The Sentencing Academy has produced a report reviewing ethnicity and custodial sentencing trends from 2009 to 2019. Over the years, several official reports have addressed the role of race and ethnicity in sentencing decisions. The current report looked at sentencing patterns for different offender profiles with two key issues that emerged. The first was ethnic disproportionality, and the second, differential sentencing outcomes.
Disproportionality was expressed by comparing the percentage of BAME individuals appearing in the criminal justice system compared to their proportion in the general population. The data on custody rates and average custodial sentence lengths were combined to form the “expected custodial sentence” (ECS), a new measure of punitiveness. In 2019 the ECS for an indictable offence was 6.6 months for a white offender and 10.2 months for an Asian offender. The overall ECS figure does mask the fact there is variation across offence categories, the greatest divergent is with offences of violence.
Despite the Sentencing Academy research, the authors said that the knowledge of differential sentencing across ethnic groups remained imperfect, although it had improved. The preliminary conclusions were:
- BAME groups are associated with greater use of imprisonment;
- Visible minority offenders attract higher custody rates than white offenders, but the ordering of different groups varies from study to study;
- group-based differences in custody rates and custodial sentence lengths are consistently statistically significant;
- there is long-standing evidence of ethnicity-based differences using custody rates and average custodial sentence lengths;
- between 2009-2019 black offenders attracted the most punitive punishment levels;
- ethnicity-based differences emerge most consistently and strongly for drug offences;
- little is known about ethnicity-based sentencing differentials in the magistrates’ courts;
- the research studied custody rates and average custodial sentences so that no conclusions could be drawn regarding other sentencing options.
It was noted that data collection ceased in 2015 and further research priorities were set out:
- Publication of sentencing trends in the magistrates’ court was discontinued some time ago, as the majority of offenders are dealt with in that court, data needs to be obtained.
- The sentencing differentials appear higher for drug offences, but BAME defendants are over-represented for other offences too, where more research is required.
- Very little is known about variations at a local level.
- Sanctions other than custody have rarely been studied, for example, the level of fines, length and duration of suspended sentences, use and length of community orders and the use of out of court disposals.
The most important question is why certain ethnicities are linked to higher custody rates. A range of hypotheses would need to be explored, such as consideration of pre-sentence reports. There are ethnic differences in relation to the relationship between a PSR recommendation and the sentence imposed. A white offender is more likely to have the recommended sentence imposed than a BAME defendant.
The report concludes that the rates of immediate imprisonment for BAME defendants have been higher than for white offenders for many years. Both the level and the cause of the differential need to be understood before the sentencing process can be addressed so that it treats all equally. The difference in custody rates has declined more recently, but there is still a differential. The challenge is finding the cause; only then can the government, courts, and the Sentencing Council devise proper remedies to address the disparities.
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The Police, Crime, Sentencing and Courts Bill was introduced in the House of Lords in early July and awaits a second reading. The Bill is formed of thirteen parts, including provisions to:
- introduce measures for the protection of the police;
- introduce legislation for the prevention, investigation and prosecution of crime;
- make changes to the policing of protests;
- create new offences for unauthorised encampments as well as amending existing legislation;
- introduce road traffic measures;
- replace the existing out of court disposal framework;
- amend custodial and community sentences;
- amend the youth justice system;
- legislate for secure schools and children’s homes;
- update court and tribunal procedures; and
- introduce measures for managing and rehabilitating offenders.
Protection of the police
The Bill proposes-
-a new duty for a Police Covenant report to be put before Parliament each year;
-amending the offence of assaulting an emergency worker to increase the maximum penalty to 2 years (from 12 months);
-allowing Specials to join the Police Federation; and
-amending road traffic legislation so that trained police drivers are treated differently from regular drivers for the offences of dangerous driving and driving without due care and attention.
Prevention, investigation and prosecution of crime
A new legal duty would be introduced requiring certain agencies to work together to reduce serious violence and require community safety partnerships to consider this issue when formulating and implementing strategies to combat local crime and disorder.
Offensive weapon homicide reviews would be carried out by relevant agencies when the death of an adult involves the use of an offensive weapon.
The Bill would introduce a new statutory framework for the extraction of electronic information from electronic devices. This would relate to the extraction of information for certain purposes in an investigation.
Other provisions proposed under this heading relate to pre-charge bail, sexual offences, criminal damage to memorials, overseas production orders, search warrants, functions of prisoner custody officers, and account freezing in proceeds of crime cases.
One of the most controversial chapters in the Bill is in relation to proposed changes in the way that protests are policed. This includes amending:
- the Public Order Act 1986 to increase the number of circumstances in which the police can impose conditions on protests
- the Police Reform and Social Responsibility Act 2011 to expand the controlled area around Parliament where protests are banned
- getting rid of the offence of public nuisance and replacing it with one of “intentionally or recklessly causing public nuisance”.
A new offence is suggested of “residing or intending to reside on land without consent in or with a vehicle”. Existing police powers would also be amended to lower the threshold at which the powers in the 1994 Act could be used and allow the police to remove unauthorised encampments.
Road Traffic measures
The Bill sets out several measures, including:
- increase the maximum penalty to life for causing death by dangerous driving, careless driving or while under the influence of drink or drugs;
- introducing a new offence of causing serious injury by careless or inconsiderate driving;
- creating a statutory basis for a charging regime for courses that are offered as an alternative to prosecution for certain road traffic offences;
- providing a statutory basis to charge for vehicle removal, storage and disposal fees where the police have removed it;
- remove the need for a physical licence to be produced when a fixed penalty notice is issued, or at court;
- strengthening the rules about surrendering a licence when disqualified.
Out of court disposals
All out of court disposals would be replaced with a choice of two, diversionary cautions or community cautions (with a provision that conditions could be attached to the cautions).
The provisions of this chapter would:
- introduce a statutory minimum to be introduced for certain specified offences;
- introduce a starting point of a whole life order for premeditated offences of child murder;
- allow judges to impose whole life orders on 18 to 20-year-olds in exceptionally serious circumstances;
- make changes to the minimum review process;
- change how minimum terms are calculated;
- require certain prisoners to serve two thirds o their sentence rather than half (specified violence and sexual offence);
- refer certain prisoners to the Parole Board for release rather than release automatically (if the prisoner is deemed a terrorist threat or a significant threat to the public);
- give the secretary of state a power to change the release test where prisoners are recalled for a fixed term; and
- change the law so that the length of driving disqualifications are extended in line with the new release points for custodial sentences.
The Bill would:
- create a power to allow for attendance at appointments to be required at any stage of a community sentence;
- increase the allowable number of daily curfew hours, and the total length of a curfew;
- allow probation to amend the start or end time of a curfew, or the residence of the offender without prior approval from court;
- provide for pilots of problem-solving courts to take place; and
- create a new duty for probation to consult local and regional stakeholders on the design and delivery of unpaid work.
- amending the test for a custodial remand so that it is more difficult to remand a child;
- introducing a statutory duty for courts to consider the welfare and best interests of a child when making a decision on a remand;
- changing detention and training orders to remove fixed lengths, provide that time on remand or subject to certain bail conditions is time served, ensure an offender benefits from the same amount of early release for all sentences served consecutively;
- changing youth rehabilitation orders to include a standalone tracking requirement, increasing curfew hours and raising the age limit for the education requirement;
- allowing pilots of a tracking requirement as a standalone order and to monitor offenders on high intensity orders; and
- abolish reparation orders.
Other changes put forward in the Bill include the introduction of serious violence reduction orders, changes to the management of sex offenders and terrorist offenders, and permitting the presence of a BSL interpreter in the jury room.
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A new draft sentencing guideline for the offence of importing prohibited or restricted firearms has been published for consultation. There are no current guidelines in respect of these offences, although there are eight current guidelines for offences under the Firearms Act 1968.
Sentencing guidelines set the range for sentences and are intended to reflect current sentencing practices for the offences. They must be followed unless a judge or magistrate is satisfied that it would not be in the interest of justice to do so. They aim to provide a consistent approach to sentencing with proportionate sentences being imposed.
The guideline covers two offences under the Customs and Excise Management Act 1979 – under section 50, the importation of goods and under section 170, the fraudulent evasion of prohibition/restriction. The types of weapons referred to are those under sections 1 and 5(1) and 5(1A) of the Firearms Act 1968.
The new guideline will be for adult offenders and proposes a sentence of up to 28 years imprisonment for the most serious cases. Such cases would be the large-scale importation of rapid-firing weapons for use in crime. Up to seven years imprisonment is suggested for offences involving less dangerous firearms. Offences under the Customs and Excise Management Act 1979 are not subject to the minimum term provisions which relate to certain Firearms Act offences. The firearms and ammunition that would be subject to the minimum five-year term if prosecuted as possession, have a statutory minimum sentence of life instead of seven years for all other firearms and ammunition.
Levels of culpability
The guideline for the offences initially sets out three levels of culpability based on the type of weapon involved. The highest culpability is Type 1, a weapon capable of killing two or more people simultaneously or in rapid succession. The lowest is type 3, which relates to weapons not designed to be lethal or a small quantity of ammunition. There are then three categories of other culpability factors detailed as high, medium and low. Once the type of weapon and level of culpability is decided, the sentencer moves to the issue of harm within three categories.
There are then two tables, one for use with the statutory maximum life sentence offence, the other for the maximum seven years offence. Using the type of weapon and levels of culpability and harm, a starting point and sentencing range is produced. As usual with guidelines, the aggravating and mitigating factors are then used to produce the appropriate sentence within the range set out in the tables.
This guideline is unusual due to the two-stage model for assessing culpability. The Council states this has been put forward as the type of weapon is a crucial factor in determining the seriousness of the offence and should be considered separately from the other culpability factors. The CPS will need to update their charging policy to ensure that the charge or indictment specifies the type of weapon or ammunition concerned to assist the court.
The draft guidelines are a result of the National Crime Agency and the CPS urging the Council to develop them, following their initial decision not to.
What do they want to know?
Views are sought on:
- the principal factors that make the offences included within the draft guideline more or less serious;
- the additional factors that should influence sentence;
- the approach taken to structuring the draft guideline;
- the sentences that should be passed for firearms importation offences.
As part of the process, the Council intends to hold discussions with interested parties and sentencers to gauge whether the proposed guidelines would work as anticipated. A statistical bulletin and resource assessment has also been published. Following the consultation, the final guidelines will be published.
The guidelines are open for consultation until 8th September 2021.
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The Sentencing Council has announced a consultation on the revision of sentencing guidelines for domestic, non-domestic and aggravated burglary offences.
The existing burglary definitive guideline was the second to be developed by the Sentencing Council and came into force under criminal law in 2012. The proposed guidelines have been developed following an evaluation of the existing ones.
The evaluation suggested that the severity of sentencing had increased for domestic burglary and aggravated burglary since introducing the guideline. There was also an increase in sentencing severity for non-domestic burglary, but it was not clear whether this was a result of the guideline or not. As a result of further evaluation, it was found the guideline had contributed to unanticipated increases in sentencing. The Sentencing Council intended to review the existing guidelines due to the evaluations but has been unable to do so until now.
Why is it being reviewed?
The Sentencing Council says that their methods for estimating the resource impact of a guideline are now more well developed. It was previously limited in its ability to assess how the offences would be categorised and sentenced under the guideline.
In developing the guideline, the Council considered data from the Crown Court Sentencing Survey, transcripts of judges’ sentencing remarks, and evidence of the reasons for the increases in sentencing severity.
The Council concluded that although the aggregate impact of the impact on sentencing outcomes had not been predicted, the sentencing practice was proportionate to the seriousness of the offence. The higher sentences are therefore expected to be maintained for the more serious offences under the proposed guidelines.
In particular, the changes proposed are to introduce middle categories for both culpability and harm. The Council says that the introduction of middle categories will provide greater flexibility for judges and magistrates in deciding the appropriate sentence.
The new medium culpability category is “some degree of planning or organisation”. It will also include other cases that fall within categories A and C because factors of A and C are present but balance each other out, or the offender’s culpability falls between the factors described in A and C.
In the categories of harm, the new version in category two is “theft of/damage to property causing some degree of loss to the victim (economic, commercial or personal value), and “greater emotional impact on the victim than would normally be expected”.
The Council decided that targeting is a very common feature of these offences, so including this factor in the high category could capture too many cases in the highest level of culpability. The factor is proposed to be changed to “targeting a vulnerable victim”.
The rest of the proposed changes to both culpability and harm factors are as per the non-domestic guideline.
Considerable thought was given to the “weapon present on entry” factor in the existing guideline, noting the recent case of Sage. The point from Sage was that the presence of a weapon on entry was an essential element of the section 9(1)(a) offence, and there could be a risk of double counting. It is proposed to remove the factor from high culpability and for it to become an aggravating factor. In doing so, it would avoid the problem of double-counting and enable the court to deal more severely with an offender who used or threatened with a weapon brought to the premises and captures offences, where a burglar finds premises empty and so cannot use or threaten violence. A drop-down box will provide additional guidance on the use of the “weapon carried on premises” factor.
The harm factors are worded differently from the other two offences as the factors need to be more specific about actual physical and psychological injury.
In considering the sentence ranges, the Council was said to be mindful of the potential for an increase in sentencing severity. The concern needed to be balanced against the fact this was a serious offence carrying life imprisonment. As such, there was no mention of community orders with treatment requirements as an alternative to custody. Instead, it was decided that a link to the imposition guideline should be included.
Additionally, it is proposed to add wording around consideration of a community order with an alcohol treatment requirement for the domestic and non-domestic guidelines.
The sentencing ranges for all the burglary offences have been formulated using statistical data from the Ministry of Justice’s Court Proceedings database.
The consultation opens on 9th June and runs until 1st September 2021.
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A number of the definitive guidelines published by the Sentencing Council direct Judges and Magistrates to consider whether the victim of an offence has suffered severe psychological harm.
In some guidelines, that question has to be considered at step 1 of the sentencing process: a finding of severe psychological harm places the case into a higher category and thus increases the starting point for sentence.
In other guidelines, the issue of whether the victim has suffered psychological harm – and if so, the degree of that harm – falls to be considered at step 2 as a potential aggravating factor which justifies an increase above the guideline starting point for the relevant category of offence.
It is therefore critical that those defending criminal cases are fully versed in the law relating to this area, as it may greatly affect sentencing outcomes.
How does a Judge assess harm?
- Expert evidence is not an essential precondition of a finding that a victim has suffered severe psychological harm.
- A judge may assess that such harm has been suffered on the basis of evidence from the victim, including evidence contained in a Victim Personal Statement (VPS), and may rely on his or her observation of the victim whilst giving evidence.
- Whether a VPS provides evidence which is sufficient for a finding of severe psychological harm depends on the circumstances of the particular case and the contents of the VPS.
- A VPS must comply with the requirements of the Criminal Practice Direction and be served on the defence in sufficient time to enable them to consider its contents and decide how to address them. If late service gives rise to genuine problems for the defence, an application for an adjournment can be made.
When a sentencing guideline directs an assessment of whether the victim of an offence has suffered severe psychological harm or any other assessment of the degree of psychological harm, a judge is not thereby being called upon to make a medical judgment. The judge is, rather, making a judicial assessment of the factual impact of the offence upon the victim.
Thus, submissions to the effect that a judge who makes a finding of severe psychological harm is wrongly making an expert assessment without having the necessary expertise are misconceived.
The judge is not seeking to make a medical decision as to where the victim sits in the range of clinical assessments of psychological harm, but rather is making a factual assessment as to whether the victim has suffered psychological harm and, if so, whether it is severe.
The assessment of whether the level of psychological harm can properly be regarded as severe may be a difficult one. The judge will, of course, approach the assessment with appropriate care, in the knowledge that the level of sentence will be significantly affected by it, and will not reach such an assessment unless satisfied that it is correct.
But it is an assessment which the judge alone must make, even if there be expert evidence. It is the sort of assessment which judges are accustomed to making.
In making the assessment of whether the psychological harm in a particular case can properly be described as severe, or serious (if a different guideline is being considered), the judge will act on the basis of evidence and will be required in the usual way to give reasons for his or her decision in the sentencing remarks.
If the evidence was not such as could provide a sufficient foundation for the judge’s assessment, the point can be raised on appeal.
Save where there is an obvious inference to be drawn from the nature and circumstances of the offence, a judge should not make assumptions as to the effect of the offence on the victim.
The judge must act on evidence. But a judge will usually be able to make a proper assessment of the extent of psychological harm on the basis of factual evidence as to the actual effect of the crime on the victim. Such evidence may be given during the course of the trial, and the demeanour of the victim when giving evidence may be an important factor in the judge’s assessment.
The relevant evidence will, however, often come, and may exclusively come, from the VPS. The court is not prevented from acting on it merely because it comes from a VPS.
In assessing whether the psychological harm in a particular sexual case is severe, a judge must keep in mind that the levels of sentence which the sexual offences guideline sets out already take into account the psychological harm which is inherent in the nature of the offence.
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We ensure we keep up to date with any changes in legislation and case law so that we are always best placed to advise you properly.
This is the name of the paper presented to Parliament that proposes changes to the sentencing and release frameworks in the criminal justice system.
The paper sets out the “problems” they have identified in the system. They are automatic release, improving confidence and addressing the causes of offending.
Automatic release – the blanket use of automatic release was said to undermine confidence in the system as it results on too many serious and dangerous offenders are being released early. Following terrorist attacks in London, emergency legislation was introduced to address the issue in respect of terrorist offenders. The proposal is to now address it in terms of other types of “serious and dangerous offenders”.
Improving confidence – the paper states that confidence in non-custodial sentencing options is low and that the confidence of the judiciary and the public has to be won back. A wider range of non-custodial options are suggested for low-level offences.
Addressing the causes of offending – it is conceded that not enough has been done to tackle the causes of offending, particularly where it is driven by drug and alcohol abuse.
What are the proposals?
The government Impact Assessment lists the following to be implemented from the proposals:
Release from prison
Legislation has already been introduced so that those charged with serious and violent sexual offences who received a standard term of imprisonment of 7 years or more must serve two-thirds of their sentence. This means they will be kept in custody for longer and will be supervised on licence for the remaining one third, and subject to recall if they breach the terms of the licence or commit a further offence.
The proposal is also to make this apply to those convicted of serious and violent offences who received sentences over four years.
The offences affected will be rape, attempted murder, sexual assault by penetration, sexual activity with a child, manslaughter, wounding with intent, conspiracy to murder, sexual activity with a person with a mental disorder and abuse of children through prostitution or pornography.
Suppose a person serving a sentence for a non-terrorist offence is identified as a terrorist threat. In that case, there will be a new power to prevent their automatic release from a standard sentence. Instead, they will be referred to the Parole Board for a decision whether they can be released before serving their full sentence.
Whole life orders
For those convicted of the premeditated murder of a child, the expectation will be for a whole life order to be imposed. That is, that the person will not be eligible for release at any stage. Judges will also be given the discretion to impose such an order on offenders aged 18-20 in exceptional circumstances.
Life sentence tariffs
How a tariff is calculated will be amended so that the calculation is based on what two-thirds of the notional sentence would be, rather than half as it is now.
For those sentenced for murder, committed under the age of 18, the starting point is currently fixed at 12 years. This will be changed to between 8 and 20 years, depending on the age of the person.
Sentence for Offenders of Particular Concern (SOPC)
For certain sexual offences that lead to a SPOC, release by the Parole Board will only take place after two-thirds of the term has been served.
There are minimum sentences in place for certain offences such as third strike burglary and second-strike possession of a knife or offensive weapon. Judges have the discretion to impose a sentence less than the minimum and are now seemingly being criticised for doing so. The proposal is to change the criteria in which this can be done to reduce the prospect of a term less than the minimum being imposed.
Detention and training orders
The system will be reformed to remove fixed periods so that an order can be imposed from any length between 4 months and 24 months. The method for considering time spent on remand or bail will also be simplified.
Out of court disposals
A two-tier model is to be used by all forces to ensure consistency. The two options available will be Community Resolutions and Conditional Cautions. This means an end to simple cautions, and cannabis and khat warnings. The proposals do not affect fixed penalties.
Home Detention Orders
A new order will be introduced utilising electronic monitoring technology for a lengthy and restrictive curfew. Other elements can also be added, including treatment orders and alcohol monitoring.
Electronically monitored curfew
The maximum period of curfew will be increased from 12 months to 2 years and will be able to be used more flexibly.
High-end youth community sentences
There will be a pilot of these sentences which will increase the maximum length of ISS (intensive supervision and surveillance) from 6 months to 12 months. It will also add a location monitoring requirement as a mandatory element of ISS.
Location monitoring requirements
This will add the option of a standalone location monitoring requirement to a YRO.
Reform criminal records disclosure rules
Interestingly this proposal will reduce the rehabilitation periods that govern the length of time before a conviction becomes spent.
These courts are to be established incorporating a core set of “internationally recognised problem-solving components” through a centrally coordinated approach. This will include regular drug and alcohol testing, use of incentives, links to core services and regular court reviews of a community order.
Probation officer powers
Officers will be given greater flexibility to supervise offenders at any point within an order.
What will the impact be?
It is estimated, in the government’s Impact Assessment, that implementing the above proposals will result in a total increase in the adult prison population of around 600 offenders by 2028/29. The initial impact in 2021/22 will only be an additional 10 prisoners.
The paper and the government press release refer to GPS monitoring of certain offenders released on licence. Those offenders are said to be those convicted of theft and robbery who have the highest rates of re-offending. The Impact Assessment details the provisions to be implemented, and GPS monitoring of this type is not listed.
How can we help?
In cases where there is more than one defendant, it is a common scenario that one or more pleads guilty, perhaps at an early stage, but others continue their case to trial. When should those who plead guilty early on be sentenced?
A question then arises as to whether those who have pleaded guilty earlier should be sentenced immediately, or at some other point.
The starting point is that a Judge should await the outcome of the other defendants trial, to be as fully appraised of the facts as possible.
In Payne (1950) 34 Cr. App. R. 43 the Court stated:
“It may be a very convenient course to sentence prisoners who plead Guilty on the first day, but that ought not to apply where several persons are indicted together and one pleads Guilty and the other or others Not Guilty. In such a case the proper course is to postpone sentence on the prisoner who has pleaded Guilty until the other or others have been tried and then to bring the prisoner who has pleaded Guilty up in the Court where the other or others have been tried and let all who have been convicted be dealt with together, because by that time the Court will be in possession of the facts relating to all of them and will be able to assess properly the degree of guilt among them.”
“It is a most inconvenient practice and it is a practice which is wrong and which ought to cease. [Courts] should be informed that where more than one prisoner is joined in an indictment and one pleads Guilty and the other or others plead Not Guilty, the sentencing of the first one should be postponed until the others have been tried and all whose guilt has been established should be sentenced together. I hope that [Courts] will take notice of the opinion of this Court and discontinue a practice which can only lead to disproportionate sentences being passed and will naturally leave a sense of grievance in the minds of prisoners.”
If a defendant who has pleaded is to give evidence for the prosecution it was the practice to sentence that defendant before giving evidence, but that rule is no longer followed, and the modern method is to default to the position of sentencing all defendants together.
Ultimately it is a matter of judicial discretion (Palmer (1994) 99 Cr. App. R. 83, CA.)
The default position remains the same for a co-defendant who is intending to give evidence on behalf of another defendant in the proceedings (Coffey (1982) 74 Cr. App. R. 168, CA.)
Where a defendant is in custody and has already likely served any sentence they would receive, this is a compelling argument for sentencing early. However, it again remains a matter for judicial discretion.
In almost all cases where a defendant has pleaded guilty, they want to be sentenced sooner rather than later, to accept the punishment and move on with their lives. Where appropriate, we will always advance a robust argument to the Court to persuade a Judge to sentence early.
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The dictionary definition of “to mitigate” is to lessen in force or intensity, to make less severe. Mitigation is the act of reducing how harmful, unpleasant or bad something is. It is something that causes the court to judge a crime to be less serious or to make a punishment less severe.
There are obvious mitigating factors that most people know about. These include factors such as an early guilty plea or not having any previous convictions.
R v Sanyaki
A recent case at the Court of Appeal highlighted a mitigating factor that some may not have considered.
Sanyaki was a student nurse. Over a four-month period she photographed the front and back of credit cards belonging to other students. She then used the details to pay for goods and services totalling around £7,000. She pleaded guilty to fraud and also the theft of a driving licence and credit card belonging to a student.
The student appealed against the ten-month period of detention that was imposed. She was 18 at the time of the offending in her first year of an adult nursing course. She was asked to leave university when the offences came to light. However, she found a job as a full-time care assistant. She was 20 at the time of sentence and of previous good character.
The sentencing judge took the view that the sentence could not be suspended as it was a prolonged course of conduct, stealing the details of a variety of different people.
The approach of the Court of Appeal
The Court of Appeal is slow to interfere with an exercise of judgement as to whether or not to suspend a sentence where all relevant considerations have been taken into account.
The Court will only interfere if the decision was plainly wrong in principle or results in a sentence which is manifestly excessive.
What happened in this case?
In this case it was found that the judge did not weigh all the relevant considerations in considering whether to suspend the sentence. The Court of Appeal considered that the sentence should have been suspended.
They stated that students who do this kind of thing can expect no concessions from the court. However, the effect of a conviction on future careers, particularly those of previous good character and where the offences were committed when they were young, is a piece of personal mitigation that cannot be overlooked.
The fact that she was a student, therefore, was a mitigating factor. The Court considered the impact that the sentence was going to have on her career, although she would not be able to continue her nursing course and her job as a care assistant.
Sanyaki’s appeal was successful, and her sentence was suspended, and she was to complete unpaid work hours.
How can we help?
Sentencing is a complex process. Consequently the courts are provided with guidelines by the Sentencing Council. These assist in determining the appropriate sentence for a wide, and ever-expanding, range of offences.
The guidelines provide guidance on factors the court should take into account that may affect the sentence given.
Different levels of sentence are set out based on the harm caused and how blameworthy, or culpable, the offender is.
Once the level of harm and culpability are decided, the person sentencing is provided with a sentencing range.
That range could be a fine up to a community order, or, for example, a range of two to six years’ imprisonment.
Do courts have to sentence within the “range”?
Section 125(1) of the Coroners and Justice Act 2009 makes it clear that every court must follow any relevant sentencing guideline:
“unless the court is satisfied that it would be contrary to the interests of justice to do so”.
In addition, a Judge is entitled to determine that a case falls within a higher category, without actually departing from the guideline in accordance with section 125.
An example case
Anthony Owen was convicted of burglary with intent to steal, and he was sentenced to nine years’ imprisonment.
The conspiracy was in relation to commercial premises where it was intended that four trailer units filled with tobacco would be stolen. The value of the goods would have been in the region of £12 million.
Owen was aged 64 at the time he was sentenced and had some convictions, although they were old and therefore ignored.
The maximum sentence for a non-dwelling burglary is ten years.
In Owen’s case, the judge decided it was a case of greater harm and higher culpability. This meant it was a category one offence, which provided a range of one to five years.
The Court of Appeal agreed that this was a case where it was appropriate to go outside of the sentencing levels in the guideline.
It was a serious offence, with high culpability in a number of different respects. Although Owen wasn’t a ringleader, he was integrally involved. The trial judge had been in a good position to assess his role.
Having considered all relevant factors, the Court of Appeal decided that the judge had adopted too high a starting point. A sentence of seven years and six months was substituted.
The substituted sentence was still outside of the sentencing range as although there had been no financial loss; the loss would have been substantial. The judge had also rejected the suggestion that there had been poor planning and execution. The Court of Appeal saw no reason to interfere with that assessment.
Complexity in sentencing
The above case illustrates very well just how complex sentencing can be, even when we have guidelines to assist. In some cases, we can give very accurate sentencing predictions. However, in some instances there will be a margin of appreciation that can be very wide.
We scrutinise all sentencing decisions with great care and will not hesitate to advise on appeal when the Judge has stepped outside the acceptable range. Our detailed knowledge of the guidelines and caselaw means that you can always be assured of a fair outcome.
How can we help?
The government has announced changes to the Unduly Lenient Sentence (‘ULS’) Scheme.
There are certain offences where the prosecution (via the Attorney General) can ask the Court of Appeal to review a sentence if it is thought to be unduly lenient.
Who can apply?
Any person who thinks a sentence was unduly lenient can ask the Attorney General to consider a sentence. The Attorney General must then decide whether or not to refer the case to the Court of Appeal.
The referral must be made within 28 days. However, this period often creates a period of uncertainty and stress for an offender who has been sentenced. In some instances, a successful referral can result in a person who has been given a non-custodial sentence, being sent to prison.
Why is it being extended?
The cross-Government Victims’ Strategy published on 10 September 2018 contained a commitment to keep under review and consider extending the scheme to additional offences related to stalking and harassment; indecent images of children and sexual offences.
The proposed change will fulfil this commitment by amending the Reviews of Sentencing Order. As a result, a further fourteen serious sexual and violent offences will be included.
The inclusion of these offences relating to sexual offending, intimidation and abuse within the ULS scheme is intended to reflect the serious and long-lasting damage they have on victims and survivors. This also rectifies a discrepancy whereby a large number of sexual offences committed against children were included in the scheme, but offences committed by people in positions of authority, and offences committed against people with a mental disorder impeding choice, were not.
The new offences that are eligible for review are:
- section 1 of the Protection of Children Act 1978 (indecent photographs of children)
- section 160 of the Criminal Justice Act 1988 (possession of indecent photograph of child)
- section 4 (putting people in fear of violence) or section 4A (stalking involving fear of violence or serious alarm or distress) of the Protection from Harassment Act 1997
- section 76 of the Serious Crime Act 2015 (controlling or coercive behaviour in an intimate or family relationship)
- section 16 (abuse of position of trust: sexual activity with a child);
- section 17 (abuse of position of trust: causing or inciting a child to engage in sexual activity)
- section 18 (abuse of position of trust: sexual activity in the presence of a child)
- section 19 (abuse of position of trust: causing a child to watch a sexual act)
- section 26 (inciting a child family member to engage in sexual activity);
- section 30 (sexual activity with a person with a mental disorder impeding choice)
- section 31 (causing or inciting a person, with a mental disorder impeding choice, to engage in sexual activity)
- section 32 (engaging in sexual activity in the presence of a person with a mental disorder impeding choice)
- section 33 (causing a person, with a mental disorder impeding choice, to watch a sexual act).
The Criminal Justice Act 1988 (Reviews of Sentencing) (Amendment) Order 2019 also rectifies two previous oversights. It adds in the attempt to commit, and the incitement, encouragement or assistance in the commission of, the two modern slavery offences to paragraph 2 of Schedule 1 via the Modern Slavery Act 2015 (Consequential Amendments) Regulations 2015. This Order also clarifies that the offence of causing racially or religiously aggravated harassment, alarm or distress under section 31(1)(c) of the Crime and Disorder Act 1998 is not in scope of the scheme, as it is a summary-only offence.