Determining the seriousness of the offence

Section 143(1) of the Criminal Justice Act 2003 Act provides:

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.

This means that the court is required to pass a sentence that is commensurate with the seriousness of the offence, with seriousness being determined by:

  • • the culpability of the offender, and
  • • the harm caused, intended or risked by the offending.

Culpability

The Sentencing Council’s draft General Guideline (for sentencing offences for which there is no offence specific sentencing guideline) says that culpability ‘is assessed with reference to the offender’s role, level of intention and/or premeditation and the extent and sophistication of planning’.

The draft Guideline goes on to say that the relevance of particular factors will vary depending on the type of offending. However, some general points can be made:

  • • If a characteristic is inherent in the offence, tire mere presence of that characteristic will not be determinative of the level of culpability.
  • • Deliberate or gratuitous violence or damage to property, over and above what is needed to carry out the offence, will normally indicate a higher level of culpability.
  • • For offences where there is no requirement for the offender to have any level of intention, the range of culpability may be inferred from tire circumstances of the offence. Four levels of culpability, from highest to lowest, are identified:
    • o deliberate - intentional act or omission;
    • o reckless - acted or failed to act regardless of tire foreseeable risk;
    • o negligent - failed to take steps to guard against the act or omission;
    • o low/no culpability - act or omission with none of tire above features.
  • • For offences that require some level of culpability (e.g. intention, recklessness or knowledge) to be made out, the range of culpability will be narrower; relevant factors may include, from highest to lowest:
    • O high level of planning/sophistication/leading role;
    • o some planning/significant role;
    • o little or no planning/minor role.

Harm

The Sentencing Council’s draft General Guideline also makes a number of observations about harm.

The term ‘victim’ is used widely in the guideline. It can include ‘one or more individuals, a community, the general public, the state, the environment and/or animal(s)’. In some cases, there may not be an identifiable victim.

The draft Guideline states that an assessment of harm should generally reflect the ‘overall impact of the offence upon the victim (s) and may include direct harm (including physical injury, psychological harm and financial loss) and consequential harm’. When considering the value of property that has been lost or damaged, the court should take account of any ‘sentimental value to the victim(s) and any disruption caused to a victim’s life, activities or business’.

Sometimes the level of harm actually caused will be different from the level of harm intended. Where harm was intended but no harm was caused, or a lower level of harm resulted than was intended, the sentence will ‘normally be assessed with reference to the level of harm intended’. Where, on the other hand, the harm actually caused is greater than that intended, the sentence will ‘normally be assessed with reference to the level of harm suffered by the victim'.

Dealing with a risk of harm ‘involves consideration of both the likelihood of harm occurring and the extent of it if it does’. Risk of harm is less serious than the same harm actually occurring. Where the offence has caused risk of harm but no (or less) harm has in fact been suffered, the ‘normal approach is to move down to the next category of harm’. However, this may not be appropriate if either the likelihood or extent of potential harm is particularly high.

A Victim Personal Statement (see below) may assist the court in assessing harm, but the draft Guideline cautions that the absence of such a statement should not be taken to indicate the absence of harm.

Statutory aggravating factors

The 2003 Act sets out a number of factors that serve to increase the sentence imposed on an offender.

Previous convictions

Prior to the enactment of the Criminal Justice Act 2003, the existence of previous convictions was regarded as resulting in ‘progressive loss of mitigation’ (see, for example, R v Queen (1981) 3 Cr App R (S) 245). An offender with no previous convictions received ‘credit’ for that fact. The more previous convictions recorded against the offender, the more of that ‘credit’ was lost. According to this approach, the sentence for the present offence should not be increased because of the existence of previous convictions, as that would be tantamount to sentencing the offender again for offences which he has committed in the past and for which he has already been punished. However, in Making Punishment Work: report of a review of the sentencing framework of England and Wales (2001), John Halliday recommended that the severity of the sentence should increase when an offender has sufficiently recent and relevant previous convictions. In other words, the court should regard the existence of previous convictions as making the present offence itself more serious, and therefore deserving an increased sentence. The principle recommended by Halliday became enshrined in the Criminal Justice Act 2003.

Section 143(2) of the Act says:

In considering the seriousness of an offence ('the current offence ) committed by an offender who has one or more previous convictions, the court must treat each previous conviction as an aggravating factor if (in the case of that conviction) the court considers that it can reasonably be so treated having regard, in particular, to -

(a) the nature of the offence to which the conviction relates and its relevance to the current offence; and

lb) the time that has elapsed since the conviction.

For a discussion of the so-called 'recidivist premium’, see Julian V. Roberts, Punishing persistence: explaining the enduring appeal of the recidivist sentencing premium (2008) 48 British Journal of Criminology 468-481.

The Sentencing Council’s draft General Guideline give guidance on the application of s.143 (2). The guidance notes that the ‘primary significance of previous convictions is the extent to which they indicate trends in offending behaviour and possibly the offender’s response to earlier sentences’. In assessing the relevance of the particular previous convictions, the Guideline suggests a number of considerations:

  • • Previous convictions are normally relevant to the current offence when they are of a similar type. However, previous convictions for a different type of offence may be relevant ‘where they are an indication of persistent offending or escalation and/or a failure to comply with previous court orders’.
  • • Numerous and frequent previous convictions ‘might indicate an underlying problem (for example, an addiction) that could be addressed more effectively in the community and so do not necessarily indicate that a custodial sentence is necessary'’.
  • o It follows from this that the fact that die defendant has a bad record does not necessarily mean that a custodial sentence is inevitable. It has often been recognised (for example, in R v Bowles [1996] 2 Cr App R(S) 248) that there are occasions when, in the case of persistent offenders, it is appropriate to impose a community' order, rather than a custodial sentence, provided that there is sufficient reason to think that it might be possible to break the defendant’s cycle of offending once and for all. To take such a course of action, the court should be satisfied that the offender is highly motivated to change his/her ways.
  • • If die offender received a non-custodial disposal for the previous offence, the court should not necessarily move to a custodial sentence for the current offence.
  • • In cases involving significant persistent offending, the community' and custody* diresholds (see below) may' be crossed even though the current offence would otherwise warrant a lesser sentence.
  • • The aggravating effect of relevant previous convictions ‘reduces with the passage of time; older convictions are less relevant to the offender’s culpability' for the current offence and less likely to be predictive of future offending’. Where the previous offence is particularly' old it will normally have little relevance to sentencing for the current offence.
  • o The court should therefore consider the time gap since the previous conviction and the reason for it. Where there has been a significant gap between previous and current convictions or a reduction in the frequency of offending, ‘this may indicate that the offender has made attempts to desist from offending, in which case the aggravating effect of the previous offending will diminish’.
  • • Where the current offence is significantly less serious than the previous conviction (suggesting a decline in the gravity of offending), the previous conviction may carry less weight.
  • • When considering the totality of previous offending, a court should take a ‘rounded view’ of the previous crimes and not simply aggregate the individual offences.

It should also be noted that the fact that the offender has previously' received non-custodial sentences, and yet has reoffended, may' well be relevant under s.!43(2). Reoffending could thus be taken as showing that non-custodial sentences do not prevent this offender from reoffending.

This argument is strongest where the offender has committed offences while being subject to a community order.

For an international perspective on the use of previous convictions, see Thomas Mahon, Justifying the Use of Previous Convictions os on Aggravating Factor at Sentencing [2012] Cork Online Law Review 85-97.

 
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