Published: Wed, 07 Mar 2018
When deciding the type of sentence and amount, magistrates and judges (the
court) will consider a number of factors. Note that the relevant law has now
been consolidated in the Powers of Criminal Courts (Sentencing) Act 2000.
1. THE SERIOUSNESS OF THE OFFENCE
The court will make an initial assessment of the seriousness of the offence.
If the defendant pleaded guilty, the prosecutor will outline the facts of the
case to the court. If the defendant contested the charge, ie, pleaded not
guilty, then the magistrates or judge would have noted the facts during the
trial. When imposing a community sentence or custodial sentence:
The court must take into account all such information about the
circumstances of the offence(s) including any aggravating or mitigating
factors as is available to it: ss36 and 87(4).
If the offence was racially aggravated, the court shall treat that fact as an
aggravating factor (that is to say, a factor that increases the seriousness of
the offence): s153.
2. THE DEFENDANT’S RECORD
The magistrates or judge will then consider the defendant’s previous
convictions, if any. This information will have been recorded in a police
antecedent statement. In addition, the PCCSA 2000 provides that in considering
the seriousness of any offence:
The court may take into account any previous convictions of the
offender or any failure of his to respond to previous sentences: s151(1).
The court must treat the fact that an offence was committed whilst on
bail as an aggravating factor: s151(2).
Minimum sentences may now be imposed in certain situations:
Where a person is convicted of a second serious offence, the court
shall impose a life sentence unless there are exceptional circumstances
relating to either the offences or to the offender which justify its not
doing so (serious offences are murder, attempted murder, soliciting murder,
manslaughter, wounding/gbh with intent, rape, attempted rape, intercourse
with a girl under 13, firearm offences and robbery with a firearm): s109.
Where a person is convicted of a third Class A drug trafficking
offence, the court shall impose a custodial sentence of at least seven years
except where there are specific circumstances relating to the offences or
offender and would make the sentence unjust in all the circumstances: s110.
Where a person of the age of 18 or over is convicted of a third
domestic burglary, the court shall impose a custodial sentence of at least
three years except where there are specific circumstances relating to the
offences or offender and would make the custodial sentence unjust in all the
An appeal against such a minimum sentence can be made if a previous
conviction is set aside: s112.
3. PLEA IN MITIGATION
The defendant’s lawyer (or even the defendant personally) will make a plea in
mitigation. This is an opportunity to explain to the court why the offence was
committed, the defendant’s personal circumstances and that the defendant feels
remorse. The PCCSA 2000 provides that:
Nothing shall prevent a court from mitigating an offender’s sentence
by taking into account such matters as, in the opinion of the court, are
relevant in mitigation of sentence: s158.
If the defendant is to be imprisoned or a community sentence passed, the
court must obtain a Pre-Sentence Report unless it is of the opinion that it is
unnecessary (ss36 and 81). The purpose of a PSR is to provide information to the
court about the offender and the offences so that the court has sufficient
relevant information to enable it to decide a suitable sentence. It will be
prepared by a probation officer after an interview with the defendant and will
(a) an assessment of the offending behaviour;
(b) an assessment of the risk to the public; and
(c) a clear and realistic indication of the action which can be taken by the
court to reduce re-offending.
For further details see s81.
It may also be necessary to obtain a medical report on the defendant’s
physical or mental health. For mentally disordered offenders see s82.
This is a two-stage process.
(a) The court must decide which type of sentence to pass: (i) a custodial
sentence, (ii) a community sentence, (iii) a fine, or (iv) a discharge. Other
sentences may also be available depending on the type of offence committed or
the age of the defendant. Some guidance has been provided on deciding the type
of sentence by the PCCSA 2000:
A court may not pass a custodial sentence unless the offence(s) was so
serious that only such a sentence can be justified; or if a violent or
sexual offence, that only custody would protect the public from serious harm
from him: s79(2).
A court may not pass a community sentence unless the offence(s) was
serious enough to warrant such a sentence; and it is suitable for the
(b) The court must then decide the tariff, ie how much?
The Magistrates’ Court Sentencing Guidelines give starting points for
offences which magistrates deal with regularly in adult courts. They list the
kind of aggravating and mitigating factors which might make either a more or
less severe sentence appropriate in an individual case.
The Court of Appeal provides sentencing guidelines for judges in the Crown
Court. For example, guidelines were given for the offence of rape in R v
Billam (1986) 82 Cr App R 347. The Sentencing Advisory Panel, which
began work in July 1999, provides objective advice and information to the Court
of Appeal when it formulates or revises sentencing guidelines.
Otherwise, some general guidance has been provided by statute:
A custodial sentence must be commensurate with the seriousness of the
offence(s); or if a violent or sexual offence, for such longer term as is
necessary to protect the public from serious harm from the offender: s80(2).
When imposing a custodial sentence for a sexual or violent offence, if
the court believes that if the offender were to be released on licence and
the licence period would not be adequate to prevent re-offending and
securing his rehabilitation, the court may pass an extended sentence of ten
or five years, respectively. During this “extension period” the
offender will be subject to a licence: s85.
Community sentences must be suitable for the offender and the
restrictions on liberty placed by a community sentence must be commensurate
with the seriousness of the offence(s): s35(3).
Before fixing the amount of a fine to be imposed on an offender, the
court must inquire into his financial circumstances: s128.
There may be a reduction in sentence for guilty pleas, under s152:
The court will take into account the stage in the proceedings at which
the offender indicated his intention to plead guilty and the circumstances
in which this indication was given. If as a result, the court imposes a
punishment which is less severe than it would otherwise have imposed, it
must state in open court that it has done so.
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