How sentencing guidelines operate

How sentencing guidelines operate

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The approach that the guidelines must take is determined by Parliament. The Coroners and Justice Act 2009 requires that the guidelines produced by the Sentencing Council follow a set approach. Generally, for offence guidelines, that approach is as follows:

Step 1 Identify the offence category

The guideline lists factors indicating greater/less harm, higher/lower culpability. The lists are usually exhaustive (e.g. ABH guideline). The user is required to decide, using the offence-specific factors listed, whether the offence is category 1, 2 and 3.

Step 2 Determine the starting point and category range

The user is then able to identify the corresponding starting point and category range.

Then, using a non-exhaustive list of additional factors, the offence is adjusted upwards or downwards by reference to the starting point and range.

Step 3 Other matters causing a reduction in sentence

An example may be assistance given to the police.

Step 4 Reduction for guilty plea

With reference to the Sentencing Guidelines Council’s Reduction for Guilty Plea guideline, the user is required to make an appropriate adjustment to reflect any guilty plea. This is a statutory requirement.

Step 5 Dangerousness

The user is required to consider the issue of dangerousness. In certain circumstances, offenders deemed to pose a significant risk of serious harm to members of the public are considered ‘dangerous’ and are given special types of sentences. For a more detailed explanation, click here.

Step 6 Totality

The user is required to consider totality, where the offender is to be sentenced for multiple offence. A sentence for multiple offences should reflect all the criminality; it is usually not possible simply to add up the appropriate sentence for each single offence.

For example: The sentence for four burglaries could be four consecutive sentences of 6 months, or one sentence of 24 months with three shorter concurrent sentences. The result should be the same.

Step 7 Compensation and ancillary orders

The user is required to consider whether any other powers of the court are appropriate. For example it may be suitable to impose a deprivation order in the case of a man who steals petrol from petrol stations, as he uses his vehicle to commit the offences.

Step 8 Reasons

There is a statutory requirement that the court states its reasons for imposing the sentence that it does. This is to aid counsel in preparing any grounds of appeal, to enable the public to better understand the administration of justice and so the offender understands why he has been sentenced in the way that he has.

Step 9 Consideration for remand time

Where the offender was remanded in custody awaiting trial/sentence, he or she is usually entitled to have the time spent on remand deducted from their final sentence. The reason for this is that they have already spent a period in custody prior to being sentenced and it is deemed ‘fair’ that this ought to count against any sentence imposed. There are exceptions and complications to this general rule.

See here for more details about the Sentencing Council, and here for comment on whether the system achieves its aims.

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Lyndon is the General Editor of Current Sentencing Practice and the Criminal Appeal Reports (Sentencing)

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