Sentencing

Question 1

The aims of sentencing

Answer 1

• when judges or magistrates have to pass a sentence they will not only look at the sentences available, they will also have to decide what they are trying to achieve by the punishment they give. Section 142 of the criminal justice act 2003 sets out the purposes of sentencing of those aged 18 and over saying that a court must have to regard to:
• the punishment of offenders
• the reduction of crime
• the reform of rehabilitation of offenders
• the protection of the public
• the making of reparation by offenders to persons effected by their offences
• in addition in the 2003 act, denunciation of crime is also recognised as an aim of sentencing. Each of the aims will now be examined in turn

Question 2

Retribution/punishment

Answer 2

• retribution is based on the idea of punishment. The offered deserves punishment for his acts. This aim of sentencing does not seek to reduce crime or alter the offenders future behaviour. A judge using this aim is only concerned with the offence that was committed and making sure that the sentence given is in proportion to that offence
• the crudest form of retribution can be seen in the old saying ‘an eye for an eye and tooth for a tooth and a life for a life’. This was one of the factors used to justify the death penalty for the offence of murder

Question 3

Tariff sentences

Answer 3

• retribution, today, is based more on the idea that each offence should have a certain tariff or level of sentencing. The sentencing council produces guidelines for all the main categories of offence. Judges have to take notice of these guidelines and should not normally give a lower sentence than the minimum set out in the guidelines

Question 4

Deterrence

Answer 4

• this can be individual deterrence or general deterrence. Individual deterrence is intended to ensure that the offender does not reoffend, through fear of future punishment. General deterrence is aimed at preventing other potenial offenders from committing crime. Both are aimed at reducing future levels of crime

Question 5

What is retribution?

Answer 5

• imposing a punishment because the offender has broken the law

Question 6

What is deterrence?

Answer 6

• giving a punishment aimed at putting off the defendant from reoffending because of fear of punishment or preventing other potenial offenders from committing similar crimes

Question 7

Individual deterrence

Answer 7

• there are several penalties that can be imposed with the aim of deterring the individual offender from committing similar crimes in the future. These include a prison sentence, a suspended sentence or a heavy fine. However, prison does not appear to deter as about 55% of adult prisoners reoffend within 2 years of release. With young offenders , custodial sentences have have even less of a deterrent effect. Over 70% of young offenders given a custodial sentence reoffend within 2 years

Question 8

General deterrence

Answer 8

• the value of this is even more doubtful as potential offenders are rarely deterred by severe sentences passed on others. However, the courts do occasionally resort to making an example of an offender in order to warn other potential offenders of the type of punishment they face
• e.g, sentencing were those imposed following rioting in the summer of 2011. Many offenders were given custodial sentences for relatively minor theft offences as these occurred during the looting of shops in the riots. This was a sending a clear message to others that offenders committing offences during riots would be given serve sentences.
• general deterrence is in direct conflict with the principle of retribution, since it involves sentencing as an offender to a longer term than is deserved for the specific offence. It is probably the least effective and least fair principle of sentencing

Question 9

What is rehabilitation?

Answer 9

• trying to alter the offenders behaviour so that he will conform to community normals and not offend in the future

Question 10

What is reformation?

Answer 10

• trying to reform the offenders behaviour so that he will not offend in the future

Question 11

Reform/rehabilitation

Answer 11

• under this aim of sentencing the main aim of the penalty is to reform the offender and rehabilitate him into society. It is a forward looking aim, with the hope that the offenders behaviour will be altered by the penalty imposed, so that he will not offend in the future
• reformation is a very important element in the sentencing philosophy for young offenders, but it is also used from some adult offenders. The court will be given information about the defendants background, usually through a pre sentence report prepared by the probation service. Where relevant, the court will consider other factors, such as school reports, job prospects, or medical problems. Offenders will usually be given a community order with various requirements aimed at rehabilitating them

Question 12

Protection of the public

Answer 12

• the public needs to be protected from dangerous offenders. For this reason life imprisonment for a long term of imprisonment is given to those who commit murder or other violent or serious sexual offences.
• the criminal justice act 2003 introduced a provision for serious offences that where the court is of the opinion that there is a significant risk to members of the public of serious harm being caused by the defendant to prison for the protection of the public.
• for less serious offences there are other ways in which the public can be protected. E.g, dangerous drivers are disqualified from driving. Another method is to include an exclusion order as a requirement in a community order. This will ban the offender from going to places where he is most likely to commit an offence.
• another method of protecting the public is to impose a curfew order on the offender ordering him to remain at home for certain times of the day or night. The curfew can be monitored by an electronic tag, which should trigger an alarm if the offender leaves his home address during a curfew period

Question 13

What is reparation?

Answer 13

• where an offender compensates the victim or society for the offending behaviour

Question 14

Reparation

Answer 14

• this is aimed at compensating the victim of the crime, usually by ordering the offender to pay a sum of money to the victim or to make restitution, e.g, returning stolen property to it’s rightful owner. The courts are required to consider ordering compensation to the victim of a crime, in addition to any other penalty they may think appropriate. There are also projects to bring offenders and victims together, so that the offenders may make direct reparation
• this concept also includes making reparation to society as a whole. This can be seen in mainly in the use of unpaid work requirement where offenders are required to do so many hours work on community project under the supervision of the probation service

Question 15

Denunciation

Answer 15

• this is society expressing its disapproval of criminal activity. A sentence should indicate both to the offender and to other people that society condemns certain types of behaviour. It shows people that justice is being done
• denunciation also reinforces the moral boundaries of acceptable conduct and could mould society views on the criminality of particular conduct: e.g, drink driving is now viewed by the majority of people as unacceptable behaviour. This is largely because of the changes in the law and the increasingly severe sentences that are imposed. By sending offenders to prison, banning them from driving and imposing heavy fines, society’s opinion of drink driving has been changes

Question 16

What is denunciation

Answer 16

• expressing societies disapproval of an offenders behaviour

Question 17

Factors in sentencing

Answer 17

• the offence
• sentencing guidelines
• the offenders background

Question 18

Aggravating factors in sentencing

Answer 18

• in looking at the offence, the most important point to establish is how serious was it, of its type? This is now set in the s 143(1) of the criminal Justice act 2003.
• the act goes on to give certain factors which are considered as aggravating factors making an offence more serious. These are:
• pervious convictions for offences of a similar nature or relevant to the present offence
• the fact that the defendant was on bail when he committed the offence
• racial or religious hostility being involved in the offence
• hostility to disability or sexual ordination being involved in the offence

Question 19

Other factors which are regarded as aggravating features

Answer 19

for specific offences e.g, where the defendant has committed an assault, aggravating features include:
- the offender being part of a group attacking the victim
- a particularly vulnerable victim, e.g, young child or an elderly person
- a victim serving the public, e.g, an attack on a nurse in a hospital emergency unit
- the fact tha

Question 20

Mitigating factors available in sentencing

Answer 20

• a mitigating factor is on which allows the court to give lighter sentence than would normally be given.
• if the offender co operates with the police, e.g, helping identify others involved in the crime, then the court can take this into account when deciding sentence
• other factors taken into account in mitigation include:
• mental illness of the defendant
• physical illness of the defendant
• the fact that a defendant has no previous convictions
• evidence of genuine remorse

Question 21

Reduction in sentence for a guilty plea

Answer 21

• there will all be a reduction in sentence for a guilty plea, particularly where the defendant made that plea early in the proceedings. The sentencing council guidelines on this are that the first reasonable opportunity should attract a reduction of up to one third, while a plea of guilty after the trial has started would only be given a one tenth reduction.
• the only exception is where the evidence is overwhelming and the defendants guilt is clear. In these circumstances, even if the defendant pleads guilty at the earliest possible opportunity, the judge need only give 20% discount for that plea

Question 22

Previous convictions

Answer 22

• an important fact about the defendant is where he has previous convictions or not. Where he has a previous conviction for the same or similar type of offence, then he is likely to receive a heavier sentence
• a defendant who has no previous convictions is usually treated more leniently

Question 23

Reports

Answer 23

• the courts will often have a report prepared by the probation service on the offender and his background. If the defendant is ill, then the court mat also ask for a medical report. These reports will be considered with all other factors in deciding what sentence to impose on the defendant

Question 24

Custodial sentences

Answer 24

• is the most serious punishment that a court can impose. Custodial sentences range from a few weeks to life imprisonment. They include:
• mandatory and discretionary life sentences
• fixed term sentences
• suspended sentences
• custodial sentences are meant to be used only from serious offences. The criminal justice act 2003 says that the court must not pass a custodial sentence unless it is of the opinion that the offence ‘was so serious that neither a fine alone nor a community sentence can be justified’

Question 25

Mandatory life sentences

Answer 25

• for murder the obey sentence a judge can impose is a life sentence. However, the judge is allowed to state the minimum number of years imprisonment that the offender must serve before being eligible for release on licence. This minimum term is now governed by the criminal justice act 2003. This gives judges clear starting points for the minimum period to be ordered. The starting points range from a full life term down to 12 years depending on the facts of the case
• the types of murder a full life term has to be given include:
• the murder of a child if it involves the abduction of the child or a sexual motive
• a murder done for the purpose of advancing a political, religious, racial cause

Question 26

What happenes where a full life sentence does not have to be given

Answer 26

• where a full life sentence does not have to be given the judge will consider any aggravating or mitigating circumstances. Aggravating factors include:
• a significant degree of planning or premeditation
• the victim was particularly vulnerable
• the defendant inflicted mental or physical abuse on the victim before killing them

Mitigating factors include where there was:
- an intention to cause grievous bodily harm rather than to kill
- lack of premeditation
- a belief by the offender that the murder was an act of mercy

Question 27

Discretionary life sentences

Answer 27

• for other serious offences such as an offence under s 18 of the offences against the person act 1861, the maximum sentence is life imprisonment but the judge does not have to impose it. The judge has discretion in sentencing and can give any lesser sentence where appropriate. For certain serious offences, a life sentence should be given for a second offence

Question 28

Fixed term sentences

Answer 28

• for other crimes, the length of the sentence will depend on several factors, including the maximum sentence available for the particular crime, the seriousness of the crime and the defendants previous record. Imprisonment is a set number of months of years is called a ‘fixed term’ sentence
• prisoners do not serve the whole of the sentence passed by the court. Anyone sent to prion is automatically released after they have served half of the sentence. Only offenders aged 21 and over can be given a sentence of imprionment

Question 29

Suspended prison sentences

Answer 29

• an adult offender may be given a suspended prison sentence of up to two years. This means that the sentence does not take effect immediately. The court will fix a time during which the sentence is suspended; this can be for any period up to two years. If, during this time, the offender does not commit any further offences, the prison sentence will not be served. However, if the offender does commit another offence within the period of suspension, then 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 the case that justify suspending the sentence

Question 30

Community orders

Answer 30

• the criminal justice act 2003 created one community order under which the court can combine any requirements it thinks are necessary. These requirements are listed below. The sentences can ‘mix and match’ requirements, allowing them to fit the restrictions and rehabilitation to the offenders needs. The sentence is available for offenders aged 16 and over. The full list of requirements available to the courts is set out in s 177 of the criminal justice act 2003

Question 31

Unpaid work requirement

Answer 31

• this requires the offender to work for between 40 and 300 hours on a suitable project organised by the probation service. The exact number of hours will be foxed by the court, and those hours are then usually worked in 8 hour sessions, often at weekends. The type of work involved will be vary, depending on what schemes the local probation service has running. The offender may be required to paint school buildings, help build a play centre or work on conservation projects

Question 32

Prohibited activity requirement

Answer 32

• this requirement allows a wide variety of activities to be prohibited. The idea is to try to prevent the defendant from committing another crime of the type he has just been convicted of. Often the defendant ostensibly forbidden to go into a certain area where he has caused trouble. In some cases the defendant has been banned from wearing a ‘hoodie’

Question 33

Curfew requirement

Answer 33

• under these, an offender can be ordered to remain at a fixed address for between 2 and 16 hours in any 24 hour period. This order can last up to 6 months and may be enforced by electronic tagging. Courts can only make such an order if there is an arrangement for monitoring curfews in their area.
• such monitoring can be done by spot checks, with security firms sending someone to make sure that the offender is at home or offenders may be electronically tagged. Satellite technology may be used to track those who are tagged

Question 34

Supervision requirement

Answer 34

For this requirement the offender is placed under the supervision of a probation officer for a period of up to three years. During the period of supervision the offender must attend appointments with supervising officer or with any other person decided by the supervising officer

Question 35

Fines

Answer 35

• this is the most common way of disposing of a case in the magistrates court. In the crown court only a small percentage of offenders are dealt with by way of a fine. Usually the offender is ordered to pay the fine at a set rate each week

Question 36

Discharges

Answer 36

These may be either:
- a conditional discharge
- an absolute discharge

Question 37

What is a conditional discharge

Answer 37

• means that the court discharges an offender on the condition that no further offence is committed during a set period of up to three years. It is intended to be used where it is thought that punishment is not necessary. If an offender reoffends 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 as well as imposing a penalty for the new offence
• conditional discharges are widely used by magistrates courts for first time minor offences

Question 38

What is an absolute discharge

Answer 38

• means that, effectively, no penalty is imposed. Such a penalty is likely to be used where an offender is technically guilty but morally blameless. So, in the unlikely situation of someone being prosecuted for this, the magistrates, who would have to impose some penalty, would most probably decide that an absolute discharge was appropriate

Question 39

Other powers of the court

Answer 39

• the court has other orders it can make when sentencing an offender. These include:
• disqualifying the defendant from driving for a certain length of time - this is mostly used for motoring offences such as drink driving or dangerous driving but it can also be used for other offences such as theft of a car
• compensation order - the court can order the offender to pay a sum of money to the victim of the crime
• forfeiture order - this orders that certain property in the possession of the offender be taken from him

Question 40

Victim surcharge

Answer 40

• in addition, when a court passes a sentence it must also order that the relevant surcharge is paid. The amount of the surcharge depends on the sentence and whether at the time the offence was committed the offender was an adult or a youth.
• revenue raised from the victim surcharge is used to fund victim services through the victim and witness general fund

Question 41

Evaluation: penal policies and their effects

Answer 41

• sentencing polices have an affect on the number of offenders who are sent to prison. The Uk sends a higher percentage of its population to prison than any other EU country. The changes in sentencing policy over the last few years are reflected in the changing size of the prison population as the various governments have attempted to reduce the number of defendants sent to prion for relatively minor offences, and then reversed their policies in an effort to be seen as the party of ‘law and order’

Question 42

Prison population

Answer 42

• there has been concern at the number of people in prison. In 1951 there were only 50 per 100,000 of the population in prison; by 2001 this had risen to 136. By 2004 the UK had the highest rate of prison population per 100,000 in the whole of Europe
• the criminal justice act 2003 introduced tougher community penalties to try to avoid using custodial sentences. The prison population continued to increase for the next few years, but has been fairly stable since 2011, though it is still the highest in Europe