How do Judges decide on sentence?
"MOST OFFENCES HAVE SENTENCING GUIDELINES PRODUCED BY THE SENTENCING COUNCIL WHICH ASSIST JUDGES AND MAGISTRATES IN CALCULATING THE CORRECT SENTENCE IN A VARIETY OF CIRCUMSTANCES"
Most offences have Sentencing Guidelines produced by the Sentencing Council which assist Judges and Magistrates in calculating the correct sentence in a variety of circumstances. This enables them to identify the correct range of sentencing options available. Courts must follow sentencing guidelines unless they conclude that it would not be in the interests of justice to do so.
Sentencing guidelines can be found on the Sentencing Council website (sentencingcouncil.org.uk).
Magistrates' Court Sentencing Guidelines
These are available on the Sentencing Council website in 2 versions:
- Interactive Online Magistrate's Court Sentencing Guidelines
- Downloadable Magistrates' Court Guidelines
Crown Court Sentencing Guidelines
Guidelines used at the Crown Court can also be found on the Sentencing Council website where you can search for the Sentencing Guidelines for specific offences.
In murder cases the approach to sentencing is not contained in sentencing guidelines as such, but rather in statutory form in sections 269 to 277 and Schedules 21 and 22 of the Criminal Justice Act 2003. (You can read more about sentencing in murder cases below.)
Step by Step - How Sentencing Guidelines Work
Judges and Magistrates go through a series of steps in order to find the appropriate sentence to fit the circumstances of a particular offence. Each step is set out in the individual guidelines.
STEP ONE - Offence Category (Harm and Culpability)
The first step is usually to decide what category the offence falls into. This involves using only those factors set out in the guideline to determine the level of blame to be attached to the defendant (i.e. his culpability) and the level of harm caused by his conduct.
Sentencing Example – ABH
"THE DEFENDANT REACTED BY HEADBUTTING HIM ONCE IN THE FACE. THE VICTIM HAD A BLOODY NOSE AND SOME BRUISING TO HIS FACE WHICH LASTED FOR SEVERAL DAYS"
To take an example, imagine a defendant is charged with the offence of Assault Occasioning Actual Bodily Harm (ABH), an offence contrary to section 47 of the Offences Against the Person Act 1861. The defendant had a trial in the Crown Court and was found guilty by a jury. In the Crown Court the maximum penalty for this offence is 5 years’ imprisonment.
The circumstances of the offence were that the defendant, a 20 year old man with no previous convictions, was in a nightclub. Another 20 year old man accidentally bumped into him on the dance floor. The defendant reacted by headbutting him once in the face. The victim had a bloody nose and some bruising to his face which lasted for several days. He attended hospital but after being examined was sent home with painkillers. His nose was not broken and he quickly made a full recovery.
When sentencing the defendant the judge will look at the Sentencing Guideline for Assault. The judge will have to decide what category the offence falls into, from Category 1 (most serious) to Category 3 (least serious). The guideline states that a Category 1 case is one involving greater harm (where serious injury must normally be present) and higher culpability; a Category 2 case is one involving greater harm (where serious injury must normally be present) and lower culpability; or lesser harm and higher culpability; and a Category 3 case is one involving lesser harm and lower culpability.
The judge will then use the list of factors in the guideline to decide where this case fits:
There is a list of 3 factors indicating greater harm. These are injury which is serious in the context of the offence (i.e. serious for this type of offence); a particularly vulnerable victim because of personal circumstances; sustained or repeated assault on the same victim.
There is a then a single factor listed indicating lesser harm: Injury which is less serious in the context of the offence.
In this case, a judge is likely to conclude that there is no factor present to indicate greater harm but there is a factor indicating lesser harm, namely the relatively minor injury.
The judge will then move on to looking at factors indicating higher and lower culpability:
Factors indicating higher culpability are: where the offence is motivated by hostility to the victim, or such hostility has been shown by the defendant, based on the victim’s sexual orientation or disability (or presumed sexual orientation or disability); a significant degree of premeditation; use of weapon or weapon equivalent (for example, shod foot, headbutting, use of acid, use of animal; intention to commit more serious harm than actually resulted from the offence; deliberately causing more harm than is necessary for commission of offence; deliberate targeting of a vulnerable victim; taking a leading role in a group or gang; where the offence is motivated by, or the defendant has demonstrated, hostility based on the victim’s age, sex, gender identity (or presumed gender identity).
"USING OUR EXAMPLE, THE JUDGE IS LIKELY TO CONSIDER THAT THE HEADBUTT IS A FACTOR INDICATING HIGHER CULPABILITY AND THERE ARE NO FACTORS PRESENT TO INDICATE LOWER CULPABILITY ... THIS PLACES THE OFFENCE WITHIN CATEGORY 2"
After this the judge will consider factors indicating lower culpability. These are: the defendant taking a subordinate role in group or gang; a greater degree of provocation than normally expected; a lack of premeditation; mental disorder or learning disability, where linked to commission of the offence; excessive self-defence.
Using our example, the judge is likely to consider that the headbutt is a factor indicating higher culpability and there are no factors present to indicate lower culpability.
The judge would therefore be likely to conclude that the offence is one involving lesser harm but higher culpability. This places the offence within Category 2.
STEP TWO – Starting Point and Sentence Range
For each category, the guidelines set out a starting point and a sentencing range.
For ABH, the starting points and sentencing ranges are as follows:
- CATEGORY 1 - Starting Point: 1 year 6 months’ custody. Sentencing range: 1 – 3 years’ custody;
- CATEGORY 2 - Starting point: 26 weeks’ custody. Sentencing range: Low level community order – 51 weeks’ custody;
- CATEGORY 3 - Starting point: Medium level community order. Sentencing Range: Band A fine – High level community order.
"HAVING DETERMINED THE CATEGORY, THE JUDGE WILL NOW HAVE A STARTING POINT FOR THE SENTENCE, BUT REMEMBER IT IS JUST A STARTING POINT BECAUSE THERE IS MORE TO CONSIDER - IN THE GUIDELINE THERE IS A LIST OF ADDITIONAL FACTORS WHICH, IF THEY EXIST IN THE CASE UNDER CONSIDERATION, CAN MOVE THE SENTENCE ABOVE OR BELOW THE STARTING POINT"
Having determined the category, the judge will now have a starting point for the sentence, but remember it is just a starting point because there is more to consider - in the guideline there is a list of additional factors which, if they exist in the case under consideration, can move the sentence above or below the starting point. These are factors increasing seriousness (which will increase the sentence from the starting point) or factors reducing seriousness or reflecting personal mitigation (which will reduce the sentence from the starting point). The factors listed are not exhaustive, so additional matters can be taken into account to increase/decrease seriousness depending on the circumstances of the case.
In the ABH sentencing guideline the factors listed are as follows:
ABH Guideline Aggravating Factors:
The factors increasing seriousness in the ABH Guideline include:
- previous convictions (taking into account their relevance to the offence and how old they are);
- if the offence was committed whilst the defendant was on bail;
- the location and time of the offence;
- any ongoing effect upon the victim;
- whether the offence was committed against those working in the public sector or providing a service to the public;
- the presence of others including relatives, especially children or a partner of the victim;
- gratuitous degradation of the victim;
- in domestic violence cases, where the victim was forced to leave his or her home;
- failure to comply with current court orders;
- where the offence was committed whilst on licence following release from a previous custodial sentence;
- an attempt to conceal or dispose of evidence;
- failure to respond to warnings or concerns expressed by others about the offender’s behaviour;
- commission of offence whilst under the influence of alcohol or drugs;
- abuse of power and/or position of trust;
- exploiting contact arrangements with a child to commit an offence;
- established evidence of community impact;
- any steps taken to prevent the victim reporting an incident, obtaining assistance and/or from assisting or supporting the prosecution;
- offences taken into consideration (TICs)
ABH Guideline Factors Reducing Seriousness or Reflecting Personal Mitigation
The factors reducing seriousness or reflecting personal mitigation (often referred to as ‘mitigating factors’) in the ABH Guideline include:
- no previous convictions or no relevant/recent convictions;
- a single blow;
- good character and/or exemplary conduct;
- determination and/or demonstration of steps taken to address addiction or offending behaviour;
- serious medical conditions requiring urgent, intensive or long-term treatment;
- isolated incident;
- age and/or lack of maturity where it affects the responsibility of the offender;
- lapse of time since the offence where this is not the fault of the offender;
- mental disorder or learning disability, where not linked to the commission of the offence;
- sole or primary carer for dependent relatives.
"AGGRAVATING AND MITIGATING FACTORS CAN MAKE A SIGNIFICANT DIFFERENCE TO THE SENTENCE"
These aggravating and mitigating factors can make a significant difference to the sentence. Using our ABH example of a Category 2 case with a starting point of 26 weeks’ custody, there are no obvious aggravating factors. There are, however, a number of mitigating factors: we know that the defendant has no previous convictions and there was a single blow. We know little about the defendant’s circumstances but the court would be made aware of these before sentence was passed. Mitigating factors would bring the sentence down from the starting point of 26 weeks’ custody and a judge could impose a community order. Even if the Judge/Magistrates took the view that a custodial sentence was required, they could suspend it and attach one or more community order requirements (such as an Unpaid Work requirement).
To impose a custodial sentence the judge would have to conclude that the custody threshold had been passed (i.e. that the offence alone or with any associated offences was so serious that neither a fine nor a community sentence is justified) and, even where it had been passed, the judge would consider whether it was possible to suspend the sentence. This is why, in our example, an immediate custodial sentence is far from inevitable. It is also worth bearing in mind that section 153(2) of the Criminal Justice Act 2003 requires that, except in certain specified categories (such as where the sentence must be for a certain minimum term) any custodial sentence must be for the shortest term that in the opinion of the court is commensurate with the seriousness of the offence (and associated offences).
The sentencing guidelines contain further steps for the judge to consider before sentence is passed. Using the ABH example these include taking into account any assistance given by the defendant to the prosecution, whether a defendant pleaded guilty (which can reduce the sentence by up to one third) and whether the defendant is a ‘dangerous offender’ (you can read more about dangerous offenders in the sections on life sentences and extended sentences). The court will also consider ancillary orders such as making the defendant pay whole or part of the prosecution costs as well as making an award of compensation.