#15035 - Sentencing - Criminology

New structure is laid out in all of the guidelines issued by Sentencing Council (CJA 2009)

1. Determine the offence category according to Sentencing Guidelines

2. Identify starting point and reach a sentence within the category range

   1. Then adjust for aggravating or mitigating factors (which could include past convictions or other relevant factors)

3. Consider any other factors which indicate a reduction, such as assistance to the prosecution

   1. Court usually informed of this assistance by investigators: opaque process

4. Discount for guilty pleas

   1. As required by CJA 2003 s144, according to sliding scale in sentencing guidelines

      1. Makes administrative sense since hearing is shortened

      2. Might also avoid an unnecessary acquittal just because jury is unsure if the facts fulfil the requirements stated by judge

   2. Chaytors [2012] EWCA Crim 1810

      1. Plea and Case Management Hearing (PCMH) might not be the “first reasonable opportunity” warranting 1/3 discount as per guideline

      2. But if judge accepts that it is at the “first reasonable opportunity” there should be the “conventional one-third discount”

5. Assess offender’s dangerousness

6. Apply totality principle

7. Compensation and ancillary orders

   1. Court must give reasons for not making compensation orders if there has been personal injury, loss or damage resulting from the offence

8. Court has duty to give reasons

   1. ISSUE: can apply any of the sentencing principles to suit the case

9. Consideration for remand time

   1. LASPOA 2012: removed judicial discretion in CJA 2003 regarding whether or not remand time should count towards sentence

      1. Prisons can administratively calculate time in remand

      2. S240A: time spent on electronic tag can be taken into account at 50% rate if mentioned by the judge

Criminal Justice Act 2003, s142

• Punishment of offenders

• Reduction of crime (including deterrence)

• Reform and rehabilitation of offenders

• Protection of the public

• Making of reparation to persons affected by their offences

• ISSUE: this merely provides a list without prioritising the different purposes

  • Purposes like reform and rehabilitation might be at odds with deterrence

  • Judges can therefore, in practice, choose whichever purpose suits their sentencing style. Does not result in consistency

Relationship with proportionality

• Need not be at odds with the primary rationale of sentencing being proportionate to offence

• Sentencing is “closely entwined with social policy” and “politically sensitive”, so additional factors should be recognised (and justified) in sentencing

• Use of aggravating and mitigating factors in English law might be “purely adventitious”

  • No distinction between robbery and armed robbery, rather weapons are an aggravating factor

  • Causing death by driving has several “determinants of seriousness” which are effectively aggravating factors”

Aggravating and mitigating factors

• May be, but are not necessarily, opposites of each other

• The opposite of a mitigating factor may be neutral rather than aggravating

• E.g. pleading guilty is a mitigating factor (allows for discount) but pleading not guilty is not an aggravating factor

Although individual sentences for the offences might be proportionate, the total sentence cannot be allowed to be excessive when taken as a whole

• CJA 2003, s166(3): courts can mitigate sentence “by applying any rule of law as to the totality of sentences”

SGC Guideline: TICs and Totality

• 2 main elements of totality

  • “all courts, when sentencing for more than a single offence, should pass a total sentence which reflects all the offending behaviour before it and is just and proportionate. This is so whether the sentences are structured as concurrent or consecutive. Therefore, concurrent sentences will ordinarily be longer than a single sentence for a single offence”

  • “It is necessary to address the offending behaviour, together with the factors personal to the offender as a whole” instead of just adding up sentences

• Consecutive sentences shouldn’t usually be imposed for offences arising from the same facts/incidents, only where concurrent sentences would be insufficient

• Indeterminate sentences shouldn’t run consecutively

  • If a determinate sentence is imposed consecutively to the indeterminate sentence, it starts when the minimum term of the indeterminate sentence expires

• If total sentence is excessive, courts can proportionately reduce the individual sentences so as to achieve overall proportionality

ISSUE (Padfield): does this grant offenders a “discount for bulk offending?”

• Although this might better support the proportionality principle than cumulative sentencing, it could also result in under-sentencing of offenders with many offences on the indictment

• Grant [2008] EWCA Crim 2244

  • D convicted of supplying drugs to boyfriend in prison

  • CA (Wilkie J): although the sentences were rightly imposed based on the offences, they should have been made to run concurrently in order to fulfil the totality principle so as not to be “manifestly excessive” in the circumstances

• Court is required to treat these as aggravating factors

• ISSUE (Ashworth): this doesn’t increase the harm of the offence nor culpability

  • Might be due to offender’s breach of trust, but the serving of a sentence for offence on bail is to be consecutive to original offence sentence and would therefore be longer anyway?

  • No clear proof that this actually helps deterrence

• General aggravating factor; must be stated in open court that it was so aggravated

• Definition: Crime and Disorder Act 1998, 28

  • Conduct that is “racially motivated”

• CDA 1998 also created racially aggravated offences of wounding and assault, criminal damage, public order offences and harassment

  • ISSUE: increase in sentences was not equal

• CA: accepted some of the SAP guidelines on sentencing

  • Courts should state the sentence without racial/religious aggravation and then with that, to ensure transparency

  • Identified factors which affect seriousness of the racial/religious aggravation

• Patterns of conduct, repeated hostility, etc.

  • Relative brevity or minor/incidental abuse might reduce the seriousness of the aggravation

• If offender shown to be wholly/partially motivated by or is hostile to these characteristics of the victim

• E.g. evidence of homophobia on the part of offender would be a factor

• Suggested by Sentencing Guidelines Council in Overarching Principles: Seriousness

  • Includes the statutory factors but also several others (non-exhaustive list)

  • Ashworth: Meant to indicate culpability and seriousness of offence, hence still proportionate?

  • If the offence itself reflects the factor (e.g. vulnerable victims), it cannot be used as a further aggravating factor

• Applicable to sentencing of adults (>18 years old)

• D tricked his way into old woman’s house and stole 200, a watch and a mobile phone (had committed similar offences before)

• Was sentenced to 9 years imprisonment, CA reduced it to 8 for guilty plea

• CA: agreed with trial judge that “society rightly reserves its deepest censure for those who prey on vulnerable groups such as the elderly”

  • Proportionate due to the greater harm that results in casting “a shadow on the lives of elderly people” in general

• ISSUE: whilst the targeting of vulnerable victims might make D more culpable, should the sentence be increased that much in response?

  • In O’Brien, sentence of 8 years might be effectively double of what a normal distraction burglary (goods recovered quickly) with past convictions would receive

• Aggravating factors become more important than the offence itself?

• Probability of greater harm caused, and may also indicate increased culpability if they collaborate to pursue and unlawful purpose

• Victim might also be put in greater fear when faced with more than one offender

• NOTE: some may be charged as conspiracy, so the factors may not apply?

• Premeditated, so probably more culpable

  • Indicates stronger criminal motivation compared to acting on impulse

• Possibility that the planning is used to minimise harmful effects and collateral damage?

• Offenders do (or should) realise that their voluntary intoxication might lead to uninhibited conduct with greater consequences

• Usually applied in cases where there is a history of drunk violence

• Most frequently identified aggravating factor in the Crown Courts (2008 survey)

• Sheehan and O’Mahoney [2007] 1 Cr App R (S) 149

  • Young adults with history of binge-drinking and violence were found to be dangerous and sentenced with Imprisonment for Public Protection

• Indicates a “callous indifference to the consequences of one’s actions”

• Public need to retain confidence in those placed in positions of power (e.g. police)

• Not included in the guidelines, but has been applied by the courts

• AG’s Ref No 35 of 1995...