Sentencing

In the course of sentencing defendants, Judges and Magistrates rely on sentencing guidelines in order to determine what the appropriate sentence ought to be. You can find all available sentencing guidelines on the Sentencing Council’s website which is linked to here: About sentencing guidelines – Sentencing (sentencingcouncil.org.uk)

Part 4 Chapter 3 of the sentencing code 2020 requires that the Court considers the offender’s culpability’ in committing the offence and the harm which the offence caused, intended to cause or might foreseeably have caused.

The guidelines reflect how the Court will consider the seriousness of the offence. This will be dependent on various factors depending on the offence he is convicted of.

There are also statutory aggravating factors which the Court are obliged to treat as making an offence more serious. These are:

1. Where the defendant has previous convictions and where, having regard to the nature of the previous conviction, the court considers it reasonable to treat the previous conviction as an aggravating feature;
2. Where the offence is committed whilst on bail;
3. Where there are racial or religious motivations behind the offence;
4. Where the defendant demonstrates hostility to the victim based on their sexual orientation or disability.

The sentencing guideline on seriousness also lists other factors which a Court may consider to be aggravating or mitigating. These are reflected in each guideline, but can include that the offences are planned or premeditated, or where the offending occurs in a group.

Credit for a Guilty Plea

D will usually be entitled to ‘full credit’ if an indication of his guilt was given as soon as reasonably practicable. The Court of Appeal have emphasised that ‘as soon as reasonably practicable’ could require D to accept responsibility at the first appearance at the Magistrates’ Court: ‘All this leads us to the clear conclusion that, absent particular considerations individual to the case, the first reasonable opportunity for the defendant to indicate (not necessarily enter) his plea of guilty, if that is his mind, is not the PCMH, This court pointed towards this conclusion in R v Chaytors [2012] EWCA Crim 1810. The first reasonable opportunity is normally either at the Magistrates’ Court or immediately on arrival in the Crown Court – whether at a preliminary hearing or by way of a locally-approved system for indicating plea through his solicitors. (R v Caley 2012 EWCA) ‘

Most Defendants will receive 20 – 25 percent credit if a guilty plea is entered in the Crown Court at the Plea and Trial Preparation Hearing.

Credit will diminish in the lead up to trial. In the event that a plea is entered ‘on the door of Court’ then credit is likely to be 10%.

Custodial Sentences

Offences which carry a custodial sentence will almost always allow the Court a discretion as to whether a custodial sentence is necessary in the circumstances. Where the Court has such a discretion, it must follow the test as set out in Chapter 1 of the sentencing code. This states that the Court must NOT pass a custodial sentence unless the Court is of the opinion that the offence, or combination of offences associated with it are so serious that neither a fine alone nor a community sentence can be justified for the offence.

Magistrates can sentence defendants for 6 months for each individual offence and 12 months as a maximum when sentencing for more than one either way offence.

Under part 10 Chapter 6 of the sentencing code, the Court may decide that the defendant is a ‘dangerous’ offender, which could entail one of a number of specialist custodial offences. The specifics of these offences are not covered by the SQE syllabus.

Suspended Sentences

When an offender is given a custodial sentence of between 14 days and two years (or six months in the magistrates’ court), the judge or magistrates may choose to ‘suspend’ the sentence for up to two years. This means that the offender does not go to prison immediately but is given the chance to stay out of trouble and comply with up to 13 requirements set by the court.

These requirements could include:

• doing unpaid work
• being subject to a curfew
• undertaking a treatment programme for alcohol or drugs, and
• being subject to a rehabilitation activity requirement.

If the offender does not comply with the requirements, or is convicted of another offence during the time of their suspended sentence, they are likely to serve the original custodial term as well as the sentence they get for the new offence.

Community Sentences

Part 9 Chapter 2 of the Sentencing Code 2020 sets out the threshold that must be reached before a Court can impose a community sentence. It states:

1. A Court must not pass a community sentence on an offender unless it is of the opinion that the offence or the combination of the offences associated were serious enough to warrant such a sentence;
2. Where a court passes a community sentences which consist in part of a community order –
   1. A particular requirement or requirements forming part of the community order must be such as, in the opinion of the court, it or taken together are, the most suitable for the offender
   1. The restrictions on liberty imposed by the order must be such as in the opinion of the court are commensurate with the seriousness of the offence or the combination of the offence and one or more offences associated with it .

When making a community order the Court may make a number of requirements that the defendant must abide by. These include:

• Rehabilitation activity requirement;
• Unpaid work requirement (40-300 hours over a maximum 12 month period);
• Programme requirement;
• Prohibited activity requirement;
• Curfew requirement (2-16 hours per day over a maximum 12 month period; usually electronically monitored with tag);
• Exclusion requirement (usually electronically monitored with tag);
• Residence requirement;
• Foreign travel prohibition requirement (up to maximum of 12 months);
• Mental health treatment requirement;
• Drug rehabilitation requirement;
• Alcohol treatment requirement;
• Alcohol abstinence and monitoring requirement;
• For defendants aged 18-24, an attendance centre requirement;
• Electronic monitoring requirement (usually required for curfew orders and exclusion orders and can also be used in conjunction with most other orders).

Any one or more of these requirements may also be attached to a suspended sentence.

When a defendant fails without a reasonable excuse to carry out a community order requirement (such as failing without good reason to attend an unpaid work appointment) he/she will usually receive a warning stating that any further failure to comply within the next 12 months will mean the case will be brought back to court.  A further failure to comply will result in the defendant being returned to court for breach of the community order.   

Newton Hearings

If a defendant pleads guilty but on a factual basis which is not accepted by the prosecution then the Court may order a Newton Hearing to take place. This will mean that the Court will hear evidence as to the facts on which the defendant should be sentenced. For example, a defendant may wish to plead guilty to an offence of supplying drugs. He may however, wish to argue that he supplied less drugs than the prosecution allege. On these facts, a trial would be in appropriate because the defendant is accepting his guilt. A Newton hearing would allow both parties to present evidence as to the facts that the Judge should apply when sentencing.