Criminal Courts
Sentencing
The Criminal Courts: Procedure and
Sentencing
Sentencing
© The Law Bank
1
Criminal Courts
Sentencing
Objectives
• Describe the aims of sentencing
• Describe the different sentences available to a
court in sentencing an adult offender
• Explain what is meant by aggravating and
mitigating factors
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Criminal Courts
Sentencing
Aims of sentencing
• Once D found guilty the court must decide on
sentence
• Requirement of consistency
• Consistency leads to public confidence
• Range of sentences available and dependant on
type, seriousness and circumstances of crime
• Guidelines and sentences are decided upon with
a number of traditional theories in mind
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Criminal Courts
Sentencing
Sentencing theories
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Retribution
Deterrence
Prevention
Rehabilitation
Incapacitation
Reparation
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Criminal Courts
Sentencing
Criminal Justice Act 2003 s.142
• The punishment of offenders
• The reduction of crime (including its reduction by
deterrence)
• The reform and rehabilitation of offenders
• The protection of the public
• The making of reparation by offenders to
persons affected by their offences
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Criminal Courts
Sentencing
Retribution
• Retributive theories argue that crime deserves to be
met by punishment.
• They attract criticism from liberals who see in them a
relic of barbarism having no place in a civilised
society, but they still meet with wide public
acceptance and are central to the present
government's penal policies.
• A discretionary life sentence, for example, has a
core of "deterrence and retribution" before which a
prisoner may not be released even if he is no longer
a danger to society.
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Criminal Courts
Sentencing
Retribution
• "The Old Testament concept of 'an eye for an eye' no longer
plays any part in our criminal law, but there is another aspect
of retribution that is frequently overlooked. Society, through
the courts, must show its abhorrence of particular types of
crime, and the only way the courts can do this is through the
sentences they pass. They do not have to reflect public
opinion, but they cannot disregard it: perhaps their duty is to
lead it." (Lawton LJ in R v Sargeant)
• One aspect of retribution is therefore that sentencing serves
as a denunciation of the crime, helping reinforce society's
collective disapproval of unacceptable behaviour and
providing reassurance that the system does work.
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Criminal Courts
Sentencing
Deterrence
• Individual deterrence
• General deterrence – strict liability helps here
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Criminal Courts
Sentencing
Prevention of crime
• Protects public
• Prisoners cannot re-offend in prison
• Argument – by keeping prisoners in prison when
they come out employers will not employ them
so they return to crime
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Criminal Courts
Sentencing
Rehabilitation
• Helps to overcome problems offender might
have
• Avoid re-offending
• Curing the offender
• Provision of skills
• Anger management, driver training, education
• Fixed penalty v maximum set by law v minimum
sentences
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Criminal Courts
Sentencing
Types of sentence
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Custodial
Community
Financial
Discharge
Other
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Criminal Courts
Sentencing
Custodial
• A custodial penalty - imprisonment up to a certain maximum
(which may be life) - is possible for the most serious offences:
where no maximum is specified for a statutory offence, it is
taken to be two years.
• Under s.152 of the Criminal Justice Act 2003 the court "must
not pass a custodial sentence unless it is of the opinion that
the offence ... was so serious that neither a fine alone nor a
community sentence can be justified for the offence", but a
custodial sentence can also be passed if the defendant
refuses to cooperate with a community penalty. Section 225 of
the Act requires a court dealing with a serious offender to
pass an (indeterminate) sentence of "imprisonment for public
protection" if the offender poses a significant risk to members
of the public of serious harm.
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Criminal Courts
Sentencing
Custodial
• First offenders are not normally imprisoned at all except
in serious cases, but the use of imprisonment has been
increasing. England and Wales had 142 people out of
every 100 000 behind bars in early 2005, and the latest
figure (June 2007) is around 150 - this is among the
highest rates in the EU, though less than a quarter of the
rate in the USA.
• Under s.153 of the 2003 Act, any custodial sentence
(other than one for which the minimum is fixed by law)
must be for the shortest term that in the opinion of the
court is commensurate with the seriousness of the
offence. This is consistent with a general policy of
passing "minimum appropriate sentences".
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Criminal Courts
Sentencing
Community
• A community sentence may be imposed if the
offence is sufficiently serious, and may take any
of several forms.
• The offender may be given a Community
Rehabilitation Order (formerly called probation)
for between six months and three years, often
with conditions as to place of residence,
participation or non-participation in certain
activities, attendance at a probation centre,
and/or treatment for drug or alcohol dependency.
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Criminal Courts
Sentencing
Community
• He may be given a Punishment Order requiring
him to do up to 240 hours' unpaid work for the
community.
• These two may be combined with one another in a
Community Rehabilitation and Punishment Order,
but not with any other penalty.
• In areas where adequate monitoring arrangements
are in place, a curfew order may be made
restricting his movements for between two and
twelve hours per day (but avoiding any clash with
work, education or religious commitments) for a
period of up to six months.
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Criminal Courts
Sentencing
Financial Sentences
• A financial penalty - a fine up to a certain limit may be imposed for various statutory offences if
they are serious enough, and unlimited fines for
others, though any fine imposed must not be
excessive compared with the offender's means.
• Fines are imposed in fact in about three-quarters of
all non-motoring cases tried summarily (and in 90
per cent of motoring cases), and so are by far the
commonest penalty. Even indictable offences lead to
a fine 30 per cent of the time. Time to pay (up to a
year) is normally allowed if the offender requests it.
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Criminal Courts
Sentencing
Discharge
• An absolute discharge, or a conditional
discharge for up to three years, may be granted
if the court thinks punishment unnecessary.
• This does not count as a conviction for most
purposes, unless the defendant wishes to
appeal against it.
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Criminal Courts
Sentencing
How are sentences selected?
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Previous convictions
Pre-sentence report for more serious offences
Prepared by probation service
Officer from service will interview D
Whilst this is going on D remanded or bailed
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Why did D commit offence
Attitude to offence
Attitude to victims
Other factors affecting blameworthiness
Risk of harm and re-offending
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Criminal Courts
Sentencing
Aggravating Factors
• Make offence more serious
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Previous convictions for similar offences
Offence committed whilst on bail
The involvement of racial or religious hostility
Hostility on the grounds of sexual orientation or disability
Vulnerable victim
Gang attacks
Abuse of a position of trust
Use of a weapon or repeated attack
Possibly if under influence of drink or drugs
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Criminal Courts
Sentencing
Mitigating Factors
• Pleaded on behalf of defendant and make offence
less serious
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First offence D has committed
D very young or old
D is a vulnerable offender easily influenced
He has expressed remorse and perhaps made an offer to
compensate
– Difficult home circumstances
– Guilty plea also mitigates (reduction of a third for a guilty
plea at first opportunity and a tenth if it is when the trial
starts)
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Criminal Courts
Sentencing
Objectives
• Describe the aims of sentencing
• Describe the different sentences available to a
court in sentencing an adult offender
• Explain what is meant by aggravating and
mitigating factors
© The Law Bank
21