Sentencing

Question 1

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 but the punishment they give. Section 142 of the criminal justice act 2003 sets out the purposes of sentencing for those aged 18 and over saying that a court must have regarded to:
• the punishment of offenders
• the reduction of crime
• the reform and rehabilitation of offenders
• the protection of the public
• the making of reparation by offenders to persons affected by their offences
• in addition to the purposes of sentencing given in the 2003 act, denunciation of crime is also recognised as an aim of sentencing.

Question 2

Retribution/punishment

Answer 2

• retribution - imposing a punishment because the offender has broken the law
• retribution is based on the idea of punishment. The offender 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

Question 3

Traiff 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

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

Question 5

Individual deterrence

Answer 5

• 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 two years of release. With young offenders, custodial sentences have even less of a deterrent effect. Over 70% of young offenders given a custodial sentence reoffend within two years.

Question 6

General deterrence

Answer 6

• 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

Question 7

Rehabilitation

Answer 7

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

Question 8

Reformation

Answer 8

• trying to reform the offenders behaviour so that he will not reoffend in future
• reformation is a very important element in the sentencing philosophy for young offenders, but is is also used for 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 9

Protection of the public

Answer 9

• the public needs to be protected from dangerous offenders. For this reason life imprisonment or 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 in future, the court must send 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 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 which can be monitored by an electronic tag

Question 10

Reparation

Answer 10

• where an offender compensates the victim or society for the offending behaviour
• this is aimed at compensating the victim of the crime, usually by ordering the offender to pay a sum of money to the victim to make restitution, e.g, returning stolen property to its 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
• the concept also includes making reparation to society as a whole. This can be seen mainly in the use of unpaid work requirements where offenders are required to do so many hours work on a community project under the supervision of the probation service

Question 11

Denunciation

Answer 11

• expressing society’s disapproval of an offenders behaviour
• 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 can mould societies views on the criminality of particular conduct

Question 12

Factors in sentencing

Answer 12

• when deciding what sentence to pass on a defendant the courts consider the following matters:
• the offence
• sentencing guidelines
• the offenders background

Question 13

Aggravating factors in sentencing

Answer 13

• consider how serious the crime was.
• the criminal justice act 2003 goes on to give certain factors making an offences 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 orientation being involved in the offences
• as well as these points in the criminal justice act 2003, there are also other factors which are regarded as aggravating features 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
• a victim serving the public
• the fact that the assault was premeditated
• where there is an aggravating factors the court will pass a more serve sentence that it would normally given

Question 14

Mitigating factors available in sentencing

Answer 14

• a mitigating factors is one which allows the court to give a lighter sentence than would normally be given. If the offender co operates with the police, e.g, identifying 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 defendant
• physical illness of defendant
• the fact that a defendant has no previous convictions
• evidence of genuine remorse

Question 15

Reduction in the sentence for a guilty plea

Answer 15

• there will also 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 reduction for a guilty plea at 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 one tenth reduction. The amount of reduction is on a sliding scale.
• 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 a 20% discount for that plea of guilty

Question 16

Previous convictions

Answer 16

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

Question 17

Reports

Answer 17

• 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 may 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 18

Custodial sentence

Answer 18

• a custodial sentence 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
• suspend sentences
• custodial sentences are meant to be used only for 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 offences ‘was so serious that neither a fine alone nor a community sentence can be justified’

Question 19

Mandatory life sentences

Answer 19

• for murder the only sentence a judge can impose is a life sentence. However, the judge is allowed ro 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, ideological term
• where a full life sentence does not have to be given the judge will consider any aggravating or mitigating circumstances. Aggravating factors include where:
• there is a significant degree of planning or premeditation
• the victim was particularly vulnerable
• the defedant inflicted mental or physical abuse on the victim before killing them

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

Question 20

Discretionary life sentences

Answer 20

• for other serious offences such as an offences 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 21

Fixed term sentences

Answer 21

• 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 an the defendants pervious record. Imprisonment is for a set number of months or years called a ‘fixed term’ sentence
• prisoners do not serve the whole of the sentence passed by the court. Anyone sent to prison is automatically released after they have served half of the sentence. Only offenders are aged 21 and over and can be given a sentence of imprisonment

Question 22

Prison population

Answer 22

• a problem is that prisons in England and Wales are overcrowded. There has been a big increase in the number of people in prison and there are not neigh prison places.

Question 23

Suspended prison sentences

Answer 23

• an adult offender may be given a suspend prison sentence of up to two years. This means that the sentence does not take effect immediately. The court will fox a time during which the sentences is suspended; this can be for any period up to two years, if during this time the offender does commit another offence the prison sentence will be ‘activated’ and the offender will serve that sentence.
• a suspended sentence should only be given where the offence is so serious than an immediate custodial sentence would have been appropriate, but there are exceptional circumstances in the case that justify suspending the sentence

Question 24

Community orders

Answer 24

• the criminal justice act 2003 create one community under which the court can combine any requirements it thinks are necessary. The sentences can ‘mix and match’ requirements, allowing them to fit the restrictions and rehabilitation of the offenders needs. The sentence is available for offenders aged 16 and over. The full list of requirements available for the courts is set out on s 177 of criminal justice act 2003.
• such as unpaid work requirement
• prohibited activity requirement
• curfew requirement
• supervision requirement

Question 25

Fines

Answer 25

• 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 26

Discharges

Answer 26

• these may be either:
• a conditional discharge
• an absolute discharge

Question 27

Conditional discharge

Answer 27

• a conditional discharge 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. Conditional discharges are widely used by magistrates courts for first time minor defences

Question 28

Absolute discharge

Answer 28

• an absolute discharge 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 than an absolute discharge was appropriate

Question 29

Other powers of the court

Answer 29

• 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 30

Victim surcharge

Answer 30

In addition, when a court passes a sentence it must also order 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 raise from the victim surcharge is used to fund victim services through the victim and witness general fund

Question 31

Evaluation - penal policies and their effects

Answer 31

• sentencing policies have an effect 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.

Question 32

Prison population

Answer 32

• there has been concern at the number of people in prison.
• the criminal justice act 2003 introduce 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 still the highest in Europe

Question 33

Reoffending

Answer 33

• 44.75% of adults who serve a prison sentence reoffend within one year from their release from prison.

Question 34

Women and sentencing

Answer 34

• numerically there are far fewer women in prison then men. In 2016 there were about 4,000 women in prison, compared to about 82,000 men.
• women are also more likely to be given a discharge or community service than men.