Sentencing Principles (W2)

Question 1

E1.2 - What must the court have regard to when sentencing (Sentencing Act 2020, s 57)

Answer 1

s 57(2) - The court must have regard to the following purposes when sentencing–

(a) the punishment of offenders
(b) the reduction of crime (including its reduction by deterrence)
(c) the reform and rehabilitation of offenders
(d) the protection of the public, and
(e) the making of reparation by offenders to persons affected by their offences.

Question 2

E1.2 - What offences does s.57(1) and (2) not apply to?

Answer 2

• does not apply to an offence to which a mandatory sentence requirement applies (SA 2020, s 399)
• or to a hospital order, an interim hospital order, a hospital direction or a limitation direction (orders under the Mental Health Act 1983)
• does not apply in relation to an offender aged under 18 at the time of conviction

Question 3

E1.2 - Relevant provisions for offenders aged under 18 (CDA 1998, s 37)

Answer 3

Principal purpose of the youth justice system ‘is to prevent offending by children and young persons’ and the statutory duty under the CYPA 1933, s 44 ‘to have regard to the welfare of the child or young person.’

Question 4

E1.3 - Using purposes of sentencing to determine a sentence

Answer 4

‘The court should consider which of the five purposes of sentencing it is seeking to achieve through the sentence that is imposed. More than one purpose might be relevant and the importance of each must be weighed against the particular offence and offender characteristics when determining sentence’ (Sentencing Council’s General Guideline: Overarching Principles)

Question 5

E1.4 - Mandatory use of sentencing guidelines (Sentencing Act 2020, s.59)

Answer 5

(1) Every court–
(a) must, in sentencing an offender, follow any sentencing guidelines which are relevant to the offender’s case, and
(b) must, in exercising any other function relating to the sentencing of offenders, follow any sentencing guidelines which are relevant to the exercise of the function,
unless the court is satisfied that it would be contrary to the interests of justice to do so.

Question 6

SG2-3 - What to do if there is no definitive sentencing guideline for the offence

Answer 6

The court should take account of the following:

• the statutory maximum sentence (and if appropriate, minimum sentence) for the offence;
• sentencing judgments of the Court of Appeal (Criminal Division’ for the offence; and
• definitive sentencing guidelines for analogous offences.

Question 7

SG2-3 - Using the sentencing guidelines (STEP 1)

Answer 7

Where possible, the court should follow the stepped approach:

(a) the culpability of the offender
(b) the harm
- Initial assessment of harm and culpability should take no account of plea or previous conviction.

Question 8

SG2-4 - Using the sentencing guidelines (STEP 2)

Answer 8

Aggravating and mitigator factors

• Court should take into account factors that may make the offence more serious and factors that may reduce seriousness or reflect personal mitigation
• This may result in any upward or downward adjustment of the sentence
• It is for the court to determine how much weight to give to them

Question 9

SG2-5 - Imposition of fines

Answer 9

• Court should determine level of fine in accordance with the Band guidelines and s 164 Criminal Justice Act 2003, which requires that the fine must reflect the seriousness of the offence and that the court must take into account the financial circumstances of the offender.
• Where possible, the fine should remove any economic benefit the offender has derived through offending
• It should not be cheaper to offend than to comply with the law.
• Where means of the offender are limited, priority should be given to compensation over any other form of financial penalty
• When fining organisations, the fine must be sufficiently substantial to have a real economic impact proportionate to the gravity of the offence.

Question 10

SG2-5 - Obtaining financial information from the offender

Answer 10

• It is for the offender to disclose to the court any data related to their financial position
• If necessary, the court can compel the disclosure of an offender’s financial circumstances (s 162 Criminal Justice Act 2003)
• In the absence of disclosure or where the court is not satisfied it has sufficiently reliable information, the court is entitled to draw reasonable inference as to the offender’s means from the evidence it has heard and the circumstances of the case
• The court may conclude the offender is able to afford any fine imposed unless the offender has supplied information to the contrary

Question 11

SG2-7 - Statutory aggravating factors

Answer 11

• Previous convictions, having regard to (a) their relevance to the current offence and (b) the time that has elapsed since
• Offence committed whilst on bail
• Offence motivated by or demonstrating hostility based on protected characteristics/presumed characteristics
• Offence committed against an emergency worker acting in the exercise of functions as such a worker

Question 12

SG2-7 - Other common aggravating factors

Answer 12

• Commission of offence while under influence of alcohol or drugs
• Offence committed as part of a group
• Offence involved use or threat of a weapon
• Planning of an offence
• Offence committed for financial gain
• High level of profit from the offence
• Abuse of trust or dominant position
• Restraint, detention or degradation of victim
• Vulnerable victim
• Victim was providing a public service or performing a public duty at time of the offence
• Others put at risk of harm
• Offence committed in the presence of others (esp.children)
• Attempts to conceal evidence
• Blame wrongly placed on others
• Failure to respond to warnings or concerns
• Committed on licence or while subject to court order(s)
• Offence committed in custody
• Committed in a domestic context
• Committed in a terrorist context
• Location and/or timing of the offence
• Established evidence of community/wider impact
• Prevalence

Question 13

SG2-8 - Mitigating factors

Answer 13

• No previous convictions or no relevant/recent conviction
• Good character and/or exemplary conduct
• Remorse
• Self-reporting
• Cooperation with investigation/early admission
• Little or no planning
• Offender had a lesser/subordinate role
• Involved through coercion/intimidation/exploitation
• Limited awareness/understanding of offence
• Little or no financial gain
• Delay since apprehension
• Activity originally legitimate
• Age and/or lack of maturity
• Sole or primary carer for dependents
• Physical disability or serious medical condition requiring urgent/intensive/long term treatment
• Mental disorder/learning disability
• Determination and/or demonstration of steps having been taken to address addiction or offending behaviour

Question 14

SG2-9 - Reduction for assistance to the prosecution (STEP 3)

Answer 14

Sections 73 and 74 Serious Organised Crime and Police Act 2005 and any other rule of law by virtue of which an offender may receive a discounted sentence due to assistance given or offered to prosecution/investigator

Question 15

SG2-10 - Reduction for guilty plea (STEP 4)

Answer 15

Section 144 Criminal Justice Act 2003

• At first opportunity = 1/3 reduction
• 1/3 should not normally be given at PTPH in Crown Court unless the defendant has indicated they will be plead guilty in the magistrates court. An unequivocal indication of guilty at mags is entitled to 1/3. If the defendant enters ‘G likely’ instead of ‘G indicated’, this is not unequivocal and so not so entitled.
• At PTPH = 1/4 reduction
• On day of trial = 1/10 reduction
• During the course of the trial = reduced further, even to 0

Question 16

SG2-11 - Dangerousness (STEP 5)

Answer 16

Where the offence is listed in Schedule 15 and/or Schedule 15B of the Criminal Justice Act 2003

• Court should consider whether having regard to the criteria contained in Chapter 5 of Part 12 of the Criminal Justice Act 2003 would be appropriate to impose a life sentence (s 224A or s 225), or an extended sentence (s 226A)
• When sentencing an offender to a life sentence under these provisions, the notional determinate sentence should be used as the basis for the setting of a minimum term

Question 17

SG2-12 - Special custodial sentence for certain offenders of particular concern (STEP 6)

Answer 17

Where the offence is listed in Schedule 18A Criminal Justice Act 2003 and the court does not impose a life sentence or an extended sentence, but does impose a period of imprisonment, the term of the sentence must be equal to the total of the appropriate custodial term and a further period of 1 year for which the offender is to be subject to a licence.

Question 18

SG2-13 - Totality principle (STEP 7)

Answer 18

If sentencing for more than one offence, or where the offender is already serving a sentence, consider whether the total sentence is just and proportionate to the overall offending behaviour

Question 19

SG2-14 - Compensation and ancillary orders (STEP 8)

Answer 19

• Should be considered in all cases.
• Where the offence involves a firearm or offensive weapon the court may consider the criteria in s 19 Serious Crime Act 2007 for the imposition of a Serious Crime Prevention Order

Question 20

SG2-15 - Reasons (STEP 9)

Answer 20

s 174 Criminal Justice Act 2003 - Court has a duty to give reasons for, and explain the effect of, the sentence.

Question 21

SG2-16 - Consideration for time spent on bail (tagged curfew) (STEP 10)

Answer 21

s 240A Criminal Justice Act 2003 - court must consider whether to give credit for time spent on bail.

Question 22

E1.7 - Determining the seriousness of an offence (Sentencing Act 2000, s.63)

Answer 22

Where a court is considering the seriousness of any offence, it must consider–

(a) the offender’s culpability in committing the offence, and
(b) any harm which the offence
(i) caused,
(ii) was intended to cause, or
(iii) might foreseeably have caused.

Question 23

E1.8 - Factors to be taken into account when making a reduction for a guilty plea (s 73 Sentencing Act 2020)

Answer 23

(2) The court must take into account the following matters–
(a) the stage in the proceedings…at which the offender indicated the intention to plead guilty, and
(b) the circumstances in which the indication was given.
(3) If–
(a) a mandatory sentence requirement applies in relation to the offence, and
(b) the offender is aged 18 or over when convicted,
the mandatory sentence requirement does not prevent the court…from imposing any sentence which is not less than 80% of the sentence which would otherwise be required.

Question 24

E1.8 - Mandatory sentence requirements

Answer 24

• s 312 (threatening with weapon/bladed article)
• s 313 (minimum of 7 years for a third class A drug trafficking offence)
• s 314 (minimum of 3 years for third domestic burglary)
• s 315 (minimum sentence for repeat offence involving weapon/bladed article)

Question 25

E1.8 - Situation for minimum sentences for offences involving weapon/bladed article

Answer 25

When the offender is aged 16 or 17 when convicted, the minimum sentence does not prevent the court from imposing any sentence it thinks appropriate.

Question 26

E1.8 - Counter Terrorism and Sentencing Bill

Answer 26

Will insert a new subsection (2A) into s 73 which states that where a court imposes a serious terrorism sentence, nothing prevents the court from imposing as the appropriate custodial term ‘a term of any length which is not less than 80% of the term which would otherwise be required.’

Question 27

E1.8 - Reasoning behind reduction for guilty plea

Answer 27

(a) normally reduces the impact of the crime upon the victim(s)
(b) saves victims and witnesses from having to testify
(c) is in the public interest in that it saves public time and money

Question 28

E1.8 - Things that reduction from guilty plea is separate from

Answer 28

• separate matter from remorse and other matters of mitigation
• separate from reduction for assistance to prosecution or enforcement authorities
• reduction for guilty plea applies regardless of the strength of evidence against the offender and the strength of evidence should not be taken into account when determining the reduction
• guilty plea has no impact on ancillary orders, including orders of disqualification from driving

Question 29

E1.9 - Working out and clarifying reduction for guilty plea

Answer 29

• Where the court imposes a punishment on an offender that is less severe than it otherwise would have imposed, it must state that fact (s 52(7) Sentencing Act 2020)
• Where multiple offences are being sentenced at the same time, the reduction must be made in respect of each sentence rather than overall (Smith)
• There is a duty on both prosecution and defence to alert the court to any mathematical error made by the judge as to the credit to be given for a guilty plea.

Question 30

E1.9 - Reduction for guilty plea by changing the type of sentence

Answer 30

• It is possible to take a guilty plea into account by reducing a custodial sentence to a community sentence, or reducing a community sentence to a fine (Hussain)
• However, it is wrong to suspend a prison sentence to reflect a guilty plea. If a custodial sentence is justified for the offence, the judge should first reduce it for the guilty plea, and then decide if there are grounds that justify suspension.

Question 31

E1.9 - Exceptions to guilty plea rules

Answer 31

(1) Where the court is satisfied that there were particular circumstances which significantly reduced the defendant’s ability to understand what was alleged or make it unreasonable to expect the defendant to indicate a guilty plea sooner than was done, a reduction of one third should still be made.
- This appears to be limited to cases where the defendant genuinely cannot know whether he or she is guilty of the offence charged.

(2) Where an offender’s version of events is rejected at a Newton hearing or special reasons hearing, the reduction which would have been available at the stage the plea was indicated should normally be halved. Where witnesses are called during the hearing, it may be appropriate to further decrease the reduction.
(3) If an offender is convicted of a lesser or different offence from that originally charged, and has earlier made an unequivocal guilty plea to the lesser or different offence, the court should give the level of reduction appropriate for that stage it was made at
(4) Cannot reduce below the minimum of 5 year sentence for certain offences involving firearms that are prohibited weapons (Jordan)

Question 32

E1.14 - Offence committed on bail (Sentencing Act 2020, s 64)

Answer 32

• Court must treat this as an aggravating factor
• Particularly bad where the offence committed on bail is of the same type as the offence for which bail was granted (Jeffrey)
• Must be set against the sentencing principle that consecutive offences are appropriate where one offence is committed while the offender is on bail for another. If the rules were to operate together, it might result in a disproportionately severe sentence

Question 33

E1.15 - Previous convictions (Sentencing Act 2020, s 65)

Answer 33

• must be treated as an aggravating factor, with regard to the relation to current offence and time elapsed since
• convictions accrued after the instant offence was committed are not previous convictions for these purposes
• it is wrong to impose a disproportionate sentence purely on the basis of a bad record (Byrne)
• in light of previous convictions though, sentences may depart from the level indicated by the sentencing guideline
• in the case of a persistent offender, punishment and deterrence come to the fore
• previous conviction means one in the UK, another member state of the EU, or a service offence (Armed Forces Act 2006). This will be amended on 31 December 2020 to remove the EU.

Question 34

E1.16 - Hostility (Sentencing Act 2020, ss 145 and 146)

Answer 34

Aggravated by:

(a) Racial hostility
(b) Religious hostility
(c) Hostility related to disability
(d) Hostility related to sexual orientation
(e) Hostility related to transgender identity
- Can also be presumed even if not accurate
- Immaterial whether or not the offender’s hostility is also based in part on any other factor which is not mentioned
- References to a religious group means a group of persons defined by reference to religious belief or lack of religious belief

Question 35

E1.17 - Terrorist connection (Sentencing Act 2020, s.69)

Answer 35

• Applies where a court is considering the seriousness of an offence specified in Schedule 1:
• Murder, manslaughter, kidnapping, biological weapons, taking hostage, aviation and maritime security offences, nuclear material offences, chemical weapons, Channel Tunnel security offences

Question 36

E1.20 - Further info on general aggravating factors

Answer 36

• Should always be taken into account when deciding whether an offence is serious enough to warrant a community sentence or ‘so serious that neither a fine alone nor a community sentence can be justified.’
• Lies told by an offender are not an aggravating factor for sentence (Lowndes)
• However, an offender’s public denunciation of allegations made by the victim could be (A-G’s Ref (No 38 of 2013)) Protestations of innocence falling short of denunciation could not (Clifford)

Question 37

E1.21 - Further info on general mitigating factors (Sentencing Act 2020, ss.77 and 78)

Answer 37

• Nothing prevents court from taking into account any mitigating factors that they consider relevant
• The court can pass a community sentence even though it is of the opinion that the offence is so serious a community sentence would not normally be justified.
• The weight to be given to mitigation is a matter within the discretion of the court.

Question 38

E1.21 - Factors that indicate it may be appropriate to suspend a custodial sentence (Imposition of Community and Custodial Sentences Guideline)

Answer 38

(i) realistic prospect of rehabilitation
(ii) strong personal mitigation
(iii) immediate custody will result in significant harmful impact on others

Question 39

E1.22 - Prevalence

Answer 39

• Seriousness of an individual case should be judged on its own levels of harm and culpability, rather than as part of a collective social harm
• There may be exceptional circumstances that lead a court to decide that local prevalence should influence sentencing levels.
• Sentencers must have supporting evidence from an external source to justify this
• The judge would only be entitled to treat prevalence as an aggravating factor if the judge was satisfied that the level of harm in the locality was significantly higher than that elsewhere.

Question 40

E13.22 - Totality principle

Answer 40

2 elements:

(a) All courts, when sentencing for more than one offence, should pass a total sentence which reflects all the offending behaviour, and is just and proportionate. Concurrent sentences will therefore usually be longer than a single sentence for a single offence.
(b) It is usually impossible to get a proportionate sentence just by adding together single sentences. It is necessary to address the offending behaviour and the factors relevant to the offender as a whole.

• Where consecutive sentences are imposed, and one is a prescribed minimum sentence, the principle of totality must not be applied in a way that undermines the intention of Parliament in setting the minimum sentence (Raza)