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Published: Wed, 07 Mar 2018

Sentencing Lecture

When deciding the type of sentence and amount, magistrates and judges (the

court) will consider a number of factors. Note that the relevant law has now

been consolidated in the Powers of Criminal Courts (Sentencing) Act 2000.

1. THE SERIOUSNESS OF THE OFFENCE

The court will make an initial assessment of the seriousness of the offence.

If the defendant pleaded guilty, the prosecutor will outline the facts of the

case to the court. If the defendant contested the charge, ie, pleaded not

guilty, then the magistrates or judge would have noted the facts during the

trial. When imposing a community sentence or custodial sentence:

The court must take into account all such information about the

circumstances of the offence(s) including any aggravating or mitigating

factors as is available to it: ss36 and 87(4).

If the offence was racially aggravated, the court shall treat that fact as an

aggravating factor (that is to say, a factor that increases the seriousness of

the offence): s153.

2. THE DEFENDANT’S RECORD

The magistrates or judge will then consider the defendant’s previous

convictions, if any. This information will have been recorded in a police

antecedent statement. In addition, the PCCSA 2000 provides that in considering

the seriousness of any offence:

The court may take into account any previous convictions of the

offender or any failure of his to respond to previous sentences: s151(1).

The court must treat the fact that an offence was committed whilst on

bail as an aggravating factor: s151(2).

Minimum sentences may now be imposed in certain situations:

Where a person is convicted of a second serious offence, the court

shall impose a life sentence unless there are exceptional circumstances

relating to either the offences or to the offender which justify its not

doing so (serious offences are murder, attempted murder, soliciting murder,

manslaughter, wounding/gbh with intent, rape, attempted rape, intercourse

with a girl under 13, firearm offences and robbery with a firearm): s109.

Where a person is convicted of a third Class A drug trafficking

offence, the court shall impose a custodial sentence of at least seven years

except where there are specific circumstances relating to the offences or

offender and would make the sentence unjust in all the circumstances: s110.

Where a person of the age of 18 or over is convicted of a third

domestic burglary, the court shall impose a custodial sentence of at least

three years except where there are specific circumstances relating to the

offences or offender and would make the custodial sentence unjust in all the

circumstances: s111.

An appeal against such a minimum sentence can be made if a previous

conviction is set aside: s112.

3. PLEA IN MITIGATION

The defendant’s lawyer (or even the defendant personally) will make a plea in

mitigation. This is an opportunity to explain to the court why the offence was

committed, the defendant’s personal circumstances and that the defendant feels

remorse. The PCCSA 2000 provides that:

Nothing shall prevent a court from mitigating an offender’s sentence

by taking into account such matters as, in the opinion of the court, are

relevant in mitigation of sentence: s158.

4. REPORTS

If the defendant is to be imprisoned or a community sentence passed, the

court must obtain a Pre-Sentence Report unless it is of the opinion that it is

unnecessary (ss36 and 81). The purpose of a PSR is to provide information to the

court about the offender and the offences so that the court has sufficient

relevant information to enable it to decide a suitable sentence. It will be

prepared by a probation officer after an interview with the defendant and will

contain:

(a) an assessment of the offending behaviour;

(b) an assessment of the risk to the public; and

(c) a clear and realistic indication of the action which can be taken by the

court to reduce re-offending.

For further details see s81.

It may also be necessary to obtain a medical report on the defendant’s

physical or mental health. For mentally disordered offenders see s82.

5. SENTENCE

This is a two-stage process.

(a) The court must decide which type of sentence to pass: (i) a custodial

sentence, (ii) a community sentence, (iii) a fine, or (iv) a discharge. Other

sentences may also be available depending on the type of offence committed or

the age of the defendant. Some guidance has been provided on deciding the type

of sentence by the PCCSA 2000:

A court may not pass a custodial sentence unless the offence(s) was so

serious that only such a sentence can be justified; or if a violent or

sexual offence, that only custody would protect the public from serious harm

from him: s79(2).

A court may not pass a community sentence unless the offence(s) was

serious enough to warrant such a sentence; and it is suitable for the

offender: s35.

(b) The court must then decide the tariff, ie how much?

The Magistrates’ Court Sentencing Guidelines give starting points for

offences which magistrates deal with regularly in adult courts. They list the

kind of aggravating and mitigating factors which might make either a more or

less severe sentence appropriate in an individual case.

The Court of Appeal provides sentencing guidelines for judges in the Crown

Court. For example, guidelines were given for the offence of rape in R v

Billam (1986) 82 Cr App R 347. The Sentencing Advisory Panel, which

began work in July 1999, provides objective advice and information to the Court

of Appeal when it formulates or revises sentencing guidelines.

Otherwise, some general guidance has been provided by statute:

A custodial sentence must be commensurate with the seriousness of the

offence(s); or if a violent or sexual offence, for such longer term as is

necessary to protect the public from serious harm from the offender: s80(2).

When imposing a custodial sentence for a sexual or violent offence, if

the court believes that if the offender were to be released on licence and

the licence period would not be adequate to prevent re-offending and

securing his rehabilitation, the court may pass an extended sentence of ten

or five years, respectively. During this “extension period” the

offender will be subject to a licence: s85.

Community sentences must be suitable for the offender and the

restrictions on liberty placed by a community sentence must be commensurate

with the seriousness of the offence(s): s35(3).

Before fixing the amount of a fine to be imposed on an offender, the

court must inquire into his financial circumstances: s128.

There may be a reduction in sentence for guilty pleas, under s152:

The court will take into account the stage in the proceedings at which

the offender indicated his intention to plead guilty and the circumstances

in which this indication was given. If as a result, the court imposes a

punishment which is less severe than it would otherwise have imposed, it

must state in open court that it has done so.


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