6.3 Mixture?

I’m Caroline Derry. I’m here with a senior barrister and fellow member of the W111 module team, Mark Hill QC, to talk about sentencing.

We’ll take you through the sentencing process, which begins when the defendant either pleads guilty or is found guilty at trial.

At that point, the court may sentence them immediately - but it will often adjourn the case to get reports. And by adjourn, I mean postpone it until another date.

You say the court – but who is actually doing the sentencing?

In a magistrates’ court, it is a panel of lay magistrates or a district judge. In the Crown Court, it’s a judge – the jury does not get any say in the defendant’s sentence.

And what reports can the court get?

The most common is a pre-sentence report prepared by a probation officer. That will give lots of information about the defendant’s background, their current circumstances, and the likelihood of them reoffending. It will also say whether they are suitable for a community sentence; and it may recommend the sort of sentence that is appropriate.

And the court can also get more specialist reports, such as a medical or psychiatric report?

That’s right. The court will also have a copy of the defendant’s antecedents – their criminal record. But much of the information will come from the prosecution and defence lawyers. Mark, what will happen first at the sentencing hearing?

If the defendant pleaded guilty, or the case was adjourned for reports, the prosecution will begin by outlining the facts of the case. If the defendant pleaded not guilty and the trial has just happened, then obviously the court is familiar with the facts.

So the prosecutor makes sure the court is aware of the relevant facts about the offence. What else will they tell the court?

If there is a Victim Personal Statement, the prosecutor can share that with the court.

That’s a statement in which the victim explains the effect the crime had on them?

It is. The prosecution will also highlight significant features of the offence, particularly aggravating factors – which are things which make the offence more serious.

Like the defendant having committed similar offences before?

Exactly – or it may be something about the offence itself, such as the victim being vulnerable, or the offence having been carefully planned.

The prosecution should also assist the court with any matters of law, for example by referring to relevant sentencing guidelines.

Do the prosecution suggest what sentence the defendant should get?

No, that’s a matter for the magistrates or judge, not the prosecution. But they will ask for orders for the defendant to pay prosecution costs, compensation to the victim, and so on.

So in summary, the prosecution tells the court the facts of the offence, its effect on the victim, the aggravating factors, and any matters of law.

Yes.

And then the defence will make their plea in mitigation – in other words, they will present all the reasons why the court should give a lower sentence. They explain all the mitigating factors relevant to the offence, as well as any mitigating circumstances related to the defendant.

Mitigating factors are those which make the offence less serious. Can you give some examples?

Well, a mitigating factor related to the offence might be that it was committed on the spur of the moment, or that the defendant only played a minor role in it. As for mitigating circumstances related to the offender, those might include that they haven’t been in trouble before, that they are the main carer for children, or that they are addressing the problems which led them to offend.

For example, they might be getting treatment for an addiction.

Exactly. So the court is given a lot of information about the offence, the defendant, and the possible sentences. What does it do with that information?

It uses it to work through the sentencing guidelines, in order to decide the most appropriate sentence.

Could you explain what the sentencing guidelines are?

They are guidance produced by the Sentencing Council, which takes the court step by step through the various considerations, in order to make a fair and consistent sentencing decision.

So there are separate guidelines for different offences?

That’s right. But they all follow a similar format. The first step is to determine the sentencing range, which depends on two things – what is the level of culpability? And what is the degree of harm?

Culpability, meaning blameworthiness. So having a leading role in a well-planned offence, or deliberately targeting vulnerable victims, is more culpable than taking part in the crime through coercion or on the spur of the moment.

Yes, and harm can be of various kinds – physical or financial, for example. The culpability and harm are considered together to decide whether the offence falls within a higher or lower category.

And those factors together will give a starting point for the sentence, as well as a sentencing range. For example, a defendant with a medium level of culpability in a high-value theft – let’s call him Sam - faces a sentence of between 6 months and two years’ imprisonment, with a starting point of 1 year.

But Rita, a defendant with a low level of culpability in a low-value theft, can expect a fine roughly equivalent to her weekly income, with the sentencing range varying from a conditional discharge to a fine one and half times her weekly income.

That’s right. The court takes the starting point, and then moves up and down within the sentencing range, depending on the aggravating and mitigating factors. So the starting point for Sam is a year in prison, but if there are significant aggravating features, such as previous convictions, that might increase to, say, 18 months.

While Rita can expect a fine, but if she has strong personal mitigation - like being very remorseful and having tried to make amends - that might be reduced to a conditional discharge.

Yes – but there is a final step for the court to take. If the defendant pleaded guilty, their sentence will be reduced by up to one third.

So Sam’s 18 month sentence could be reduced to a year. Will the discount always be one-third?

No, it depends on when they pleaded guilty. If they did so at the first opportunity, then they get the full discount. If they wait until the last minute – say, the first day of the trial - the reduction is only one-tenth.

And why do they get a reduced sentence for pleading guilty?

Because it saves the victim and witnesses from having to give evidence in court, and it saves a lot of public time and money as well. It might also indicate that they are taking responsibility for their behaviour.

So: the court will use the sentencing guideline to decide the defendant’s level of culpability and the level of harm caused by the offence. Using those, it calculates the sentencing range and starting point. The sentence will move up the range from the starting point if there are aggravating factors, and down again if there are mitigating factors. The sentence may then be reduced by up to one third if the defendant pleaded guilty rather than having a trial.

That’s right. Having decided the appropriate sentence, what will the magistrates or judge do now?

They will explain all of that reasoning to the defendant and then tell them what the sentence is. They will also make any other orders, such as for compensation to the victim. The reasoning matter because it helps an appeal court to understand the judges thought process if the sentence is appealed. And these sentencing remarks are also important so that the public and the press understand the basis for the court’s penalty, especially in high profile cases.

Well, that sounds pretty straightforward – the guidelines must make sentencing a lot easier!

In many cases, they do. However, there are still lots of difficult decisions for the court to make. For example, how do you deal with somebody who commits minor offences, but does so repeatedly?

That’s a good point. And sometimes, the best option might not be available. For example, the court can only order a defendant to join a programme to treat their addiction or anger management if a place is available. But lack of funding means that often, it may not be.

No – but sending them to prison instead won’t do much to help them deal with those issues. In particular, short sentences disrupt the defendant’s life and carry a lot of stigma, but they don’t allow the prison time to work with them on addressing their offending behaviour or providing them with the training and education to help change their life.

In summary, then, sentencing guidelines help the courts to make sentencing decisions, and also help to ensure that different courts make those decisions consistently with each other. However, they only assist – there are still difficult decisions for the courts to make.

Could you summarise the whole process for us?

Of course. Once a defendant has pleaded guilty or been found guilty, the court will sentence them. The prosecution will outline the facts of the offence and highlight any aggravating factors. Then, the defence will make a plea in mitigation, setting out mitigating factors relevant to the offence and the offender. The court may have other information to help it, such as any pre-sentence report and their criminal record. It will use all of that information to apply the relevant sentencing guideline.

So there is a lot of information considered and care taken in passing sentence.

Exactly! So now it’s over to our listeners to try to make a sentencing decision in the next activity.