Sentencing

Suggested reading:

The context

The textbook that accompanies this website gave a very brief outline of ‘sentencing’ in the criminal justice system of England & Wales. While in the minds of the public the term ‘sentencing’ brings with it connotations of custodial sentences, there are a whole range of sentences that are available for judges depending on the offence and other factors. These include:

Discharges (conditional and absolute)
Custodial sentences (e.g. whole of life terms, minimum)
Fines
Community Orders

Sentencing is a process with a starting point and a range. The application various aggravating and mitigating factors within the sentencing guidelines will then lead to the selection of an appropriate sentence.

As you read

The use of sentencing powers, with the many discounts and complex reductions and aggravating factors, often receives a harsh and negative treatment by much of the mainstream media. There is a perception that sentences are ‘soft’ and are handed down by judges who are ‘out of touch’ with the perceptions of the public. However, judges are constrained by statutory limitations and advice and guidance from the Sentencing Council as well as guidance from the Court of Appeal. For the majority of sentences judges must also consider the purposes of sentencing in section 142 of the Criminal Justice Act 2003:

the punishment of offenders,
the reduction of crime (including its reduction by deterrence),
the reform and rehabilitation of offenders,
the protection of the public, and
the making of reparation by offenders to persons affected by their offences.

The intention of this resource is to consider scenarios and to try to identify the factors and process that judges go through in formulating sentences when a defendant pleads guilty or is convicted following a trial. As you undertake the exercise, reflect on the competing interests and what it tells you about the judicial role. The purpose is not to give an exhaustive treatment of sentencing but rather to help you hone your research skills and to practise applying principles and guidelines to factual scenarios. In this way, the exercise is intended to help you develop your transferable skills, rather than to become an expert in sentencing!

The links to the Sentencing Guidelines at the top of the page will allow you to search specific offences and to apply the guidelines to that offence.

The exercise/activity

Using the appropriate Sentencing Guidelines (links to which are at the top of the page), for each of the scenarios presented to identify:

Whether the offence is a summary offence (normally tried in the Magistrates’ Court), one triable only on indictment (tried in the Crown Court) or an ‘either way’ offence (which may be tried in either the Magistrates or Crown Court depending on allocation)
If applicable, the statute from which the offence can be determined and any sentencing information contained within it (including maximum or minimum sentences)
Where applicable, the likely offence category
The starting point and category range of the of the offence
Any aggravating factors or factors that should mitigate the length of sentence
Any reduction for a guilty plea

Assume that each offence is the only one with which the defendant has been charged.

A) Simon is dismissed from his job at a local factory. He is very angry with this as he is the sole provider for his young family and part-time carer for his mother. He spends some weeks planning how best to respond. He decides to burn down the factory and uses the internet to explore the best way of going about his revenge.

He makes a number of Molotov cocktails (consisting of glass bottles filled with petrol) and, in the dead of night – when he knows no-one will be present – he throws the Molotov cocktails through the windows. He is heard shouting that he hopes the ‘whole fucking building burns to the ground.’ It does and so does the adjoining council library. Simon instantly regrets his actions and calls the fire service.

The library manager is badly burned in the ensuing blaze. Simon has been in trouble with the police in the past and has a prior conviction for common assault from some years ago.

Simon is charged with ‘arson’ under the Criminal Damage Act 1971. He cooperates fully and pleads guilty and has undergone therapy in the aftermath of the offence.

B) Karen is part of a street gang that has been behaving in an anti-social manner in the local city centre. She is a younger member of the gang and has not engaged with any of its previous criminal activities and is generally considered to be a good member of her community, albeit one who has fallen in with the wrong crowd.

The police attend one evening and things get out of hand. A police officer attempts to arrest Karen for public order offences. Karen is unhappy about this and, in order to break free, stamps on the police officer’s foot. The police officer is wearing steel-capped boots and so the impact is minimal but does leave a mark and is a little sore. Karen is charged with ‘assault with intent to resist arrest’ under the Offences Against the Person Act 1861. If possible, Karen would prefer for the matter to be dealt with quickly and without the need for a jury trial.

C) Arjun works as a cleaner, primarily servicing the needs of elderly and vulnerable people living at home. His one client, Blessing, has early signs of dementia but can still live independently and she places a large degree of trust in people like Arjun to help her. One day, Blessing shows Arjun her engagement ring and tells him that it is the only possession that she has to remind her of her late husband. Arjun notices that it contains a fabulously cut diamond that is likely to be very valuable.

The next day, Arjun steals the ring. When Blessing discovers the ring is missing she is distraught. Arjun tries, unsuccessfully, to convince Blessing that she has lost it, reminding her that she has become ‘forgetful’ and that the police have better things to do with their time. Arjun is caught by the police trying to sell the ring to a pawnbroker and is charged with theft under the Theft Act 1968 and is found guilty following a jury trial. He has three previous convictions for theft, two from a shop and one from another elderly client.

D) Wilf is a well-known drug dealer. He specialises in cocaine and supplying it to high-class, wealthy clients through a network of lower-level dealers. Wilf prides himself on having the ‘purest of pure’ cocaine. He is part of a drugs network but is not regarded as the ‘king pin’. He is an intermediary and distributes the drugs to other dealers to sell-on, many of whom he has bribed or coerced into the network. He has some idea of the total drug network but not particular details.

When his home is raided, the police discover a large quantity of heroin (around 1KG), despite his attempts to destroy the drugs by flushing them down the toilet.

Wilf is charged with, and convicted of, possession of a controlled drug with intent to supply it to another under the Misuse of Drugs Act 1971.

Concluding thoughts

These are only a handful of examples that were intended to show you the complexity of sentencing in the English and Welsh Legal System. It should have given you a better insight into what can be a politically and publically sensitive area for the administration of criminal justice. It will also have helped you hone you abilities of ‘fact pattern analysis’ and the ability to apply rules to factual situations. These are all skills that are transferable and will serve you well as you undertake further legal study.