#10383 - Sentencing Principles - BPC Criminal Litigation (formerly BPTC) 2024/2025

SENTENCING PRINCIPLES

PURPOSES OF SENTENCING

• for offenders 18+

1. punishment of offenders

2. reduction of crime (including by deterrence)

3. reform and rehab of offenders

4. public protection

5. offender reparation to those affected (CJA 2003 s142(1))

   • for offenders under 18

1. prevent offending

2. have regard to welfare of child / young person

SENTENCING GUIDELINES AND ROLE OF SENTENCING COUNCIL

• CAJA 2009 created the Sentencing Council (SC), abolishing Sentencing Guidelines Council (SGC), BUT guidelines issued by SGC treated as if issued by SC

• two types of guidelines:

1. definitive SC guidelines - should specify offence range + (if different offence categories exist) category range within it + starting point (s121 CAJA 2009)

2. definitive CA guidelines - authoritative but NOT strictly binding

• duty to follow SC guidelines

  • court must follow relevant sentencing guidelines, unless contrary to interests of justice (s125 CAJA 2009)

    • interests of justice

      • includes CA case law + definitive CA guidelines

      • BUT cannot depart from SC guidelines if just think out of touch / earlier authority preferable

  • must impose sentence within offence range subject to

    • reduction for G plea, assistance + any rule as to totality of sentences; +

    • statutory specific sentences

  • should decide which category most resembles offender's case to determine starting point, unless no category sufficiently resembles

    • need NOT impose sentence within category range

APPROACH TO SENTENCING AND KEY PRINCIPLES

1. OFFENCE CATEGORY

   • purpose

     • determine:

       • seriousness (= culpability + harm)

       • which sentencing threshold crossed + whether custodial / community / other sentence appropriate + length of custodial sentence / onerousness of community requirements / amount of fine

   • seriousness

     • culpability

       • 4 levels

1. intention (highest = planned)

2. recklessness (appreciates some harm but proceeds giving no thought to consequences, though risk obvious)

3. knowledge of risks (though no intention to cause resulting harm)

4. negligence

   • harm (actual, intended or foreseeable)

1. to individual (depends on impact on particular person)

2. to community

3. other e.g. animal cruelty causing indirect harm to human

   • prevalence (how common crime is)

     • general rule: should not affect seriousness

     • exception: local circumstances causing harm to community + supporting evidence from external source

   • the sentencing thresholds

     • the custody threshold

       • court must NOT pass unless offence(s) so serious that neither fine / community sentence can be justified (152(2) CJA 2003)

       • passing test does NOT mean custodial sentence inevitable

       • approach

1. custody threshold passed?

2. if so, custodial sentence avoidable?

3. if so, can it be suspended?

4. if not, can it be served intermittently

5. if not, impose immediate custodial sentence

   • length of custodial sentence

     • shortest term commensurate with seriousness of offence

   • threshold for community sentences

     • court must NOT pass unless

1. offence(s) serious enough to warrant (CJA s148(1)); OR

2. offence NOT serious enough BUT offender 16+ fined on 3+ occasions + in interests of justice

   • NOT inevitable if threshold passed - court should consider all options

2. METHOD (2 stages)

   1. STAGE 1: ID starting point + category range

• starting point = based on first time offender pleading NG + applies irrespective of plea / pre-cons (considered at stage 2)

• ask: which e.g. does offence most closely resemble?

  1. STAGE 2: aggravating + mitigating factors = statutory court must treat as aggravating factor if present

• aggravating

  • higher culpability

  1. vulnerable V

  2. deliberately causing more harm than necessary for commission of offence

  3. pre cons

  4. offence committed on bail

  5. offence committed on licence (following release from custodial sentence)

  6. racial / religious aggravation / offences with terrorist connection

  7. related to disability, sexual orientation, transgender identity

  8. failure to respond to non-custodial sentences

  9. planning

  10. intention to commit more harm than results

  11. gangs

  12. commission of offence for financial gain / high profit / 'professional offending'

  13. attempting to conceal evidence

  14. drink / drugs

  15. use of weapon

  16. abuse of trust / power

  17. use of child to assist / child complicit

      • greater harm

1. multiple Vs

2. exceptionally serious effect on V (even if unintended)

3. sustained assault / repeated assault on same V

4. vulnerable V

5. location of offence e.g. isolated

6. offence against person providing public service

7. presence of others

8. additional degradation of V

9. high value of property (including sentimental)

• mitigating (lesser culpability)

  1. greater degree of provocation

  2. mental illness / disability

  3. youth / age affecting responsibility

  4. minor role

• can move outside category range if necessary (e.g. multiple offences, pre cons) + depart from guidelines if offender at very top of highest range

  1. prelim view of appropriate sentence (usually within category range)

3. OFFENDER MITIGATION

   • court has discretion to take into account whether to take into account; less relevant if offence very serious

   • even if custody threshold passed, offender mitigation may make custodial sentence inappropriate

   • remorse, good character, NO pre cons, immaturity, old age, serious illness, lapse of time since offence not fault of offender, determination to address addiction / offending behaviour, meritorious conduct unrelated to offence

4. REQUIRED REDUCTIONS IN SENTENCE

   1. reduction in sentence for a G plea (CJA 2003 s144)

      • = a mitigating factor

      • court must state that reduction made + should state what sentence would have been without reduction

      • why?

        • avoids trial, shortens gap between sentence + charge, saves costs + (early plea) alleviates V and W concern about giving evidence, NOT to reflect remorse

      • applies:

        • mags', CC, youth court

        • to punitive elements

      • does NOT apply

        • to rehabilitative elements

        • ancillary orders, driving disqualifications

      • if appropriate, reduction = change from custodial to community sentence

      • how?

        • reduction by proportion of total sentence calculated by reference to circumstances of plea + stage of proceedings

      • amount?

        • reduction may take below offence range

        • following recommended reduction given unless good reasons for different amount e.g. pros case overwhelming

          1. at first reasonable opportunity = 1/3 (max) / 1/5 if pros case overwhelming

          2. if trial date set = 1/4

          3. if shortly before long complex trial = 1/5 (Caley - not routine)

          4. if court door / after trial starts = 1/10

   2. reduction in sentence for assistance given / offered to authorities by offender (Serious Organised Crime and Police Act 2005 s73)

      • applies if G plea AND convicted in CC OR committed to CC for sentence

      • court may take into account extent + nature of assistance

      • court must state that passed lesser sentence + what greater sentence would've been (or give written notice to D + pros if disclosure not in public interest)

      • sentence can be reviewed if receive discount + break promise to assist, give further assistance / if didn't receive discount + subsequently offer assistance

      • amount?

        • not set in stone BUT significant + could change custodial sentence to suspended

5. ANCILLARY ORDERS, INCLUDING COMPENSATION

6. DECIDE SENTENCE + GIVE REASONS

   • explain departure from starting point

   • must give reasons for sentence in open court

   • should give reasons for NOT making order put before it / expected to make

   • must ID sentencing guidelines + give reasons if impose sentence of different kind or outside range (i.e. contrary to interests of justice to follow guidelines)

   • must explain to offender:

     1. effect of sentence

     2. effects of non-compliance

     3. power of review

   • must state if reduction for G plea

7. TOTALITY PRINCIPLE (if sentencing for multiple offences)

   • should pass total sentence which reflects all offending behaviour + is just and proportionate (NOT just add individual sentences together)

   • sentences can run:

     • consecutively (offences unrelated); OR

     • concurrently (offences connected, or form series)

CREDITING TIME ON REMAND

• following must be deducted from custodial (including suspended) sentence

  • any time spent on remand prior to conviction / sentence

  • half number of days spent on bail subject to curfew + electronic tag

NEWTON HEARINGS (see flow chart)

• sometimes, D pleads G on factual basis that is less serious than that advanced by pros

• where D pleads G AND version of facts put forward by pros and D differs significantly (= likely to have an effect on sentencing), court must:

1. accept D's version (unless defence story is wholly incredible);

-----OR-----

2. hear evidence for both sides AND make finding of fact (Newton hearing)

   1. judge must be satisfied BRD before accepting pros version

   2. credit for plea will be given if D establishes his version in the Newton (if D's version rejected, some / all credit lost)

   3. CANNOT be a ‘backdoor’ trial for a more serious offence: if facts emerge at Newton consistent with more serious offence, judge must ignore (if want to add another offence must add count to indictment)

   4. appeal only if decision Wednesbury unreasonable

ADVANCE INDICATION OF SENTENCE (Goodyear indication)

• D can request indication of max sentence if D pleaded G at stage when indication sought

• judge:

  • should NOT give advance indication unless sought by D

  • CAN remind defence counsel (in open court and in D's presence) that D is entitled to seek an indication

  • has unfettered discretion to refuse to give an indication OR wait till PSR available before deciding to give

• once indication given is binding on court (current judge and others that take over the case)

• any reference to...