Sentencing 1

Sentencing Principles
SA22
Objectives
 At the end of this Topic you
should understand and be able to apply
the concepts and rules covered in:​
SA 22, Sentencing Principles​

 NB all statute numbers are for reference

only. You do not need to learn them.
 You do need to know and be able to
refer to by name the following cases:
 Goodyear [2005] EWCA Crim 888.
 Newton (1982) 77 Cr App R 13.
Exercise 1
Q.1a. Rachel – classification of theft?

 Theft is an either-way offence.

 You need to memorise this classification. Syllabus
Area 1, Bullet 1
 But note special provisions relating to ‘low-value
shoplifting’ – see Session 2: ‘Zara’.
 Where value of goods does not exceed £200, it is
triable only summarily. However, where defendant is
18 or over (we know from the question that Rachel is
38) then defendant must be given an opportunity to
elect Crown Court trial.
Q.1a. Rachel – classification of theft?
(continued)
 So Rachel retains the right to elect Crown Court trial,
which is what has happened in this case.
Syllabus Area 4
Bullet 4
BCP D6.28
Q.1b. Procedure between conviction and
sentence in Crown Court?
 Guilty plea taken – defendant convicted then:
 Prosecution summary of facts of offence (often
unnecessary if at the conclusion of a trial).
BCP D20.2
 Antecedents if applicable. BCP D20.44
 Any victim personal statement considered.
BCP D20.3; D20.4
 Any TICs taken into account. BCP D20.51–52
Q.1b. Procedure between conviction and
sentence in Crown Court? (continued)
 After summary of facts and antecedents court
considers any reports prepared for the defence (pre-
sentence, medical or psychiatric).
 May adjourn for PSR (a Crown Court judge will have
read the PSR before the hearing; justices may or
may not have seen it).
BCP D20.62; D20.69–71; D20.75
Q.1b. Procedure between conviction and
sentence in Crown Court? (continued)
 Plea in mitigation from defence (if a fine or other
financial order such as compensation or costs is a
possibility, make sure you have the latest details of
your client’s finances and that you have taken
instructions on time to pay by instalments).
Syllabus Area 22
Bullet 5
BCP D20.80
Q.1c. Prosecution duties to assist the court
when passing sentence (SA22 Bullet 5)
• Neutral attitude to sentence. BCP D20.3
• Deal with any ancillary orders. BCP D20.3
• Assist court to avoid appealable error (ensure J
does not exceeding sentencing powers; remind J
of statutory provisions and guidelines). Defence
counsel must also be in a position to do this.
BCP D20.3; D20.6
• Prepare ‘plea and sentence’ document (identifies
aggravating and mitigating factors, statutory
provisions and guidelines). BCP D20.3
Q.1d. Obligation placed on judge when
passing sentence
Giving reasons:
 Sentence passed/pronounced with reasons – orally in
public (reasons obligatory unless sentence fixed by
law or otherwise mandatory).
• Explain sentence in non-technical terms.
 Court must explain effect of sentence and
consequences of non-compliance.
 Judge must also explain degree of credit for guilty
plea being given. BCP D20.94
Q.1d. Obligation placed on judge when
passing sentence (continued)
 Statutory obligations to give reasons also imposed in
the following situations:
• Court with power to make compensation order must
explain reason for not doing so if it chooses not to
order compensation.
• Where court does not order disqualification or
endorsement of licence on account of special
reasons or hardship, must explain. BCP D20.94
Q.1d. Obligation placed on judge when
passing sentence (continued)
 Court is no longer required to identify allowance for
time spent on remand as this is done administratively.
 But if the offender was bailed and subject to
qualifying curfew conditions (i.e. curfew for 9hrs per
day or more) and monitored by electronic tagging,
the court must still direct that the ‘credit period’ (for
which see SA 2020, s325) is to count as time served.
This is not done administratively.
Syllabus Area 24, Bullet 3, BCP E13.13; E13.16
Q.2a. Procedure in the magistrates’ court
 Overall follows same pattern. BCP D23.1–2; D23.6
 Different to Crown Court to some extent if there is an
either-way offence.
 Guilty plea entered.
 If either-way offence, decision taken regarding
whether magistrates’ sentencing powers are
sufficient.
 If sufficient, they deal with offence.
 If insufficient, commit to Crown Court.
 Once decision taken re. committal remaining
procedure in Crown Court and magistrates’ court
same as in Q1.
Q.2a. Procedure in the magistrates’ court
(continued)
 Note: In this question we have ‘low-value shoplifting’
so will stay in magistrates’ court for sentence (‘low-
value shoplifting only travels to Crown Court if
defendant elects trial; magistrates cannot commit for
sentence).
 If magistrates adjourn for PSR, maximum four weeks
if defendant on bail, maximum three weeks if in
custody. BCP D23.2
Q.2a. Procedure in the magistrates’ court
(continued)
 Reasons and explanation:
 Magistrates must give explanation for deciding
upon the particular sentence unless offender
absent and there is no member of public present
either. BCP23.9
 Unless defendant absent or ill health/disorderly
conduct makes it impracticable to do so, must also
explain effect of sentence and failure to comply and
any power to vary/review. BCP D23.9
Q.2b. What if magistrates cannot agree?

 If magistrates deal with the offence for sentence, the

decision as to sentence, like any other adjudication in
the magistrates’ court, must be by majority. If there is
an equal division must adjourn for sentence to be
reconsidered. BCP D23.8
Q.2c. Maximum sentence in magistrates’
court?
 Two x ‘low-value shoplifting’ = maximum aggregate
term of 6 months (two summary offences).
 Note: if we had been dealing with two x either-way
offence:
• Up to 6 months for one either-way offence.
• Maximum aggregate term for two or more either-
way offences: 12 months.
Syllabus Area 22, Bullet 6, BCP D23.14; D23.16-17
 We will look at committal for sentence later.
Q.3. Five purposes of sentencing adults

 Punishment of offender.
 Reduction in crime.
 Reform and rehabilitation of offenders.
 Protection of public.
 Making of reparation to those affected by the offence.
Syllabus Area 22, Bullet 1
BCP E1.2-1.3
Q.4a. Assessment of seriousness

Seriousness =
 Offender’s culpability, and
 Any harm which the offence:
• caused,
• was intended to cause or
• might foreseeably have caused
BCP E1.7
Q.4b. Purpose of determining seriousness

 Purpose of determining seriousness

• Allows the sentencer to arrive at a provisional
sentence by determining which thresholds have
been crossed, indicate whether a custodial,
community or other sentence is most appropriate
and the length of custody, community requirements
or amount of fine.
• That is, find the appropriate starting point for the
sentence. Syllabus Area 22, Bullets 1 and
2, BCP E1.7
Q.4c. Effect of Aggravating and Mitigating
factors on sentence
 Once starting point / provisional sentence is identified
the court looks at:
• Aggravating factors - which will increase the
sentence
• Mitigating factors - which will reduce the sentence
• Syllabus Area 22, Bullets 1 and 2, BCP E1.7
Q.4c. Aggravating factors (AF)

 The general sentencing guideline sets out a list of AF,

which are relevant to sentencing.
 Some reflect higher culpability and some a higher
degree of harm.
 There are general AF and those specific to an
individual offence. Syllabus Area 22, Bullets 1 and 2,
BCP E2.9-10, E2.11-12, E2.15, E2.17
Q.4c. Aggravating factors (AF) (continued)

 Some matters must be treated as statutory AF:

• previous convictions
• offending on bail
• offence with a terrorist connection
• offence aggravated by hostility due to race, religion,
disability, sexual orientation or transgender identity.
Syllabus Area 22, Bullet 2, BCP E2.9-10, E2.11-12,
E2.15, E2.17
Q.4c. Mitigating factors (MF)

 The definitive sentencing guideline sets out a list of

MF relevant to sentencing.
 Some reflect lower culpability and some indicate that
the harm caused is less than usually serious.
Syllabus Area 22
Bullets 1 and 2
BCP E2.18
Q.4d. General AF for Rachel

• Motivated by revenge
• Planning
• Abuse / threats to shopkeeper
• Subject to current court order
Note:
• Size of the shop, small / independent, relevant when
determining harm. The same applies to damaging the
goods
• Although she planned to sell them on, she is not stealing
to order.
Q.4d. Statutory AF for Rachel

 Previous convictions, BCP E2.10

• All recent
• All for similar offences
Note
 You are expected to know statutory AF and be aware
of general AF.
Syllabus Area 22, Bullet 2,
Q.4e Personal mitigation
 The weight to be given to personal mitigation is at the
discretion of the court. BCP E2.18
 General examples: good character, remorse, youth,
old age, serious illness, lapse of time since offence if
not the fault of the offender, pressure to commit the
offence (short of duress), addressing addiction
/offending behaviour, meritorious conduct not related
to offence, impact on others.
 Applied to Rachel:
 Primary carer for children.
Syllabus Area 22, Bullet 2, BCP E2.18
Q.4f. Ancillary orders

 Ancillary orders:
• costs
• compensation.
• Syllabus Area 22, Bullet 6, BCP D23.19
 We will look at these in more detail later in the
session.
Q.5. Discount for a guilty plea

 Plea indicated at the first stage of proceedings: one

third (the first stage will normally be the first hearing
at which a plea or indication of plea is sought).
 Plea indicated after the first stage of proceedings:
maximum one quarter
 Sliding scale of reduction thereafter.
Q.5. Discount for a guilty plea (continued)
 The reduction should be reduced from one quarter to
one tenth on the first day of trial, having regard to
the time when the guilty plea is first indicated to the
court relative to the progress of the case and the trial
date.
 The reduction should normally be reduced further,
even to zero, if the guilty plea is entered during the
course of the trial.
 Applied to Rachel: one tenth discount at door of
court.
 Syllabus Area 22, Bullet 2, BCP E2.1-4
Q.6a. Pre-sentence report

 Must obtain before imposes custody or community

sentence, unless offender 18 or over and PSR
unnecessary. BCP E2.23 (Sentencing Act 2020
section 30(1)-(4) only).
 Applied to Rachel: likely to order due to her history
of offending and personal circumstances. About one
and a half years since she last offended so any PSR
in existence will not be up to date.
Syllabus area 22, Bullet 3.
Q.6b. Other reports

 Victim personal statements: effect of offence on

victim BCP E2.27
 Medical report: where offender is or appears to be
suffering from a mental disorder BCP E2.30
Syllabus Area 22, Bullet 3
Q.7. Role of prosecutor

 It is not the prosecutor’s role to suggest a sentence

to the judge so the prosecutor’s behaviour here was
inappropriate.
 Prosecution duties re sentence are set out in full at
Slide 8 (re Qu 1c).

Syllabus area 22, Bullet 5, BCP D20.3 and D20.6

Q.8. Deterrent sentence
Deterrence may be taken into account, in connection
with the court’s duty to have regard to purposes of
sentencing including the reduction of crime (including
its reduction by deterrence).
Exceptional prevalence in the locality may justify an
enhanced sentence but there would need to be
supporting evidence.
For interest only: 2011 UK riot cases illustrates the
use of deterrent sentences – see R v Blackshaw (and
conjoined appeals – not on syllabus) TLR 25.10.11.
Syllabus Area 22, Bullet 2, BCP E2.19
Exercise 2
Q.1. Scott (18): Aggravating and mitigating
factors
 Statutory aggravating factors:
• Previous conviction: Scott has a previous ‘finding of
guilt’ but it is different in nature and was committed
five years ago.
• Demonstrated hostility related to sexual orientation.
Syllabus Area 22, Bullet 2,
BCP E2.9, E2.11-12
Q.1. Scott (18): Aggravating and mitigating
factors (continued)
 General aggravating factors:
• injury to officer
• use of weapon
• multiple blows (as officer has been believed).
 Mitigating factors:
• lack of premeditation
• (single blow, if Scott had been believed).
 Personal mitigation:
• age (18)
• possible lack of maturity.
Syllabus Area 22, Bullet 2, BCP E2.17
Q2. How will the timing of Scott’s plea
affect sentence?
 The reduction should be a proportion of the total
sentence imposed.
 Max. reduction will be one third if entered at the first
stage of proceedings.
 One quarter after the first stage of proceedings.
 One tenth on the first day of trial.
 Scott: would have been one third for plea at first
appearance BUT reduced. Not believed at Newton
hearing:
• Halved
• Reduced further where witnesses called
SA 22, Bullet 2, BCP E2.4,Bullet 5, BCP D20.9
Q3. If Scott was under 18

 A youth is still entitled to reduction in sentence if

they plead guilty.
 The principle of a reduction in a sentence applies to
the youth courts as well as the adult courts.
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