Sentencing by the courts

When a defendant is convicted, there may be an adjournment before sentencing takes place, but there must be good reason for such an adjournment. Typically, an adjournment is required because the court requires a pre-sentence report before passing an appropriate sentence.

In the Magistrates’ Court, adjournments following a conviction must not exceed four weeks where the offender is granted bail, or three weeks if remanded in custody. The Crown Court normally adopts the same periods.

The principles set out below apply to offenders aged 18 or over.

The Criminal Justice Act 2003 sets out the objectives of sentencing. When passing sentence, the court must have regard to these objectives:

• Punishment of offenders;
• Reduction of crime (including reduction by deterrence);
• Reform and rehabilitation of offenders;
• Protection of the public;
• Making of reparation by offenders to persons affected by their offences.

Sentencing is a two-stage process requiring consideration of both aggravating and mitigating factors. The court must consider what sentence does the seriousness of the offence itself merit; and whether that sentence can be reduced in light of mitigating factors.

The seriousness of an offence is a significant concept because it helps determine which of the sentencing thresholds has been crossed, and indicates whether a custodial, community or other sentence is the most appropriate. The seriousness of the offence is, of course, the key factor in deciding the length of a custodial sentence, the conditions of a community sentence, and the amount of any fine imposed.

‘Culpability’ is the initial factor in determining the seriousness of an offence. Sentencing Guidelines Council’s (SGC) Guidance on Seriousness identifies four levels of culpability:

1. Intention to cause harm: highest culpability when an offence is planned; the worse the harm intended, the greater the seriousness.
2. Recklessness as to whether harm is caused: the defendant appreciates some harm would be caused but goes ahead anyway, giving no thought to the consequences even though extent of risk would be obvious to most people.
3. Knowledge of specific risks entailed by actions but does not intend to cause the harm that results.
4. Negligence.

The SGC identifies various factors that indicate significantly lower culpability, including:

• A greater degree of provocation than normally expected;
• Mental illness or disability;
• Youth or age, where it affects the responsibility of the individual defendant;
• The fact that the offender played only a minor role in the offence.

The presence or existence of various factors amount to an aggravating factor which indicates a higher than usual level of culpability and, therefore, a higher sentence. These factors include:

• Offence committed whilst on bail for other offences;
• Failure to respond to previous sentences;
• Offence was racially or religiously aggravated;
• Planning of an offence;
• Previous conviction(s), particularly where a pattern of repeat offending is disclosed;
• ‘Professional’ offending;
• Offenders operating in groups or gangs;
• High level of profit from the offence;
• An attempt to conceal or dispose of evidence;
• Offence committed whilst on license;
• Deliberate targeting of vulnerable victims;
• Use of a weapon to frighten or injure victims;
• Abuse of power;
• Abuse of a position of trust;
• Multiple victims;
• Additional degradation of the victim.

Similarly, the SGC sets out various factors indicating a more than usually serious degree of harm including, for instance, multiple victims or a vulnerable victim.

Pleading guilty normally reduces the sentence. When sentencing, the court should take into account at what stage of the proceedings the defendant indicated an intention to plead guilty; and the circumstances in which that indication was given.

The discount for a guilty plea should be based on a sliding scale, so that the offender gets more credit for pleading guilty at the earliest opportunity, as follows:

• The normal, maximum one third where the guilty plea was entered at the first reasonable opportunity;
• A maximum of one quarter where a trial date has been set;
• A maximum of one tenth for a guilty plea entered at the ‘door of the court’ or after the trial has begun.

The SGC guidance sets out the recommended approach to giving the defendant credit for pleading guilty by setting out four steps:

1. The court decides the sentence for the offence(s), taking into account any offences to be taken into consideration (TICs).
2. The court selects the amount of the reduction by reference to the sliding scale.
3. The court applies that reduction to the sentence initially decided on.
4. When pronouncing sentence, the court should usually state what sentence would have been imposed had there been no reduction as a result of a guilty plea.

Under the Criminal Justice Act 2003 (section 143(2)), “…the court must treat each previous conviction as an aggravating factor if (in the case of that conviction) the court considers that it can reasonably be so treated having regard, in particular to…the nature of the offence to which the conviction relates and its relevance to the current offence; and the time that has elapsed since the conviction”.

In other words, an offence is to be regarded as more serious if committed by someone with relevant previous convictions (relevance depending on how old the previous convictions are and how similar in type they are to the present offence).