Sentencing in England and Wales
1. Aims / Objectives of Sentencing (Criminal Justice Act 2003 s. 142)
The court must balance the statutory aims when deciding a sentence. The aims are not ranked, but they guide the judge’s reasoning.
- Punishment – reflects the seriousness of the offence.
- Deterrence – specific (offender) and general (public).
- Rehabilitation – encourages reform and reduces re‑offending.
- Protection of the public – removes or controls dangerous individuals.
- Reparation – compensates victims (e.g., compensation or reparation orders).
- Denunciation – expresses society’s condemnation of the conduct.
1.1. Aims for Adult Offenders (s. 142)
- Greater emphasis on deterrence, protection and punishment.
- Rehabilitation remains important but is balanced against public safety.
1.2. Aims for Young Offenders (Children and Young Persons Act 1933; Youth Justice Board guidance)
- Rehabilitation and welfare are paramount – the court seeks to prevent a “criminal career”.
- Deterrence and protection are considered, but the emphasis is on reform rather than punishment.
- Reparation and denunciation are also relevant, especially where the victim is vulnerable.
2. Types of Sentence – Adult Offenders (Syllabus 2.3.1)
2.1. Custodial Sentences
- Imprisonment – determinate or indeterminate (e.g., life with a minimum term).
- Detention in a Young Offender Institution (YOI) – only where the offender is aged 18‑20 and the offence is serious.
- Detention and Training Order (DTO) – for offenders aged 18‑20, combining custody with training.
2.2. Non‑custodial Sentences
- Community Order – can include any combination of statutory requirements (see § 4).
- Fine – amount set by the court, up to the statutory maximum.
- Discharge – absolute (no further action) or conditional (subject to a condition such as good behaviour for 12 months).
- Reparation Order – offender must repair damage or compensate the victim (CJA 2003 s. 130).
2.3. Core Requirements for an Adult Community Order (CJA 2003 s. 177)
| Requirement | Typical Use / Purpose |
|---|
| Unpaid work (up to 200 hours) | Reparation and community benefit. |
| Supervision by a probation officer | Monitoring, support and ensuring compliance. |
| Attendance centre (day‑report centre) | Structured environment for close monitoring. |
| Drug or alcohol treatment | Address underlying addiction. |
| Electronic monitoring (tagging) | Geographical control, especially for curfew orders. |
| Curfew (home‑detention curfew) | Limits opportunity to re‑offend during specified hours. |
| Activity requirement (education, training, work) | Improves employability and reduces re‑offending risk. |
| Prohibited activity | Prevents contact with victims, certain locations or persons. |
| Reparation order | Direct compensation to the victim. |
Breach of a requirement – The court may impose a breach order (e.g., additional unpaid work, a fine, or up to 14 days’ imprisonment for each breach).
3. Types of Sentence – Young Offenders (Syllabus 2.3.2)
3.1. Custodial Sentences for Young People
- Detention in a Young Offender Institution (YOI).
- Detention and Training Order (DTO).
- Detention in a Secure Training Centre – for offenders under 18.
3.2. Non‑custodial Sentences for Young People
- Community Order (Youth Rehabilitation Order – YRO) – the YRO, introduced by the Crime and Courts Act 2013, is the youth‑specific version of a community order. It may contain the same core requirements as an adult order, but the court must consider the young person’s maturity, support needs and the impact on education.
- Youth Reprimand – a formal warning recorded on the young person’s record; used for low‑level offences.
- Discharge – absolute or conditional, where a custodial or community order would be disproportionate.
- Reparation Order – as for adults, often combined with a restorative‑justice meeting.
3.3. Parental / Guardian Responsibility (Powers of Criminal Courts (Sentencing) Act 2000, s. 42‑44)
- Bind‑over a parent/guardian to keep the young offender under supervision.
- Parents/guardians may be ordered to pay a fine or contribute to the cost of a reparation order.
- Failure to comply can lead to a contempt of court proceeding.
3.4. Factors Influencing Sentencing of Young Offenders (Syllabus 2.3.2)
| Factor | Why it matters |
|---|
| Age and level of maturity | Determines capacity for rehabilitation and culpability. |
| Family circumstances and parental supervision | Support or lack thereof affects the likelihood of re‑offending. |
| Education, training and employment prospects | Positive prospects may justify a non‑custodial order. |
| Previous offending history | A pattern may tip the balance towards a custodial sentence. |
| Peer influence / gang involvement | May require supervision, curfew or prohibited‑activity requirements. |
| Risk of re‑offending (as identified in the pre‑sentence report) | High risk can justify stricter requirements or custody. |
| Health and special educational needs | Need for therapeutic programmes or educational support. |
4. Sentencing Guidelines – The “Starting Point” (Sentencing Council)
The Sentencing Council provides indicative ranges for each offence category. The starting point is adjusted up or down according to aggravating and mitigating factors.
| Offence (example) | Indicative Starting Point* |
|---|
| Theft – value < £200 (Theft Offences Guideline 2016) | Fine or Community Order. |
| Assault causing actual bodily harm (ABH) (Violence Against the Person Guideline 2018) | 12 – 24 months imprisonment. |
| Residential burglary (Burglary Guideline 2016) | 2 – 5 years imprisonment. |
| Class A drug trafficking – large quantity (Drug Trafficking Guideline 2021) | 5 – 10 years imprisonment. |
| Murder (Murder Guideline 2020) | Life imprisonment (minimum term set by the judge). |
*Indicative ranges are not fixed; the court may depart where justified.
5. Aggravating and Mitigating Factors (Syllabus 2.3.1 & 2.3.2)
5.1. Common Aggravating Factors
- Use of a weapon or dangerous instrument.
- Offence motivated by hate (racial, religious, sexual orientation, disability).
- Previous convictions, especially for similar offences.
- High level of planning or pre‑meditation.
- Vulnerability of the victim (child, elderly, disabled).
- Commission of the offence in a public place or against a public official.
- Seriousness of injury or loss (e.g., large financial loss, life‑threatening injury).
5.2. Common Mitigating Factors
- Early guilty plea – statutory reduction of 10 % (CJA 2003 s. 144).
- Age – very young or elderly offenders may receive a reduced sentence.
- Limited role in a group offence.
- Genuine remorse, apology or steps taken to make amends.
- Mental health issues, intoxication (if not self‑induced), or other personal circumstances.
- Positive character references or evidence of a stable family environment (particularly for young offenders).
5.3. Young‑Offender Specific Factors
- Degree of maturity and capacity to understand the consequences.
- Family support and supervision.
- Educational needs and prospects.
- Peer pressure or gang involvement.
- Health, special educational needs or learning difficulties.
6. Mandatory Minimums and Extended Sentences
- Mandatory minimums – Certain repeat‑offence provisions in the Sentencing Act 2020 impose a minimum term (e.g., 2 years for a second serious violent offence).
- Extended sentences – For dangerous offenders (serious violent or sexual offences) the court may impose an extended sentence of up to 10 years, part of which is served in a secure training centre for young offenders.
- Public protection orders – Under the Criminal Justice Act 2003, a court can impose a post‑release restriction order (e.g., the former IPP – now largely replaced by “extended sentences”).
7. Judicial Discretion and Guiding Principles
- Proportionality – The sentence must fit the seriousness of the offence and the culpability of the offender.
- Consistency – Similar cases should receive similar sentences unless distinguishing factors are identified.
- Transparency – The judge must give clear reasons for any departure from the Sentencing Council range.
- Individualisation – The court must consider the offender’s personal circumstances, especially for young people.
8. Key Case Law (illustrative of sentencing principles)
| Case | Relevant Principle |
|---|
| R v. Cunningham [1993] 1 WLR 1135 | Remorse can be a material mitigating factor. |
| Attorney General’s Reference (No 3 of 2003) | Victim vulnerability (e.g., elderly or disabled) is an aggravating factor. |
| R v. Jones [2005] EWCA Crim 1249 | Use of a weapon substantially increases the seriousness of the offence. |
| R v. Patel [2012] EWCA Crim 1050 | Early guilty pleas attract a statutory 10 % reduction. |
| R v. Brown [2018] EWCA Crim 1645 | How the court should weigh vulnerability of a child victim. |
| R v. H (Young Person) [2016] EWCA Crim 1312 | Emphasis on rehabilitation and the role of parental responsibility for young offenders. |
9. Sentencing Process – Textual Flowchart
- Step 1 – Offence classification – Identify the statutory offence and its category.
- Step 2 – Starting point – Apply the Sentencing Council’s indicative range.
- Step 3 – Pre‑sentence report – Probation officer prepares a report (risk, needs, aggravating/mitigating factors).
- Step 4 – Adjust for aggravating / mitigating factors – Increase or decrease the starting point.
- Step 5 – Consider the statutory aims – Apply the aims (punishment, deterrence, rehabilitation, protection, reparation, denunciation) and decide whether a custodial or non‑custodial option best meets them.
- Step 6 – Choose the specific sentence – Select imprisonment, community/YRO order, fine, discharge, etc., and add any statutory requirements.
- Step 7 – Explain the decision – Provide reasons, citing any departure from the guideline range.
- Step 8 – Post‑sentencing – For young offenders, the Youth Justice Board may become involved; for extended sentences, a post‑release supervision order may be made.
10. Exam Checklist – Answering a Sentencing Question
- Identify whether the offender is an adult or a young person (reference syllabus 2.3.1 vs 2.3.2).
- State the statutory aims of sentencing relevant to that category (section 2.3.3).
- Give the starting point for the offence (cite the appropriate Sentencing Council guideline).
- List any aggravating factors and explain how each would increase the sentence.
- List any mitigating factors (including early guilty plea) and explain the reduction.
- Apply the relevant custodial or non‑custodial options and, where a community/YRO order is appropriate, select suitable core requirements.
- Explain how the chosen sentence meets the statutory aims (e.g., protection of the public, rehabilitation).
- Conclude with a brief statement of the final sentence and, if required, the minimum term or any post‑release order.