Sentencing

Sentencing

When a defendant has been found guilty by the Magistrates or by the jury in a Crown Court trial, a sentence must then be given. There is an underlying concept that justice requires consistency in sentencing. This means that similar crimes in other parts of the country should be given similar sentences. This is important in maintaining public confidence in the criminal justice system.

During sentencing

In sentencing an offender, judges and magistrates do not just have to look at the sentences that they have available they also have to decide what they are trying to achieve by the punishment that they give.

Section 142 criminal justice act 2003

This aspect of sentencing can be found under this act.

Classification of sentencing

However, more recently the sentencing has been codified by the Law Commission. The new act was introduced in 2020.

section 57 (2) of the Sentencing Act 2020

states that the any court dealing with an offender in respect of his offence must have regard to the following purposes of sentencing:

• punishment of offenders

• reduction of crime

• reform and rehabilitation

• protection of the public

• reparation

section 57 (2)(a) Sentencing Act 2020

This is based on the idea of punishment. The offender deserves to be punished for their acts.

• This aim of sentencing does not seek to reduce crime or alter the offenders’ behaviour in the future.

• A judge using this aim is only concerned with the offence that was committed and making sure that the sentence that is given is in proportion to the offence.

• The crudest form of retribution is ‘an eye for an eye and a tooth for a tooth and a life for a life’.

• This was one of the factors that was used to justify the death penalty for the offence of murder.

• Sometimes retribution may be part of the idea behind punishment, but it is not always the major principle around sentencing.

• The judge will pass a sentence that is in proportion to the offence. The punishment should fit the crime. The Tariff sentence are based on the idea of proportionality.

• Suitable punishment for offenders would be a longer prison sentence or a heavy fine, that is in proportion to the offence committed. Putting someone in prison with a long sentence.

Section 57 (2)(b) Sentencing Act 2020

The aim is to reduce crime by deterring individual offenders from comment the same offence again or similar crimes.

• The aim is also used to deter society from committing offences. If society sees an offender being given a harsh sentence it is hoped that this will deter others from committing the same offence.

• Individual deterrence - where the sentence is designed to make the offender not wish to re-offend for fear of suffering punishment.

• Suitable punishment for individual deterrence prison, heavy fine or community orders

• General deterrence, where a sentence is passed in order to send out a message to society that the behaviour of an offender is unacceptable. (London Riots)

• General deterrence is in direct conflict with the principle of retribution, since it involves sentencing the offender to a longer term than is deserved for the offence. It is probably the least effective and the lease fair of all of the aims.

• Suitable punishment for general deterrence prison, heavy fine or community orders

Section 57 (2)(c) Sentencing Act 2020

The main aim of the penalty is to reform the offender and rehabilitate them into society.

• Offering the offender help to overcome problems that he might face therefore making it easier to avoid future offending.

• Much of rehabilitation involves giving the offender new skills to help them cope better with life.

• It is a forward-looking aim, with the hope it will reduce crime in the future.

• It is a very important element in the sentencing philosophy for young offenders, but it is also used for some adult offenders.

• Suitable punishment - Suspended prison sentence, commensurate fine, community sentences (including education or drug-rehabilitation) or discharges.

Section 57 (2)(d) Sentencing Act 2020

The public needs to be protected from dangerous offenders.

• For serious offences that where the court is of the opinion that there is a significant risk to members of the public or serious harm being caused by the D in the future, the court must send the D to prison for the protection of the public.

• It is for this reason that life imprisonment or long periods of imprisonment are given to those who commit murder or other violent or sexual offences.

• For less serious offences there are other ways in which the public can be protected. For example, dangerous drivers can be disqualified from driving.

• Another method would be to include an exclusion order as a requirement to a community order. This will ban the offender from going to places where they are more likely to commit an offence.

• Another method of protecting the public would be to impose a curfew order on the offender ordering them to remain at home for certain times of the day or night. The curfew could be monitored with an electronic tag.

• Section 142 LASPO introduced offences of threatening with article with blade or point or offensive weapon in public or on school premises. LASPO also introduced a maximum of five years custodial sentence for causing serious injury by dangerous driving.

• LASPO introduced a new mandatory life sentence for people convicted of a second very serious sexual or violent crime. This protects the public from offenders who reoffend.

• Suitable punishment, prison, heavy fine, electronic monitoring, bans.

Section 57 (2)(e) Sentencing Act 2020

• This is aimed at compensating the V of the crime. This aim provides the offender with the opportunity to make amends for the harm caused to the victim or society. for example by returning stolen property to its rightful owner.

• The offender might be ordered to pay compensation to the victim or make restitution. This aim also looks to include making reparation to society.

• The courts are required to consider ordering compensation to the V of crime, in addition to the other penalty they may think is appropriate.

• There are also projects to bring offenders and victims together, so that the offender can make direct reparation.

• Suitable punishment - Fine, community sentences

Aggravating factors

• Set out in Section 63 of the Sentencing Act 2020 which states that: ‘In considering the seriousness of the offence, the court must consider the offenders culpability in committing the offence and any harm which the offence caused, or was intended to cause or might foreseeably have caused’

• The Act then goes on and identified certain factors that are considered aggravating factors making an offence more serious.

• These make a crime more serious and include, amongst other factors:

o Offender has previous convictions

o Offender committed whilst on bail

o Offender is operating as part of a gang

o Offender has deliberately targeted a vulnerable victim

o When the offence was committed it was motivated by, or demonstrating hostility towards, a person who falls within one or more of the protected characteristics

Section 63 of the Sentencing Act 2020

Set out in this act which states that: ‘In considering the seriousness of the offence, the court must consider the offenders culpability in committing the offence and any harm which the offence caused, or was intended to cause or might foreseeably have caused’

Mitigating factors

These may reduce the sentence and include, amongst other factors:

o Genuine remorse

o Playing a minor part

o First time offence

o Co-operation and admission of guilt at the earliest opportunity

Types of adult sentences

• Custodial

• Non-custodial

• Fines

• Discharge

Custodial sentence

• Section 230 (2) of the Sentencing Act 2020. A custodial sentence can be imposed if the offence is so serious that neither a fine alone nor a community sentence can be justified for the offence.

• The sentence imposed by the Court represents the maximum amount of time that the offender will remain in prison. Custodial sentences can range from a few weeks to life.

• There are different sentences which an adult may be given:

o Mandatory life sentence Discretionary life sentence

o Extended Determinate Sentence

o Minimum Sentences

o Suspended sentence

o Fixed-term sentence

o Home Detention Curfew

Section 230 (2) of the Sentencing Act 2020.

A custodial sentence can be imposed if the offence is so serious that neither a fine alone nor a community sentence can be justified for the offence.

Non-custodial

Section 200 of the Sentencing Act 2020 an adult may be given a Community Order which may include one or more of 14 available requirements (Section 201 SA 2020),

o An unpaid work requirement

o Curfew requirement

o Electronic monitoring requirement

o Exclusion requirement

o Drug rehabilitation requirement

o Alcohol treatment requirement

o Supervision requirement

o A residence requirement

Section 200 of the Sentencing Act 2020

an adult may be given a Community Order which may include one or more of 14 available requirements (Section 201 SA 2020),

Fines

• A fine can be a fixed penalty, as with a fixed penalty speeding fine, or it can be given subject to a statutory maximum for the offence. (Section 118 & 119 SA 2020)

• Magistrates can impose a maximum fine of £5,000 unless for serious offences and then LASPO 2013 removed the cap for serious offences, whilst there are no limits at the Crown Court.

• Compensation orders can also be imposed. This is paid to the victim and is designed to repay, for example, damage caused to property. (Section 120 SA 2020)

Section 118 & 119 SA 2020

A fine can be a fixed penalty, as with a fixed penalty speeding fine, or it can be given subject to a statutory maximum for the offence.

Section 120 SA 2020

Compensation orders can also be imposed. This is paid to the victim and is designed to repay, for example, damage caused to property.

Discharge

There are two types of discharges: absolute and conditional.

• An absolute discharge - Section 79 of the Sentencing Act 2020 involves the Court taking no further action but the discharge does form part of a criminal record. The fear of going to court is enough under the circumstances.

• Conditional discharge - Section 80 of the Sentencing Act 2020 means that the offender is released on condition that they do not offend again within a specified period. This can be from 6 months to 2 years. If an offence is committed within this period, then the Court will look again at the old offence as well as the new one in deciding what sentence to impose.

A discharge can be combined with an order for disqualification, payment of compensation or court costs

Section 79 of the Sentencing Act 2020

An absolute discharge involves the Court taking no further action but the discharge does form part of a criminal record. The fear of going to court is enough under the circumstances

Section 80 of the Sentencing Act 2020

Conditional discharge means that the offender is released on condition that they do not offend again within a specified period. This can be from 6 months to 2 years. If an offence is committed within this period, then the Court will look again at the old offence as well as the new one in deciding what sentence to impose.