HOW SENTENCING WORKS
YOUR GUIDE TO SENTENCING IN THE MAGISTRATES' COURT AND CROWN COURT
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Sentencing IN THE CRIMINAL COURTS
The question, ‘Will I go to prison?’ is at the forefront of many people’s minds when they are faced with a criminal charge. Understandably it is a question many criminal barristers will be asked by their clients.
This guide will help you understand how sentencing works and how judges decide what sentence to pass for particular offences in a variety of different circumstances.
If you are looking for information on a particular aspect of sentencing, just click on what interests you underneath ‘More About Sentencing …’
Otherwise read on for an introduction to the sentencing process.
Unless otherwise specified, what follows relates to adult defendants (18s and over). You can read more here about youth sentencing (under 18s).
Avoiding Misconceptions ABOUT SENTENCING FOR CRIMINAL OFFENCES
Before we start, let’s get some fundamental matters out of the way which are often the cause of some misunderstanding:
1. A sentence can only be passed once the person accused of the offence (the defendant) has been found guilty of it; this can happen either by pleading guilty at court (or by post in some less serious cases), or by being found guilty following a trial. Until you have been found guilty you cannot be sentenced and if you are found not guilty (acquitted) following a trial you will face no penalty at all because the case against you will not have been proved. Occasionally some orders can be made against acquitted defendants (such as bind overs and restraining orders) but these do not include punishments such as custodial sentences or community orders.
2. Some offences do not carry imprisonment as a potential sentence at all. Many offences of a relatively minor nature are not punishable with imprisonment. These include many motoring offences. For example, the maximum penalty for the offence of driving without due care and attention is driving licence endorsement of 3-9 penalty points, a fine and discretionary disqualification from driving, but not imprisonment. Similarly, the offence of speeding is non-imprisonable.
3. Even where an offence does carry a potential sentence of imprisonment, this does not mean that prison will automatically follow; it means that imprisonment is an option for the court. For example, the offence of theft is an imprisonable offence, but not every person convicted of theft will go to prison. Prison is reserved for situations where the offence is so serious that only a custodial sentence can be justified - this is known as the custody threshold. The court always has a range of alternative options available to it, which include fines and community orders. Custodial sentences will only be imposed for serious cases and, even then, they can sometimes be suspended.
4. It will be rare for a court ever to impose the maximum term of imprisonment that is available for a particular offence. Even when a court decides to impose a period of imprisonment, the circumstances of the offence and of the defendant are taken into account in determining what the length of that sentence should be. For most offences this involves looking at the relevant sentencing guidelines (which you can read more about in this sentencing guide).
5. Only defendants aged 21 or over can go to ‘prison’. Defendants aged 18 to 20 who receive custodial sentences are sent to a Young Offender Institution. On the rare occasion that juveniles (under 18s) receive custodial sentences they are sent to either a Young Offender Institution or more usually a Secure Children’s Home or Secure Training Centre.
What are the Purposes of Sentencing IN THE CRIMINAL COURTS?
For adults convicted of most offences, the statutory purposes of sentencing are set out in s.142 of the Criminal Justice Act 2003 as follows:
(b) the reduction of crime (including by deterrence);
(c) reform and rehabilitation;
(d) the protection of the public; and
(e) the making of reparation by offenders to persons affected by their offences.
WHAT FACTORS DOES THE COURT TAKE INTO ACCOUNT WHEN SENTENCING FOR A CRIMINAL OFFENCE?
There are 4 main factors the court will take into account when deciding what sentence to impose. These are:
1. THE OFFENCE
The offence – what is the maximum sentence for the offence the defendant faces? This includes whether the offence is imprisonable or non-imprisonable. Remember that just because an offence is imprisonable does not of itself mean that a custodial sentence will inevitably follow; the court has a range of alternative sentences available if it does not consider that custody is necessary.
2. A GUILTY PLEA
A guilty plea – did the defendant plead guilty and, if so, when? An early guilty plea can reduce a sentence by up to one-third.
3. THE CIRCUMSTANCES OF THE OFFENCE
The circumstances of the offence – the sentencing judge or magistrates must consider the level of culpability and harm. Consideration is given to the aggravating circumstances (those which make the offence more serious) and the mitigating circumstances (those which tend to make it less serious) of the particular offence?
Every case is different. Aggravating circumstances include where there has been a serious impact on the victim (including significant loss or injury), as well as conduct by the defendant (such as planning, use of a weapon, targeting a vulnerable victim or supplying drugs outside a school) which make the offence a serious one of its kind. An offence committed by a defendant who was already on bail is an aggravating factor, as is an offence involving racial or religious hostility, or hostility by reason of disability, sexual orientation or transgender identity.
Mitigating circumstances can include playing a minor role, limited loss or injury to the victim, acting on the spur-of-the-moment, unintended consequences and other conduct or circumstances which demonstrate the offence to be a less serious one of its kind.
4. THE CIRCUMSTANCES OF THE OFFENDER
The circumstances of the offender – these include the age of the defendant, whether he has any relevant previous convictions (i.e. a first-time offender or someone with a history of similar conduct) and any other personal circumstances (such as being the primary carer for children or elderly relatives, addiction or debt problems and how they are being dealt with, and the defendant’s attitude to the offence itself) which can properly be taken into account.
In a number of cases a defendant will have seen a probation officer before sentencing where the offence and the defendant’s circumstances will have been discussed between them. The probation officer will then produce a pre-sentence report (you can read more about these in this guide) for the court to assist in the sentencing process.
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