The Custody Threshold and Advanced Criminal Sentencing

Statutory Framework of the Custody Threshold

• General Definition of the Custody Threshold (Section 230(2) Sentencing Code):     - The court is prohibited from passing a custodial sentence unless it forms the opinion that:         - (a) the offence, or         - (b) the combination of the offence and one or more offences associated with it,     - …was so serious that neither a fine alone nor a community sentence can be justified for the offence.

• Exercise of Judicial Discretion:     - Critical analysis points for academic discussion include:         - The assertion that judges and magistrates have excessive discretion when deciding to imprison, potentially leading to injustice.         - The claim that there is no general definition underlying where the "custody threshold" precisely lies.         - The evaluation of the Sentencing Council's document, Imposition of Community and Custodial Sentences: Definitive Guideline, regarding whether it provides sufficient guidance on the imposition of custodial sentences.

Sentencing Guidelines and Threshold Categories

• Principal Guidelines Duty (Section 60):     - Section 60(2): Courts have a duty to impose a sentence within the "offence range" specified in offence-specific guidelines.     - Section 60(4): If a guideline describes different seriousness categories:         - (a) The court must decide which category most resembles the case to identify the "sentencing starting point."         - (b) However, there is no separate duty to impose a sentence strictly within the "category range," provided it remains within the overall "offence range."

• General Duty to Follow Guidelines (Section 59(1)):     - Every court must follow relevant sentencing guidelines unless satisfied that it would be contrary to the interests of justice to do so.

Offence-Specific Threshold Examples

• Criminal Damage ($£5000+$):     - Maximum Sentence: $10\,years$ custody (basic offence).     - Category 1 (High Culpability/Harm): Starting point $1\,year\,6\,months$ custody; range $6\,months - 4\,years$ custody.     - Category 2 (Medium Culpability/Harm): Starting point $6\,months$ custody; range High level community order to $1\,year\,6\,months$ custody.     - Category 3 (Lower Culpability/Harm): Starting point Band B fine; range Discharge to Low level community order.

• Actual Bodily Harm (ABH):     - Category A1: Starting point $2\,years\,6\,months$ custody; range $1\,year\,6\,months - 4\,years$ custody.     - Category B2: Starting point $36\,weeks$ custody; range High level community order to $1\,year\,6\,months$ custody.     - Category C3: Starting point Medium level community order; range Band B fine to $26\,weeks$ custody.

• Affray:     - Category 1: Starting point $2\,years$ custody; range $1\,year\,6\,months - 2\,years\,9\,months$ custody.     - Category 2: Starting point High level community order; range Medium level community order to $1\,year$ custody.     - Category 3: Starting point Medium level community order; range Band C Fine to High level community order.

Purposes of Sentencing and Community Orders

• Sentencing Purposes (Section 57 Sentencing Code):     - Courts must have regard to five primary purposes:         - (a) The punishment of offenders.         - (b) The reduction of crime (including reduction by deterrence).         - (c) The reform and rehabilitation of offenders.         - (d) The protection of the public.         - (e) The making of reparation by offenders to persons affected by their offences.

• Community Orders (Section 204 & Schedule 9):     - Available as a sentencing option under Section 204, SA 2020.     - Includes a range of requirements found in Schedule 9, such as unpaid work (Community Payback) ranging from $40-300\,hrs$.     - Section 208(10): A community order must include at least one requirement imposed specifically for the purpose of punishment.

Pre-Sentence and Medical Reports

• Pre-Sentence Reports (PSR) (Section 30):     - Section 30(2): For offenders aged $18$ or over, the court must obtain and consider a PSR before forming an opinion on a custodial or community sentence unless it considers the report unnecessary.     - Utility of PSRs:         - Assessment of the offender's dangerousness and risk of harm.         - Understanding the nature and causes of the offender's behavior.         - Evaluating personal circumstances and suitability for specific requirements or sentences.     - A PSR is unnecessary if the court believes it already possesses sufficient information about the offence and the offender.

• Medical Reports for Mentally Disordered Offenders (Section 232):     - Section 232(1): Applies when an offender appears to suffer from a mental disorder and the court is passing a discretionary custodial sentence.     - Section 232(2): The court must obtain and consider a medical report unless deemed unnecessary in the circumstances.     - Section 232(3): The court must consider information relating to the mental condition (from PSRs or medical reports) and the likely effect of a custodial sentence on that condition and available treatment.     - Section 232(4): Failure to obtain a medical report does not invalidate the sentence.

Victims and Sentencing

• Victim Personal Statements (VPS):     - Guided by R v Perkins [2013] and Criminal Practice Direction VII.     - Procedural Rules for VPS:         - The decision to make a statement is entirely for the victim.         - Opinions regarding the specific type or length of sentence are irrelevant and should not be included.         - To be admissible, evidence of the offence's effects must follow Section 9 of the Criminal Justice Act 1967 (signed, declared true).         - Must be served on the defence in a timely manner; the defence can object to its inclusion.     - Judicial Consideration: Courts must take the VPS into account to understand the impact on the victim but should pay no attention to any opinions regarding the sentence length included within the statement.

Mentally Disordered Offenders and Mitigation

• Mitigation and Threshold Overlap (Section 77):     - Nothing prevents a court from mitigating a sentence based on any matters it deems relevant.     - Section 77(2): Even if an offence is serious enough to justify the custody threshold under Section 230(2), the court may still pass a community sentence after taking mitigating factors into account.

• Discretion for Mental Disorders (Section 78):     - Section 78(1) clarifies that statutory opinion provisions do not force a court to pass a custodial sentence on an offender suffering from a mental disorder.     - Courts retain the power to deal with such offenders in the "manner it considers to be most appropriate in all the circumstances" (e.g., under the Mental Health Act 1983).

• Sentencing Council Guidelines (Effective Oct 1, 2020):     - Focuses on offenders with mental disorders, developmental disorders, or neurological impairments.     - Paragraph 22: If an offender is on the "cusp of custody," impairment/disorder may make a custodial sentence disproportionate. A rehabilitative approach may be preferred for better public protection and crime reduction.

Exceptions: Mandatory Minimum Sentences

• Exclusion from the Custody Threshold (Section 230(3)):     - The standard Section 230(2) threshold test does not apply to offences where a mandatory sentence requirement applies (Section 399).     - Section 57(3) similarly notes that standard sentencing purposes do not apply to mandatory sentences or specific Mental Health Act orders.

• Length of Sentences (Section 231):     - Discretionary sentences must be for the shortest term commensurate with seriousness, but this is subject to minimum sentence provisions.

• Specific Mandatory Categories:     - Class A Drug Trafficking (Section 313): Third offence requires at least $7\,years$ for adults aged $21+$ unless exceptional circumstances justify not doing so.     - Domestic Burglary (Section 314): Third conviction requires at least $3\,years$ unless exceptional circumstances exist.     - Threatening with Weapons (Section 312): "One strike and you're out" policy for threatening with an offensive weapon or blade in public. Minimum of $6\,months$ for adults $21+$ unless exceptional circumstances are found.     - Possession of Weapons (Section 315): Applies to simple possession of blades/weapons if the defendant has a previous relevant conviction. Mandatory $6\,months$ immediate custody unless exceptional circumstances relate to the offence, previous offence, or offender.