The criminal courts: Procedure and sentencing

The criminal courts: Procedure and sentencing Sentencing

Lesson Objectives • I will be able to describe the aims of sentencing • I will be able to state and describe the different sentences available to a court in sentencing an adult offender • I will be able to explain what is meant by aggravating and mitigating factors

Aims • Once the defendant has been found guilty either by the M or the jury, the court must decide on a sentence. There is an underlying concept that justice requires consistency in sentencing. This means that similar crimes should receive similar sentences • When an offender is convicted following a trial or guilty plea, the court has a range of sentencing options available. These depend on the type, seriousness, and the circumstances of the crime and the maximum penalty available by law.

The judge or M have a number of guidelines that are designed to help them make a decision. These guidelines, and the potential sentences available, can be seen in the light of the various traditional theories of punishment that there are as to the purpose of a sentence. These are: • Retribution • Deterrence • Prevention • Rehabilitation • The Criminal Justice Act 2003, s142, requires judges and M’s dealing with an offender in respect of his offence to have regard to the following purposes of sentencing:

Punishment of offenders • The reduction of crime (including its reduction by deterrence) • The reform and rehabilitation of offences • The protection of the public • The making of reparation by offenders to persons affected by their offences

Retribution • This based on the idea of revenge • Demand is seen in tabloid press • All punishment technically has this effect • Is revenge justice? • Retribution can be part of the idea behind punishment, but not always the major principle • The Criminal Justice Act 2003 starts with the principle of punishment and adds in the idea of reparation, which includes the compensation of victims through, e.g. paying for damage caused in a case involving vandalism

Deterrence • Can be an individual deterrent (designed to make the offender not wish to reoffend for fear of suffering the same or worse fate) • Can be general deterrence (the prospect of the potential punishment dissuades most people from offending) e.g. the Government could make illegal parking a strict liability offence with a minimum of 10 years in prison • It is also thought that being caught is a major deterrent, so that better policing will help reduce crime

Prevention of crime • This works to protect the public, by e.g. putting offenders in prison so they cannot reoffend whilst in prison. • It could be said that all sentences aim to prevent crime by demonstrating the bad effect of conviction, but it could be argued that a criminal conviction tends to lead to other convictions as employers are less willing to employ an ex-offender

Rehabilitation • This involves offering the offender help to overcome problems that he faces, thereby attempting to make it easier to avoid future offending • Can be seen as ‘curing’ the offender • Much of rehab is concerned with providing the offender with the skills to cope with life, and can be reflected in ways such as attending an anger management course • This follows from having an individual sentence rather than a fixed tariff

Whilst most sentences have a maximum set by law, some have a fixed penalty and there are also minimum sentences in some circumstancs.

Types of sentence • Custodial (imprisonment) • Community (community rehab order) • Financial (fine) • Discharge (found guilty but not further action) • Other (driving ban) (not in your specification)

Custodial • The most serious sentence, for most serious crimes • Can be imposed if the offence is so serious that neither a fine or community sentence can be justified • The sentence represents the maximum amount of time that the offender will remain in prison • Can be suspended meaning it will not take effect unless there is a subsequent offence within a given period

Community • Concentrate on making sure that the person does not commit more offences • Can be tailor-made for the individual • Combines punishment with changing offender’s behaviour and making amends • Can be:

Compulsory (unpaid) work – works for up to 300 hours on local community projects – aimed at changing offending behaviour • Curfew – offender must be at home between certain times, will wear a tag • Exclusion from certain areas for a period of up to 2 years, may be a tag • Residence requirement, must reside at a specified place • Drug treatment and testing • Alcohol treatment • Supervision – will attend appointments with an Offender Manager from the Probation Service • Attendance – court can direct an offender to spend a total of between 12 and 36 hours at an attendance centre on a number of occasions over a set period of time – will address their behaviour and restricts their leisure time

Financial • Criminal fines are a simple financial penalty imposed on the defendant • Can be a fixed penalty or can be subject to a statutory maximum for the offence • Is the court’s most frequently imposed penalty • M’s can impose a maximum of £5000 assuming that it is less than the statutory maximum • Compensation orders are sometimes made – payable to victim rather than state

Discharge • 2 types • Absolute – court takes no further action, but will appear on criminal record • Conditional – convicted without sentence on condition that they do not reoffend within a certain period of time – between 6 months and 2 years – if another offence is committed, court can look at the old and new offence when deciding a sentence

How the court selects a sentence • Once a defendant has been found guilty, the court’s function is to impose the appropriate sentence. • It is at this stage that the defendant’s previous convictions will be made available and it is likely that a pre-sentence report will be required for more serious offences. • This report is prepared by the probation service. The probation service will be told how serious they consider the offence to be and the purpose of the sentence. Might be related to any of the purposes of sentencing

To compile the report, an officer from the probation service will interview the defendant. The court will tell the service when they wish to receive the report. The defendant will either be remanded in custody or bailed. • A pre-sentence report will look at the reasons why the person committed the offence, their attitude to the offence and to any victims and any other factors that affect their blameworthiness

These are aggravating and mitigating factors. The report will also include an assessment of the offender's risk of harm and risk of reconviction • Aggravating factors are those that make the offence worse and therefore deserving of a harsher sentence – e.g. previous convictions, use of a weapon, seriousness of consequences, racially motivated • Mitigating factors make the crime less bad and can lead to a more lenient sentence – e.g. no previous conviction, pleading guilty and first opportunity and not wasting court’s time, evidence of remorse or provocation

For all offences, pleading guilty at the first opportunity is a mitigating factor, as is cooperation with the police and others involved with the case

The criminal courts: Procedure and sentencing