A Brief Guide to Sentencing

Once a defendant is convicted the court will decide how to sentence them.

The subject of sentencing often divides the court of public opinion. It would appear that most members of the public consider the primary purpose of sentencing to be the punishment of the offender - "lock them up and throw away the key" is often the cry. There is often criticism if the punitive element of the sentence seems too lenient. As far as the court is concerned, the punishment of the offender is only one of the aims of sentencing. The other aims of sentencing are to:

• Reduce crime - by preventing the offender from committing more crime and deterring others from committing similar offences;
• Reform and rehabilitate offenders - changing an offender's behaviour to prevent future crime. This could be by requiring them to have treatment for drug addiction or alcohol abuse;
• Protect the public - from the offender and from the risk of more crimes being committed by them. This could be by putting them in prison, restricting their activities or supervision by probation;
• Make the offender give something back - for example, by the payment of compensation or through restorative justice. Restorative justice gives victims the chance to tell offenders about the impact of their crime and get an apology.

Having previously described the types of sentence available to the court, in this article we provide a brief overview of the sentencing process. Sentencing takes place by a structured decision-making process. It is not, as some critics would have you believe, determined by the direction of the wind on any particular day.

Sentencing is a very broad subject, so we cannot possibly cover every single angle. That said, we hope to cover the most pertinent points.

Maximum penalties in law:

Every offence has a maximum penalty in law, which the court cannot exceed when sentencing.

The maximum penalty for drink driving, for example, is an unlimited fine and/or 6 months' imprisonment. It wouldn't matter how many times over the drink drive limit the offender was, they cannot be dealt with more severely than that.

The maximum penalty for speeding other than on a motorway is a fine not exceeding level 3 on the standard scale (currently £1,000). It might seem unfair, but even a professional footballer earning £50,000 a week could not be fined more than the statutory maximum for the offence. The maximum penalty for speeding on a motorway is a fine not exceeding level 4 on the standard scale (currently £2,500).

Remember too that the Magistrates' Court cannot impose a custodial sentence of more than 6 months' imprisonment (for a single summary or either way offence) or 12 months' imprisonment (for a combination of two or more either way offences).

Sentencing Guidelines:

The Sentencing Council produces guidelines covering the sentencing of common offences in both the Magistrates' and Crown Courts. The rationale behind the guidelines is that an offender being sentenced in Newcastle should receive (roughly) the same sentence as one committing an identical offence in Newport or Newquay.

Generally speaking, unless there are very exceptional circumstances, the Magistrates/District Judge should sentence within the guidelines. Magistrates should not deviate from the guidelines unless they have discussed and confirmed their decision with the legal advisor. Clearly a District Judge, as a professional lawyer in their own right, may have more confidence to sentence outside the guidelines. Even so, any deviation from the guidelines needs to be explained and justified in open court.

If there are no guidelines for the offence, the court can impose any sentence up to the maximum penalty in law and within its powers. In practice the court will be mindful of any similar cases it has sentenced in the past.

Using the Sentencing Guidelines:

The court listens intently to the circumstances of the offence and uses the relevant guideline to determine the level of harm caused by the offence (e.g. high, medium or low harm) and culpability of the offender (e.g. high, medium or low culpability). The guidelines include common examples of what different levels of harm and culpability may look like.

The level of harm and culpability are considered together to arrive at a starting point for sentencing.

If there are aggravating factors to the offence, then the sentence imposed is pitched higher than the starting point. If there are mitigating factors to the offence, then the sentence imposed is pitched lower than the starting point.

In most cases the offence will have both aggravating and mitigating factors, which may cancel each other out and result in an overall sentence very similar to the starting point.

The guidelines usually include examples of aggravating and mitigating factors for each offence. There is a list of common aggravating and mitigating factors on the Sentencing Council website.

Having arrived at an overall sentence any reduction is then applied. Ancillary orders might also be applied - e.g. driving disqualification, restraining order, forfeiture and destruction of drugs etc.

Reduction in sentence for a guilty plea:

It saves everyone a lot of time, expense and inconvenience if an offender admits their guilt from the outset. For that reason a reduction in sentence is applied to an offender who pleads guilty early. The earlier they plead guilty, the bigger the reduction in sentence.

If an offender admits their guilt at the earliest opportunity then they are entitled to a reduction of one-third in the punitive element of their overall sentence. If an offender subsequently admits their guilt then they are entitled to a reduction of between one-quarter and one-tenth in the punitive element of their overall sentence.

Arriving at the final sentence:

The final sentence is the overall sentence as determined from the guidelines, minus any reduction for an early guilty plea.

Pronouncement of the final sentence:

The Presiding Justice/District Judge should clearly explain the factors they have taken into account when arriving at the final sentence. They should also make clear any reduction in sentence due to a guilty plea.

Further reading:

Criminal Procedure and Sentencing, by Peter Hungerford-Welch.