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SENTENCING PRINCIPLES NOTES
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SENTENCING PRINCIPLES E NOTES - BPTC, Criminal Litigation In conjunction with BPP Criminal Litigation Manual and Blackstone's Criminal Practice 2021.
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SENTENCING PRINCIPLES NOTESA 'sentence' = any order made by a court when dealing with an offender in respect of an
offence; ancillary orders, custodial, community, and financial penalties (s.142(3) CJA 2003)
D charged with:
1. A single offence→ sentenced immediately after plead/verdict OR court adjourns e.g.
requires further info, insufficient time, or need to obtain PS pre-sentence report.
2. Multiple offences→ if pleads guilty to only some, court decide whether to sentence on
the matters plead to immediately or adjourn these to conclusion of trial.
3. Where pleas mixed with multiple Ds→ court likely wait until conclusion of it to sentence
any Ds who have plead guilty/found guilty.
a. Purposes of sentencing and sentencing guidelines
S142 (1) → Any court dealing with an offender in respect of his offence must have regard to the
following purposes of sentencing—
(a) the punishment of offenders,
(b) the reduction of crime (including its reduction by deterrence),
(c) the reform and rehabilitation of offenders,
(d) the protection of the public, and
(e) the making of reparation by offenders to persons affected by their offences.
The court should consider which of the 5 purposes of sentencing it is seeking to achieve
through the sentence that is imposed (SG-Overarching Principles). It is applicable to all
offenders aged 18 or over (so not apply to those under 18 at time of conviction) and to
organisations sentenced on/after 1 October 2019 irrespective of the date of the offence and
to corporate offenders. Purpose of YJS is to prevent offending by children and young persons'
(s37 CDA 1998) and there is a duty to have regard to the welfare of the child or young person
(s44 CYPA 1933).
S142(1) does not apply where:
• The offence is fixed by law (murder);
• The sentence falls to be imposed under s1(2B) or 1A(5) PCA 1953,
s110(2) or 111(2) PCC(S)A 2000, s51A(2) FA 1968, s. 139(6B), 139A(5B) or 139AA(7) CJA
1988, s. 29(4) or (6) VCRA 2006 (all prescribed min sentences), s. 224A, 225(2) CJA
2003, s226(2) (dangerous offenders);
• In relation to the making of a hospital order
Sentencing Guidelines: (Sentencing Council prepares SG; general or limited to particular
offences/categories or offenders (s.120 Coroners and Justice Act 2009).
• The SGs should specify the 'offence range' to impose on an offender convicted of that
offence and, if the SG describe different categories of case, specify for each category a
'category range' within the offence range. Should also specify the 'starting point' within
the offence range or within each category range (s121).
• Every court must (a) in sentencing an offender, follow any SG relevant to the offender's
case, and (b) in exercising any other function in relation to the sentencing of offenders,
, follow any SG relevant to the exercise of that function, unless the court is satisfied that it
would be contrary to the IOJ to do so (s.125).
b. Assessment of seriousness, reduction in sentence for guilty plea, aggravating and
mitigating features, the totality principle and prevalence
Determining the Seriousness of an Offence
s143(1) CJA 2003→ In considering the seriousness of any offence, the court must consider
the offender's culpability in committing the offence and any harm which the offence caused,
was intended to cause or might foreseeably have caused.
SG: SERIOUSNESS → how sentencers should determine when the thresholds have been
crossed. Applies only to sentences passed under the stat framework applicable to those aged
18 or over but aspects will assist assessing the seriousness of offences by under 18s.
A. Statutory provisions
1.1→ Where the offender is aged 18 or over at the time of conviction, the court must have
regard to the 5 purposes of sentencing (s142(1)).
1.2→ None of the purposes should be more important than any other and they may all be
relevant to a greater or lesser degree in a case- the sentencer determines the manner in which
they apply.
1.3→ The sentencer must start by considering the seriousness, which will:
• Determine which of the sentencing thresholds has been crossed;
• Indicate whether a custodial, community or other sentence is the most appropriate;
• Be the key factor in deciding the length of a custodial sentence, the onerousness of
requirements to be incorporated in a community sentence and the amount of any fine.
1.4 ➔ A court is required to pass a sentence that is commensurate with the seriousness of
the offence. The seriousness of an offence is determined by the culpability of the offender
and the harm caused or risked being caused by the offence.
1.5 ➔ In considering the seriousness of any offence, the court must consider the offender's
culpability in committing the offence and any harm which the offence caused, was intended
to cause or might foreseeably have caused.
B. Culpability
4 levels of criminal culpability, where the offender-
(1) Has the intention to cause harm, with the highest culpability when an offence is planned.
The worse the harm intended, the greater the seriousness.
(2) Is reckless as to whether harm is caused, that is, where the offender appreciates at least
some harm would be caused but proceeds giving no thought to the consequences even
though the extent of the risk would be obvious to most people.
(3) Has knowledge of the specific risks entailed by his actions even though he does not intend
to cause the harm that results.
, (4) Is guilty of negligence.
There are offences where liability is strict and no culpability need be proved for obtaining a
conviction, but the degree of culpability is still important when deciding sentence.
C. Harm
1.8 ➔ The provision encompasses those offences where harm is caused but also those
where neither individuals nor the community suffer harm but a risk of harm is present.
To Individual Victims
1.9 ➔ The types of harm caused or risked by different types of criminal activity are diverse
and victims may suffer physical injury, sexual violation, financial loss, damage to health or
psychological distress.
1.10 ➔ The nature of harm depends on personal characteristics and circumstances of the
victim and the court’s assessment will consider the impact of a crime on the victim.
1.11 ➔ In some cases no actual harm may have resulted, and the court will assess the
relative dangerousness of the offender's conduct- it will consider the likelihood of harm
occurring and the gravity of the harm that could have resulted.
1.12 ➔ Some offences cause harm to the community at large and may include economic
loss, harm to public health, or interference with the administration of justice.
Other Types of Harm
1.13 ➔ There are other types that are more difficult to define or categorise. E.g. cruelty to
animals, may be a human victim who suffers psychological distress/financial loss.
1.14 ➔ Some conduct is criminalised purely by reference to public feeling or social mores.
Concern about the damage caused by some behaviour, both to individuals and to society as
a whole, can influence public perception of the harm caused e.g. supply of prohibited drugs.
D. The Assessment of Culpability and Harm
1.15 ➔ s.143(1) clarifies the assessment of the seriousness of any offence must take account
not only of any harm actually caused, but also of any harm that was intended or might
foreseeably be caused by the offence.
1.16 ➔ Assessing seriousness is a difficult task i.e. sometimes the harm that results is greater
than the harm intended by the offender and sometimes the offender's culpability may be
higher than the harm resulting from the offence.
1.17 ➔ Harm must always be judged in the light of culpability- will be determined by such
factors e.g. motivation, planning or if offender in a position of trust. Culpability will be greater
if offender deliberately causes more harm than is necessary for the commission of the
offence or targets a vulnerable victim (old or youth, disability or by their job).
1.18 ➔ Where unusually serious harm results and was unintended and beyond the offender’s
control, culpability will be influenced by the extent the harm could have been foreseen.
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