

• Anyone sent to prison is released on licence after they have served half of the sentence.
• For terrorism offences, offenders are released on licence after serving two-thirds of the sentence.

Release on licence has to be approved by the Parole Board and may be subject to conditions such as residence and the need to regularly report to the police station or probation service.

Question 40

Suspended prison sentences

Answer 40

A suspended sentence of imprisonment is one where the offender will only serve the custodial period if there is a breach of one of the term of the suspension, there is a breach of one of the terms of the suspension.

• The prison sentence can be between 14 days and 2 years.
• The period of suspension can be between 6 months and 2 years.

The idea is that the threat of prison during this period of suspension will deter the offender from committing further offences. If the offender complies with the requirements of the suspended sentence, they will not serve the term of imprisonment, but the sentence will be ‘activated’ if they do not comply.

Question 41

When should a suspended sentence be given?

Answer 41

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.

Question 42

Fine

Answer 42

A fine is the most common sentence imposed in the Magistrates’ Court – about 70% of offenders are fined – whereas very few offenders review a fine in the Crown Court.

When deciding the amount of a fine, the courts must take into account the income and assets of the offender.

Question 43

Types of discharge

Answer 43

• Conditional discharge
• Absolute discharge

Question 44

Conditional discharge

Answer 44

The court discharges an offender on the condition that they commit no further offence during a set period of up to three years. If an offender reoffends within the time limit, the court can impose another sentence in place of the conditional discharge as well as imposing a penalty for the new offence. Conditional discharged are widely used by Magistrates’ Courts for first-time minor offences.

Question 45

Absolute discharge

Answer 45

Where effectively no penalty is imposed. This sentence is only given where an offender is technically guilty but morally blameless.

Question 46

Release on licence

Answer 46

When sentencing an offender, the judge will impose a minimum term of imprisonment that has to be served – this is called the ‘tariff’ period. At the end of this time, the Parole Board will decide whether the offender is fit for release back into the community.

They will take into account:
- Whether the offender admits the crime
- Whether they are considered to still be a danger
- Their behaviour during the tariff period

If the offender is considered fit for release, this will be subject to conditions such as where they will live, what job they can take and who they can associate with.

For offenders sentenced to a whole life term, these licence conditions will remain for the rest of their life. If the offender breaches any of the terms of the licence, they can be brought back to prison to serve a further term of imprisonment.