Sentencing

12 Sentencing

After reading this chapter you should be able to:

• Understand the aims of sentencing.

• Have outline knowledge of the powers of criminal courts.

• Have outline knowledge of the types of sentence that can be given to adult offenders.

• Understand the factors courts take into consideration when sentencing an offender.

12.1 Aims of Sentencing

When judges or magistrates must pass a sentence, they consider not only the available sentences but also the objectives of the punishment imposed. Section 142 of the Criminal Justice Act 2003 sets forth the purposes of sentencing for individuals aged 18 and over, stating the court must regard:

• The punishment of offenders.

• The reduction of crime (including through deterrence).

• The reform and rehabilitation of offenders.

• The protection of the public.

• The making of reparation by offenders to individuals affected by their offences.

12.1.1 Retribution/Punishment

• Retribution is based on the principle that the offender deserves punishment for their actions.

• This aim does not intend to reduce crime or alter future behavior; it focuses solely on the offense committed.

• Judges are concerned solely with ensuring that the punishment is proportionate to the offense.

• The phrase 'an eye for an eye' exemplifies the retributive theory, particularly in justifying severe penalties like the death penalty for murder.

• Tariff sentences are sanctioned by the Sentencing Council, setting minimum sentencing guidelines that judges must observe, avoiding sentences lower than the established minimum.

  • Step One: Determine the offense category through a guideline table identifying levels of harm and culpability (Categories 1, 2, and 3).

  • Step Two: Establish a starting point and category range for sentencing based on the category assigned.

12.1.2 Deterrence

• Deterrence can be either:

  • Individual Deterrence: Intended to prevent the offender from re-offending through fear of punishment.

  • General Deterrence: Aimed at deterring potential offenders by showcasing punishments for others.

• Both types seek to reduce future crime levels, although statistics indicate a high re-offending rate (e.g., 55% of adult prisoners re-offend within two years of release).

• Example: Offenders involved in the 2011 riots received harsher sentences for minor thefts to deter future similar offenses, highlighting a tension between retribution and generalized deterrence.

12.1.3 Reform/Rehabilitation

• Aims to reform the offender’s behavior, enabling their reintegration into society to reduce future offenses.

• The court employs pre-sentence reports from the probation service to gather background information pertinent to the offender’s rehabilitation prospects.

• Offenders are often given community orders that include different rehabilitative requirements.

12.1.4 Protection of the Public

• Protecting the public from dangerous offenders may lead to life imprisonment for serious crimes like murder.

• The Criminal Justice Act 2003 mandates that if a court perceives a significant future risk of serious harm to the public, incarceration must be used to safeguard society.

• Lesser offenses warrant alternative protective measures such as driving bans or exclusion orders aimed at preventing specific crimes.

12.1.5 Reparation

• Reparation involves compensating victims, either through financial restitution or the return of stolen property.

• Courts must consider compensation for victims alongside other penalties.

• The concept extends to societal reparation, often through community service or unpaid work mandates.

12.1.6 Denunciation

• Denunciation involves conveying societal disapproval of criminal activities. Sentencing serves to inform both offenders and the public that certain behaviors are condemned by the justice system.

• It reinforces societal moral standards regarding acceptable conduct, as illustrated by changing perceptions of behaviors like drink-driving through severe sentencing measures.

12.1.7 Summary of Aims of Sentencing

12.2 Powers of the Criminal Courts

12.2.1 Custodial Sentences

• The Crown Court can impose custodial sentences of any length, adhering to the maximum prescribed for specific offenses (e.g., 5 years for actual bodily harm; life imprisonment for serious crimes).

• Magistrates' Courts are limited to a maximum of six months for one offense or 12 months for two offenses.

12.2.2 Fines

• The Crown Court holds unlimited power regarding fines, typically seen with severe breaches of health and safety laws.

• Magistrates Courts categorize summary offences into five levels

  • Level 1: Maximum £200

  • Level 2: Maximum £500

  • Level 3: Maximum £1,000

  • Level 4: Maximum £2,500

  • Level 5: Unlimited fines

12.2.3 Other Powers

• Additional sentencing powers include:

  • Conditional discharge

  • Compensation orders

  • Driving disqualification

12.3 Sentences Available for Adults

12.3.1 Custodial Sentences

• The most severe form of punishment, custodial sentences range from weeks to life. Types include:

  • Mandatory Life Sentences: For murder, life imprisonment is the only punishment.

  • Discretionary Life Sentences: For certain serious crimes, judges can opt for life or less severe sentences.

  • Fixed-term Sentences: Depend on crime severity and offender’s history, usually set for specified terms. Offenders are typically released after serving half the sentence.

12.3.2 Community Orders

• Established by the Criminal Justice Act 2003, community orders allow courts to tailor requirements suited to rehabilitate and restrict offenders, applicable to those aged 16 and over.

• Requirements include:

  • Unpaid Work Requirement: 40-300 hours of community service.

  • Curfew Requirement: Restricted residence for 2-16 hours daily, monitored by electronic tags.

  • Alcohol and Drug Rehabilitation: Programs addressing substance abuse.

  • Supervision Requirement: Oversight by probation services.

  • Prohibited Activities/Exclusion requirements: Prevent offenders from engaging in certain activities/areas.

12.3.3 Fines

• Predominantly used to conclude cases in Magistrates' Courts, but a minimal percentage in Crown Court cases.

12.3.4 Discharges

• Can be:

  • Conditional Discharge: Release conditioned on not re-offending for a period (up to 3 years).

  • Absolute Discharge: No penalty imposed, typically for minor infractions where guilt exists but moral blame is absent.

12.3.5 Other Powers of the Court

• Courts may impose:

  • Driving disqualifications for specified durations.

  • Compensation orders for victims.

  • Forfeiture orders for property.

12.4 Factors in Sentencing

Factors considered in sentencing include:

• Nature of the offense.

• Applicability of sentencing guidelines.

• Background and history of the offender.

12.4.1 Aggravating Factors

• Seriousness is evaluated based on the offender's culpability and the harm potentially caused, as per Section 143(1) of the Criminal Justice Act 2003.

• Examples include:

  • Previous convictions relevant to the current offense.

  • Offense committed while on bail.

  • Incidents involving hostility based on race/religion.

  • Vulnerable victim scenarios (e.g., child).

12.4.2 Mitigating Factors

• Factors allowing more lenient sentences include:

  • Mental or physical illnesses.

  • Absence of prior convictions.

  • Demonstrated remorse.

12.4.3 Background of the Offender

• Previous convictions play a crucial role in determining sentence severity. Defendants with similar past offenses likely face harsher sentences than those with clean backgrounds.

Summary

• Aims of sentencing include punishment, crime reduction, rehabilitation, public protection, reparation, and denunciation.

• Common sentences for adult offenders are custodial sentences, community orders, fines, and discharges. Other powers may include driving disqualifications and compensation orders. Factors affecting sentencing include aggravating and mitigating circumstances along with offender background and additional reports.