Offending while on bail

Section 143(3) says:

In considering the seriousness of any offence committed while the offender was on bail, the court must treat the fact that it was committed in those circumstances as an aggravating factor.

The fact that the defendant was on bail at the time of the present offence must be regarded as an aggravating feature (resulting in an increase in sentence), whether or not he was subsequently convicted of that other offence. In R v Thackwray [2003] EWCA Crim 3362, the Court of Appeal confirmed that the fact that the defendant was subsequently acquitted of the offence for which he was on bail 'makes no difference’ (per Lord Woolf CJ, at [7]).

Racial or religious aggravation

Section 145(2) says that, if the offence was 'racially or religiously aggravated', the court 'must treat that fact as an aggravating factor’.

The Sentencing Council’s draft General Guideline says that an offence is racially or religiously aggravated for these purposes if:

  • * at the time of committing the offence, or immediately before or after doing so, the offender demonstrates towards the victim of the offence, hostility based on the victim's membership (or presumed membership) of a racial or religious group; or
  • • the offence is motivated (wholly or partly) by hostility towards members of a racial or religious group based on their membership of that group.

For these purposes, ‘membership’, in relation to a racial or religious group, ‘includes association with members of that group’; and ‘presumed’ means 'presumed by the offender’; ‘racial group’ means 'a group of persons defined by reference to race, colour, nationality (including citizenship) or ethnic or national origins’; ‘religious group’ means ‘a group of persons defined by reference to religious belief or lack of religious belief.

In R v Saunders [2000] 1 Cr App R 458, the Court of Appeal said that where an offence involves racial aggravation, a term of up to two years’ custody may be added to the sentence. Also, the presence of racial aggravation may make a custodial sentence appropriate for an offence which would otherwise have merited a non-custodial sentence (per Rose LJ, at p.462).

13.4.4 Disability, sexual orientation or transgender aggravation Section 146(3) of the 2003 Act says that the court must treat as an aggravating factor the fact that the offence was committed in any of the following circumstances:

  • (a) that, at the time of committing the offence, or immediately before or after doing so, the offender demonstrated towards the victim of the offence hostility based on -
  • (i) the sexual orientation (or presumed sexual orientation) of the victim;

lii) a disability (or presumed disability) of the victim; or

  • (iii) the victim being (or being presumed to be) transgender; or
  • (bl that the offence is motivated (wholly or partly) -
  • (i) by hostility towards persons who are of a particular sexual orientation;
  • (ii) by hostility towards persons who have a disability or a particular disability; or
  • (iii) by hostility towards persons who are transgender.

For these purposes, it does not matter whether the offender’s hostility is also based, to any extent, on any other factor (s. 146(4)). Disability means physical or mental impairment (subs.(S)).

Non-statutory aggravating factors

The Sentencing Council’s draft General Guideline identifies a number of other aggravating factors, making it clear that the list is not exhaustive.

Commission of offence whilst under the influence of alcohol or drugs

The fact that an offender is voluntarily intoxicated at the time of the offence ‘will tend to increase the seriousness of the offence provided that the intoxication has contributed to the offending’. In the case of a person who is addicted to drugs or alcohol, the intoxication ‘may be considered not to be voluntary, but the court should have regard to the extent to which the offender has engaged with any assistance in dealing with the addiction in making that assessment'. An offender who has voluntarily consumed drugs and/or alcohol ‘must accept the consequences of the behaviour that results, even if it is out of character’.

Offence committed as part of a group or gang

Where the offence was committed as part of a group or gang this will normally make it more serious because:

  • • the harm caused (both physical or psychological) or the potential for harm may be greater; and/or
  • • the culpability of the offender may be higher (the role of the offender within the group will be a relevant consideration).

Offence involved use or threat of use of a weapon

For these purposes, a ‘weapon’ can ‘take many forms and may include a shod foot’. The use or production of a weapon is relevant:

  • • 'to the culpability of the offender where it indicates planning or intention to cause harm; and
  • • to the harm caused (both physical or psychological) or the potential for harm'.

Relevant considerations will include:

  • • the dangerousness of the weapon;
  • • whether the offender brought the weapon to the scene, or just used what was available on impulse;
  • • the context in which the weapon was threatened, used or produced'.

Planning of an offence

Evidence of planning ‘normally indicates a higher level of intention and pre-meditation which increases the level of culpability’. Therefore, the ‘greater the degree of planning the greater the culpability’.

Commission of the offence for financial gain

This factor is relevant where the offence ‘is not one which by its nature is an acquisitive offence’ but which ‘has been committed wholly or in part for financial gain or the avoidance of cost’; this factor will increase the seriousness of the offence.

Where the offending is ‘committed in a commercial context for financial gain or the avoidance of costs, this will normally indicate a higher level of culpability’. Examples include dealing in unlawful goods, failing to comply with regulatory requirements, or failing to obtain a necessary licence or permission in order to avoid costs. The guideline notes that this sort of offending ‘can undermine legitimate businesses’. If a financial penalty is imposed, ‘it should remove any economic benefit the offender has derived through the commission of the offence’ (including costs that are avoided and any gain made as a direct result of the offending). Where a fine is imposed, ‘the amount of economic benefit derived from the offence should normally be added to the fine ... it should not be cheaper to offend than to comply with the law’. When sentencing organisations, the fine ‘must be sufficiently substantial to have a real economic impact which will bring home to both management and shareholders the need to comply with the law’.

High level of profit from the offence

The draft Guideline also notes that a high level of profit is likely to indicate ‘high culpability in terms of planning and a high level of harm in terms of loss caused to victims or the undermining of legitimate businesses’.

Abuse of trust or dominant position

This factor is relevant where the relationship between the offender and victim(s) is one where the offender has ‘a significant level of responsibility towards the victim(s) on which the victim(s) would be entitled to rely’. Examples given in the draft Guideline include ‘relationships such as teacher and pupil, parent and child, professional adviser and client, or carer (whether paid or unpaid) and dependant’, as well as ‘ad hoc situations such as a late-night taxi driver and a lone passenger’. However, it would ‘not generally include a familial relationship without a significant level of responsibility'.

Gratuitous degradation of victim/maximising distress to victim

The Sentencing Council’s draft General Guideline says that where an offender ‘deliberately causes additional harm to a victim over and above that which is an essential element of the offence’, this will increase the seriousness of the offence. The Guideline gives the example of posting images on social media designed to cause additional distress to the victim. Another example would be a burglary where the offender causes unnecessary damage.

Vulnerable victim

The draft General Guideline states that an offence ‘is more serious if the victim is vulnerable because of personal circumstances such as (but not limited to) age, illness or disability (unless the vulnerability of the victim is an element of the offence)’. Vulnerability can also include ‘the victim being isolated, incapacitated through drink or being in an unfamiliar situation’. Culpability will be increased if the offender ‘targeted a victim because of an actual or perceived vulnerability’; the victim is ‘made vulnerable by the actions of the offender (such as a victim who has been intimidated or isolated by the offender)’; or the offender ‘persisted in the offending once it was obvious that the victim was vulnerable (for example continuing to attack an injured victim)’. The level of harm (physical, psychological or financial) is also likely to be increased if the victim is vulnerable.

Victim providing a public service or performing a public duty at the time of the offence

The draft General Guideline observes that ‘people in public facing roles are more exposed to the possibility of harm and consequently more vulnerable' and/or ‘the fact that someone is working for the public good merits the additional protection of the courts’.

Other(s) put at risk of harm by the offending

This involves consideration of both the likelihood of harm occurring and the extent of it if it does.

Offence committed in the presence of other(s) (especially children)

This reflects the psychological harm that may be caused to those who witnessed the offence. The draft Guideline also notes that the ‘presence of one or more children may in some situations make the primary victim more vulnerable - for example an adult may be less able to resist the offender if concerned about the safety or welfare of children present’.

Actions after the event, including attempts to cover up/conceal evidence

Unless this conduct is the subject of separate charges, it makes the offence more serious.

Blame wrongly placed on other(s)

Where the investigation has been hindered and/or other(s) have suffered as a result of being wrongly blamed by the offender, this makes the offence more serious. The draft Guideline notes that this factor is not engaged where the offender ‘has simply exercised his or her right not to assist the investigation or accept responsibility for the offending’.

Failure to respond to warnings or concerns expressed by others about the offender’s behaviour

Where an offender ‘had the benefit of warnings or advice about their conduct but has failed to heed it’, this would make the offender more blameworthy. This is particularly so where the warning(s) or advice ‘were of an official nature or from a professional source’ and/or 'at the time of or shortly before the commission of the offence’.

Offence committed on licence or post-sentence supervision or while subject to court order(s)

An offender who is subject to licence or post-sentence supervision ‘is under a particular obligation to desist from further offending’. It follows that commission of an offence while subject to a relevant court order makes the offence more serious (where it is not dealt with separately as a breach of that order). The draft Guideline cautions that care should be taken to avoid double counting matters that have already been taken into account when considering previous convictions (see above).

Location and/or timing of offence

The draft General Guideline states that, generally, an offence is not made more serious by its location and/or timing except in ways taken into account by other factors that are addressed in the Guideline (such as planning, vulnerable victim, offence committed in a domestic context, maximising distress to victim, others put at risk of harm by the offending, offence committed in the presence of others). Otherwise there is a risk of double counting. However, the Guideline does say that an offence may be more serious if it is committed in a place 'in which there is a particular need for discipline or safety such as prisons, courts, schools or hospitals’.

Established evidence of community/wider impact

This should serve to increase the sentence ‘only where there is clear evidence of wider harm not already taken into account elsewhere’. A community impact statement (see later) assists the court in assessing the level of impact.

Prevalence

The draft General Guideline makes the point that the sentencing levels in the offence-specific guidelines take account of ‘collective social harm’. Offenders should therefore ‘normally be sentenced by straightforward application of the guidelines without aggravation for the fact that their activity contributed to a harmful social effect upon a neighbourhood or community’. The Guideline also makes the important point that it is ‘not open to a sentencer to increase a sentence for prevalence in ordinary circumstances or in response to a personal view that there is “too much of this sort of thing going on in this area’”. For prevalence to be taken into account:

  • * First, there must be evidence provided to the court by a responsible body or by a senior police officer.
  • * Secondly, that evidence must be before the court in the specific case being considered with the relevant statements or reports having been made available to the Crown and defence in good time so that meaningful representations about that material can be made.
  • * Even if such material is provided, a sentencer will only be entitled to treat prevalence as an aggravating factor if satisfied
  • o that the level of harm caused in a particular locality is significantly higher than that caused elsewhere (and thus already inherent in the guideline levels);
  • o that the circumstances can properly be described as exceptional; and
  • o that it is just and proportionate to increase the sentence for such a factor in the particular case being sentenced.

These points echo those made by the Court of Appeal in R v Oosthuizen [2005] EWCA Crim 1978; [2006] 1 Cr App R (S) 73 (per Rose LJ, at [15] and [16]). Prevalence was also considered by the Court of Appeal in R v Bondzie [2016] EWCA Crim 552; [2016] 1 WLR 3004, where the court emphasised the importance of evidence to show that an offence is particularly prevalent in a given area, and that increasing the sentence on that basis should be exceptional. Treacy LJ (at [10] and [11]) said:

Sentencing levels set in guidelines such as the Drugs Guideline take account of collective social harm. In the case of drugs supply this will cover the detrimental impact of drug dealing activities upon communities. Accordingly, offenders should normally be sentenced by straightforward application of the guidelines without aggravation for the fact that their activity contributes to a harmful social effect upon a neighbourhood or community. It is not open to the judge to increase sentence for prevalence in ordinary circumstances or in response to his own personal view that there is 'too much of this sort of thing going on in this area'.

Firstly, there must be evidence provided to the court by a responsible body or by a senior police officer. Secondly, that evidence must be before the court in the specific case being considered with the relevant statements or reports having been made available to the Crown and defence in good time so that meaningful representations about that material can be made. Even if such material is provided, a judge will only be entitled to treat prevalence as an aggravating factor if (a) he is satisfied that the level of harm caused in a particular locality is significantly higher than that caused elsewhere (and thus already inherent in the guideline levels); (b) that the circumstances can properly be described as exceptional and (c) that it is just and proportionate to increase sentence for such a factor in the particular case before him. It is clear therefore, that a court should be hesitant before aggravating a sentence by reason of prevalence. Judges will be only too well aware of the types of harm which are caused by drug dealing and will not be assisted by statements of the obvious. Only if the evidence placed before the court demonstrates a level of harm which clearly exceeds the well understood consequences of drug dealing by a significant margin should courts be prepared to reflect this in sentence. If judges do so, they must clearly state when sentencing that they are doing so.

His Lordship added (at [19]):

If the Crown intends to invite the court to consider that matter, it must expressly say so at the hearing, identifying the materials upon which it relies as evidence and referring the judge to the relevant guideline. If a judge of his or her own motion is contemplating prevalence as a factor, he or she should clearly identify that as a matter to be addressed in submissions to the court. Any sentence imposed should then identify if prevalence has been a factor and provide reasoning so that the parties, and possibly this court, may understand how it has influenced the sentencing decision.

 
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