The judge or magistrates look at the facts of the case and decide what the most appropriate sentence would be, based on the harm caused or intended to the victim and how blameworthy the offender is (culpability / the offender's role).
Sentencing guidelines, set out the process judges should follow and the factors they should consider, to work out the appropriate sentence. Sentencing guidelines are only those: guidelines. Judges are entitled to step outside those guidelines where the circumstances justify it, as long as they recognise that they are so doing and explain their reasons.
In general the sentencing exercise involves the following:
• Identify the appropriate starting point (assessing the seriousness of the offence)
•Consider relevant aggravating factors, both general and those specific to the type of the offence
•Consider mitigating factors and person mitigation
•Reduction for a guilty plea
•The totality principle
For general guidlines see. https://www.sentencingcouncil.org.uk/overarching-guides/crown-court/item/general-guideline-overarching-principles/
For guidlines specific to the offence see. Sentencing Council for England and Wales
The judge will identify the appropriate starting point by assessing the seriousness of the offence.
The seriousness of the offence is assessed by considering:
• the culpability of the offender; and
• the harm caused by the offending
The court must then take into account (Aggravating) factors that may make the offence more serious and (Mitigating) factors which may reduce seriousness or reflect personal mitigation.
When deciding what sentence to impose, magistrates and judges have to take account of (both the facts of the case and) the circumstances of the offender. To help them, they may ask the Probation Service to produce a report (Pre Sentence Report) about the offender.
Sentencing Guidelines: Aggravating and Mitigating Factors
List of mitigating circumstances (non-exhaustive - general and those specific to an offence)
The judge can find some of the following list applicable to the case and/or the offender and reduce the sentence:
- Early Plea
- Remorse
- Age / IQ / Youth and immaturity of the offender
- Previous good character / Out of Character
- Defendant himself a vulnerable person
- Admissions to police in interview
- Co-operation with authorities
- Unconscionable delay in the proceedings / Unacceptable delays in the case (not the fault of the offender)
- Increased difficulty of serving a prison sentence
- Effect on responsibilities Dependants / Job
- A Guilty Plea / No Witnesses at Court
- Letter to Judge / Court / Victim
- No Further Offences
- Limited Basis of Plea
- Character References / Witness
- Family at Court
- Offender acting to protect another
- Offender involved through coercion, intimidation or exploitation
- Spontaneity / Lack of premeditation / Unplanned / Opportunistic
- Previous abuse and/or domestic violence
- Evidence that they acted out of genuine fear
- Actual or reasonably anticipated violence from the victim
- Breach occurred after a long period of compliance
- Victim initiated contact
- Acting out of genuine fear
- Stopped as soon as Police arrived / Ready co-operation with the police
- Genuine shock or remorse (which may be greater if the victim is either a close relation or a friend)
- The offender's age (but only in cases where lack of driving experience has contributed to the commission of the offence)
- The fact that the offender has also been seriously injured as a result of the accident caused by the dangerous driving
- The fact that the offender behaved responsibly and took positive action to assist at the scene
- Victim engaged in consensual sexual activity with the offender on the same occasion and immediately before the offence
- Sexual activity between two children (one of whom is the offender) was mutually agreed and experimental
- Reasonable belief (by a young offender) that the victim was aged 16 or over
- Minimal or fleeting contact
- Peripheral involvement
- Voluntary return of property taken of the victim
- Any voluntary repayment of the amounts overpaid
- The amount involved and the length of time over which the defalcations were persisted in (bearing in mind that a large total may in fact represent a very small amount weekly)
- The circumstances in which the offence began (eg there is a plain difference between a legitimate claim which becomes false owing to a change of situation and on the other hand a claim which is false from the very beginning)
- The use to which the money is put (the provision of household necessities is more venial than spending the money on unnecessary luxury)
- Matters special to the offender such as illness disability family difficulties etc
- Sole or primary carer for dependent relatives
- Mental disorder / Personality disorder
List of Aggravating factors (non-exhaustive - general and those specific to an offence)
The judge can find there was little or no mitigating circumstances to reduce the sentence. The judge may find some of the factors listed below aggravate the offence. The following list may be applicable to the case and/or the offender and increase the sentence / cross the custody threshold:
Statutory aggravating factors:
• Previous convictions, having regard to a) the nature of the offence to which the conviction relates and its relevance to the current offence; and b) the time that has elapsed since the conviction
• Offence committed whilst on bail
• Offence motivated by, or demonstrating hostility based on any of the following characteristics or presumed characteristics of the victim: religion, race, disability, sexual orientation or transgender identity
- Multiple victims
- Abuse of a position of trust
- Significant degree of planning or premeditation
- Vulnerable victim / because of age or disability
- Deliberate targeting of vulnerable victim(s)
- Lengthy incident / sustained assault or repeated assaults on the same victim
- Lack of remorse
- Hostility towards a minority group or individual / Racially/religiously aggravated
- Terrorist purpose / Purpose of advancing a political, religious, racial or ideological cause
- Violence towards Police / Emergency Workers / Victim serving the public
- Sexual or sadistic conduct
- Additional degradation of the victim / Taking photographs or videos of offence
- An especially serious physical or psychological effect on the victim, even if unintended
- Commission of the offence for financial gain (where this is not inherent in the offence itself)
- Commission of the offence for financial gain (where this is not inherent in the offence itself)
- High level of profit from the offence
- Deliberate and gratuitous violence or damage to property, over and above what is needed to carry out the offence
- Abuse of power
- Acting under the influence of drugs or drink
- Sophistication / Professionalism
- Group action / Large group
- Location / Busy public place / Isolated place
- Presence of vulnerable persons
- Presence of others for example, relatives, especially children or partner of the victim
- Injuries/damage
- Intention to commit more serious harm than actually resulted from the offence
- Disguises
- Under post sentence supervision
- Not Guilty Plea / Witnesses at Court
- No evidence of remorse
- Similar previous convictions
- Played a leading role
- Purity of drugs / Close to top of organisation
- Weapons / Specific planned use of a weapon
- Type of weapon / danger
- Taking a knife or other weapon to the scene
- Premeditation / Planning
- The abduction of the victim
- Mental or physical suffering inflicted on the victim
- Concealment, destruction or dismemberment of the body
- Failure to comply with current court orders
- Offence committed on licence or Post Sentence Supervision
- Offence committed whilst in prison
- High value (including sentimental value) of property to the victim, or substantial consequential loss (for example, where the theft of equipment causes serious disruption to a victim’s life or business)
Factors which indicate a reduction for assistance to the prosecution
The court should take into account sections 73 and 74 of the Serious Organised Crime and Police Act 2005 (assistance by defendants: reduction or review of sentence) and any other rule of law by virtue of which an offender may receive a discounted sentence in consequence of assistance given (or offered) to the prosecutor or investigator.
Reduction for guilty pleas
The court should take account of any potential reduction for a guilty plea in accordance with section 144 of the Criminal Justice Act 2003 and the Guilty Plea guideline.
Totality principle
If sentencing an offender for more than one offence, or where the offender is already serving a sentence, consider whether the total sentence is just and proportionate to the overall offending behaviour in accordance with the Offences Taken into Consideration and Totality guideline.
Reasons
Section 174 of the Criminal Justice Act 2003 imposes a duty to give reasons for, and explain the effect of, the sentence. STEP EIGHTConsideration for time spent on (tagged curfew)The court must consider whether to give credit for time spent on bail in accordance with section 240A of the Criminal Justice Act 2003.
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