Victim Personal Statements

A very important factor when determining sentence is the impact of the offence on the victim. Victims of crime are offered the chance to make a victim personal statement (’VPS’). Paragraph F. 1 of Criminal Practice Direction VII says that this statement ‘gives victims a formal opportunity to say how a crime has affected them ... The court will take the statement into account when determining sentence’. That paragraph goes on to observe that, in some circumstances, ‘it may be appropriate for relatives of a victim to make a VPS, for example where the victim has died as a result of the relevant criminal conduct’.

Paragraph F.3 refers to guidance given by the Court of Appeal in R v Perkins [2013] EWCA Crim 323; [2013] 2 Cr App R (S) 72, where Lord Judge CJ said (at [9]):

(al The decision whether to make a statement must be made by the victims personally. They must be provided with information which makes it clear that they are entitled to make a statement, but ... no pressure, either way, should be brought to bear on their decision. They are entitled to make statements, and they are equally entitled not to do so. They should be informed of their right, and allowed to exercise it as they wish: in particular the perception should not be allowed to emerge that if they choose not to do so the court may misunderstand or minimise the harm caused by the crime.

lb) When the decision whether or not to make a statement is being made, it should be clearly understood that the victim's opinion about the type and level of sentence should not be included ... If necessary, victims must be assisted to appreciate that the court is required to pass the appropriate sentence, in accordance with decisions of this Court, and definitive guidelines issued by the ... Sentencing Council, and make a judgment based on all the facts of the case, including both the aggravating and the mitigating features.

(c) The statement constitutes evidence. That is the basis on which it is admitted. It must therefore be treated as evidence. It must be in a formal witness statement, served on the defendant's legal advisers in time for the defendant's instructions to be taken, and for any objection to the use of the statement, or part of it, if necessary, to be prepared. ...

Id) Just because the statement is intended to inform the sentencing court of specific features of the consequences of the offence on the victim, responsibility for presenting admissible evidence remains with the prosecution.

(e) It follows that the statement may be challenged, in cross-examination, and it may give rise to disclosure obligations, and indeed ... may be used, after conviction, to deploy an argument that the credibility of the victim is open to question.

Paragraph F.3(b) of the Practice Direction emphasises that the VPS must be in ‘proper form, that is a witness statement made under s.9 of the Criminal Justice Act 1967'. That paragraph also says:

Except where inferences can properly be drawn from the nature of or circumstances surrounding the offence, a sentencing court must not make assumptions unsupported by evidence about the effects of an offence on the victim. The maker of a VPS may be cross-examined on its content.

Paragraph 3.F(c) goes on to say:

At the discretion of the court, the VPS may also be read aloud or played in open court, in whole or in part, or it may be summarised. If the VPS is to be read aloud, the court should also determine who should do so. In making these decisions, the court should take account of the victim's preferences, and follow them unless there is good reason not to do so; examples of this include the inadmissibility of the content or the potentially harmful consequences for the victim or others. Court hearings should not be adjourned solely to allow the victim to attend court to read the VPS.

It must also be underlined that the court is only concerned with the impact of the offence on the victim, not with the victim’s views on how severe, or lenient, the sentence should be. Paragraph 3.F(e) says:

The court must pass what it judges to be the appropriate sentence having regard to the circumstances of the offence and of the offender, taking into account, so far as the court considers it appropriate, the impact on the victim. The opinions of the victim or the victim's close relatives as to what the sentence should be are therefore not relevant, unlike the consequences of the offence on them. Victims should be advised of this. If, despite the advice, opinions as to sentence are included in the statement, the court should pay no attention to them.

Community Impact Statements

Paragraph H. 1 of Criminal Practice Direction VII says that a 'community impact statement’, the contents of which may be summarised or read out in open court, may be prepared by the police to ’make the court aware of particular crime trends in the local area and the impact of these on the local community’.

Impact Statement for Business

Paragraph 1.1 of Criminal Practice Direction VII says that, ‘if the victim, or one of the victims, is a business or enterprise (including charities but excluding public sector bodies), of any size, a nominated representative may make an Impact Statement for Business (’ISB’)’. This gives a ‘formal opportunity for the court to be informed how a crime has affected a business’. The supply of an ISB ’does not prevent individual employees from making a VPS about the impact of the same crime on them as individuals. Indeed, the ISB should be about the impact on the business exclusively, and the impact on any individual included within a VPS’.

The plea in mitigation

A plea in mitigation usually comprises a speech by the advocate appearing for the defence. If the defendant is unrepresented, he will be asked if there is anything he wishes to say before sentence is passed.

The plea in mitigation by the defence will usually address the seriousness of the offence, and then draw the attention of the court to any mitigating factors relating to the offender.

Occasionally, witnesses will be called to show the previous good character of the offender or to explain why he acted out of character by committing an offence.

The decision on the sentence to be passed will take account of any relevant guidelines issued by the Sentencing Council (or guideline judgments of the Court of Appeal if no guideline has been issued by the Sentencing Council), and so the defence advocate will have to make use of those resources when preparing the plea in mitigation.

In R v Tongue and Doyle [2007] EWCA Crim 561, the Court (at [13]) noted that, once relevant guidelines have been issued by the Sentencing Council, it should be the exception rather than the rule for advocates to cite previous cases (that is, cases which pre-date the guideline in question).

Factors reducing seriousness or reflecting personal mitigation

The Sentencing Council’s draft General Guideline identifies a number of factors that may serve to reduce the sentence imposed on the offender.

No previous convictions or no relevant/recent convictions

The Guideline states that 'first time offenders generally represent a lower risk of re-offending. Reoffending rates for first offenders are significantly lower than rates for repeat offenders. In addition, first offenders are normally regarded as less blameworthy than offenders who have committed the same crime several times already’. First-time offenders are therefore treated more leniently (unless the crime is a particularly serious one).

The Guideline gives the following additional guidance:

  • • Where there are previous offences but these are old and/or are for offending of a different nature, the sentence will normally be reduced to reflect that the new offence is not part of a pattern of offending and there is therefore a lower likelihood of reoffending.
  • • When assessing whether a previous conviction is recent' the court should consider the time gap since the previous conviction and the reason for it.
  • • Previous convictions are likely to be relevant' when they share characteristics with the current offence (examples of such characteristics include, but are not limited to: dishonesty, violence, abuse of position or trust, use or possession of weapons, disobedience of court orders). In general, the more serious the previous offending the longer it will retain relevance.

Good character and/or exemplary conduct

The phrase ‘previous good character’ is sometimes used to connote merely the absence of previous convictions. However, to have ‘positive’ good character, going beyond a mere absence of previous convictions, can be very strong mitigation (and may, as the draft General Guideline points out, even apply where the offender has previous convictions). As the Guideline states, evidence ‘that an offender has demonstrated positive good character through, for example, charitable works may reduce the sentence’.

For example, in R v Clark (Joan) (1999) The Times, 27 January, the defendant engaged in benefit fraud to the value of some £18,000 over a period of six years (a very serious offence, almost certain to carry a lengthy prison sentence). However, there was a moving tribute from the nephews and nieces she had brought up following the death of their mother, and her parish priest gave evidence of a number of local community and charitable activities with which she had been involved. The Court of Appeal held (perhaps a little surprisingly) that the judge should have placed greater weight on her positive good character (that is, good character going beyond the legal sense of an absence of convictions); the sentence of six months’ imprisonment was reduced to seven days, enabling her immediate release from custody.

It should be noted, however, that this factor is less likely to be relevant if the offence is a very serious one. Moreover, if an offender has used his/her good character or status to facilitate or conceal the offending, this is likely to be treated as an aggravating factor.

Remorse

For remorse to be accepted as mitigation, the court will need to be satisfied that the offender is genuinely remorseful for the offending behaviour. It follows that, in a plea in mitigation, something has to be said about what the defendant has done to demonstrate remorse. This might be (for example) voluntary payment of compensation, or sending a letter of apology to the victim.

The draft Guideline cautions that lack of remorse should never be treated as an aggravating factor.

Self-reporting

Where an offender has self-reported to the authorities, particularly in circumstances where the offence may otherwise have gone undetected, this should serve to reduce the sentence (in addition to the subsequent application of the guilty plea reduction).

Cooperation with the investigation/early admissions

The draft General Guideline notes that ‘assisting or cooperating with the investigation and/or making pre-court admissions may ease the effect on victims and witnesses and save valuable police time justifying a reduction in sentence’ (again this is separate from any guilty plea reduction).

Little or no planning

Where an offender has committed the offence with little or no prior thought or planning, this will generally indicate a lower level of culpability and so justify a reduction in sentence. However, the draft Guideline notes that ‘impulsive acts of unprovoked violence or other types of offending may indicate a propensity to behave in a manner that would not normally justify a reduction in sentence’.

Lesser or subordinate role

Acting as part of a group or gang may make an offence more serious; however, if the offender’s role was a minor one, this may indicate lower culpability and so justify a reduction in sentence.

Involvement through coercion, intimidation or exploitation

This reduces the culpability of the offender and so justifies a reduction in sentence. The draft General Guideline makes the following additional points:

  • • This factor may be of particular relevance where the offender has been the victim of domestic abuse, trafficking or modern slavery, but may also apply in other contexts.
  • • Courts should be alert to factors that suggest that an offender may have been the subject of coercion, intimidation or exploitation which the offender may find difficult to articulate, and where appropriate ask for this to be addressed in a PSR.
  • • This factor may indicate that the offender is vulnerable and would find it more difficult to cope with custody or to complete a community order.

Limited awareness or understanding of the offence

The Guideline notes that the culpability of an offender who was acting alone may be reduced if he did not appreciate the significance of the offence; where an offender is acting with others, his culpability may be reduced if he did not appreciate the extent of the overall offending.

Little or no financial gain

The Guideline says that ‘where an offence (which is not one which by its nature is an acquisitive offence) is committed in a context where financial gain could arise, the culpability of the offender may be reduced where it can be shown that the offender did not seek to gain financially from the conduct and did not in fact do so’.

Activity originally legitimate

Where the offending arose from an activity which was originally legitimate, but became unlawful (for example, because of a change in the offender’s circumstances or a change in regulations), this may indicate lower culpability and so justify a reduction in sentence.

Age and/or lack of maturity

The draft Guideline notes that age and/or lack of maturity can affect both the offender’s responsibility (and therefore culpability) for the offence and also the effect of the sentence on the offender. This is considered in more detail in Chapter IS, in the context of young offenders.

Sole or primary carer for dependent relatives

The court will consider the effect of the sentence on people other than the offender. The draft General Guideline notes that this factor is

particularly relevant where an offender is on the cusp of custody or where the suitability of a community order is being considered. For offenders on the cusp of custody, imprisonmentshould not be imposed where there would be an impact on dependants which would make a custodial sentence disproportionate to achieving the aims of sentencing. Where custody is unavoidable consideration of the impact on dependants may be relevant to the length of the sentence imposed. For more serious offences where a substantial period of custody is appropriate, this factor will carry less weight.

In R v Kazeem [2014] EWCA Crim 1107, Hickinbottom J considered the relevance of the effect on others of imposing a custodial sentence on an offender. He said (at [11]):

When an offender commits a crime ... it is only too often the case that others suffer more than the perpetrator. Those others frequently include parents and children, for whom the offender has care. It is right that sentencers take such responsibilities into account when fixing the appropriate sentence. But where the offending is serious ... the extent to which the court can appropriately mitigate the sentence as a result of such factors may be limited ...

Physical disability or serious medical condition

Physical disability or serious medical conditions requiring urgent, intensive or long-term treatment may affect the impact of a sentence on the offender (in effect, making the sentence more onerous) and, on that basis, may justify a reduction in sentence.

Mental disorder or learning disability

The draft General Guideline makes the important point that mental disorders and learning disabilities ‘are different things, although an individual may suffer from both. A learning disability is a permanent condition developing in childhood, whereas mental illness (or a mental health problem) can develop at any time, and is not necessarily permanent; people can get better and resolve mental health problems with help and treatment’.

For the purposes of sentencing, this includes a wide range of offenders, including those with:

  • • an intellectual impairment (low IQ);
  • • a cognitive impairment such as (but not limited to) dyslexia, attention deficit hyperactivity disorder (ADHD);
  • • an autistic spectrum disorder (ASD) including Asperger’s syndrome;
  • • a personality disorder;
  • • offenders widr a mental illness.
  • • a combination of these conditions.

The Guideline emphasises that courts ‘should be alert to the fact that not all mental disorders or learning disabilities are visible or obvious’.

A mental disorder or learning disability can affect both the offender’s responsibility for the offence and the impact of the sentence on the offender.

In such cases, the court will be assisted by a pre-sentence report and, where appropriate, medical reports in assessing the degree to which a mental disorder or learning disability has reduced the offender’s responsibility for the offence, and also any effect of the mental disorder or learning disability on the impact of the sentence on the offender (for example, making it more difficult for the offender to cope with custody or comply with a community order).

So far as culpability is concerned, the condition may have had an ‘impact on the offender’s ability to understand the consequences of their actions, to limit impulsivity and/or to exercise self-control’. A relevant factor is ‘the degree to which a mental disorder or learning disability has been exacerbated by the actions of the offender (for example by the voluntary abuse of drugs or alcohol or by voluntarily failing to follow medical advice)’. In considering the voluntariness of the offender’s actions, the court should consider ‘the extent to which a mental disorder or learning disability has an impact on the offender’s ability to exercise self-control or to engage with medical services’.

Determination to address addiction or offending behaviour

Where offending is driven by (or closely associated with drug or alcohol abuse), for example ‘stealing to feed a habit, or committing acts of disorder or violence whilst drunk’, a commitment to address the underlying issue may justify a reduction in sentence, particularly where the court is considering whether to impose a sentence that focuses on rehabilitation. A pre-sentence report is like to assist the court in making this assessment.

Assisting the authorities

Where an accomplice pleads guilty and gives evidence for the prosecution against his erstwhile codefendants, substantial credit should be given, particularly where that person’s evidence leads to the conviction of a co-defendant or induces a co-defendant to plead guilty. In R v A (Informer: Reduction of Sentence) [1999] 1 Cr App R(S) 52, Lord Bingham CJ (at p.56) said:

Where defendants co-operate with the prosecuting authorities, not only by pleading guilty but by testifying or expressing willingness to testify, or making a witness statement which incriminates a co-defendant, they will ordinarily earn an enhanced discount of their sentences, particularly where such conduct leads to the conviction of a co-defendant or induces a co-defendant to plead guilty.

It has been the long-standing practice of the courts to recognise by a further discount of sentence the help given, and expected to be given, to the authorities in the investigation, detection, suppression and prosecution of serious crime ... The extent of the discount will ordinarily depend on the value of the help given and expected to be given ... If the information given is accurate, particularised, useful in practice, and hitherto unknown to the authorities, enabling serious criminal activity to be stopped and serious criminals brought to book, the discount may be substantial... Where, by supplying valuable information to the authorities, a defendant exposes himself or his family to personal jeopardy, it will ordinarily be recognised in the sentence passed.

Section 73 of the Serious Organised Crime and Police Act 2005 (‘SOCPA’) applies where the defendant pleads guilty and, pursuant to a written agreement made with the prosecution, has ‘assisted or offered to assist the investigator or prosecutor in relation to that or any other offence’. Under s.73(2), when determining what sentence to pass on the defendant, the court ‘may take into account the extent and nature of the assistance given or offered’. In R v P [2007] EWCA Crim 2290; [2008] 2 Cr App R (S) 5, Sir Igor Judge P noted (at [27]) that the essential feature of this statutory framework is that ‘the offender must publicly admit the full extent of his own criminality and agree to participate in a formalised process’. His Lordship added (at [28]) that ‘the process is not confined to offenders who provide assistance in relation to crimes in which they were participants, or accessories, or with which they were otherwise linked’. Moreover, the common law principles have not been abolished: ‘there will be occasions when a defendant has provided assistance to the police which does not fall within (these) arrangements, and in particular the written agreement. He is not thereby deprived of whatever consequent benefit he should receive’ (at [34]). Concerning the sentence to be imposed on an offender who has entered into an agreement under the Act, his Lordship said (at [39] and [40]):

The first factor in any sentencing decision is the criminality of the defendant, weight being given to such mitigating and aggregating features as there may be. Thereafter, the quality and quantity of the material provided by the defendant in the investigation and subsequent prosecution of crime falls to be considered. Addressing this issue, particular value should be attached to those cases where the defendant provides evidence in the form of a witness statement or is prepared to give evidence at any subsequent trial, and does so, with added force where the information either produces convictions for the most serious offences, including terrorism and murder, or prevents them, or which leads to disruption to or indeed the break-up of major criminal gangs. Considerations like these then have to be put in the context of the nature and extent of the personal risks to and potential consequences faced by the defendant and the members of his family. In most cases the greater the nature of the criminality revealed by the defendant, the greater the consequent risks ... [T]he discount for the assistance provided by the defendant should be assessed first, against all other relevant considerations, and the notional sentence so achieved should be further discounted for the guilty plea ...

The SOCPA procedure requires the defendant to reveal the whole of his previous criminal activities. This will almost inevitably mean that he will admit, and plead guilty to offences which would never otherwise have been attributed to him, and may indeed have been unknown to the police. In order for the process to work as intended, sentencing for offences which fall into this category should usually be approached with these realities in mind and, so far as s.73 agreements are concerned, should normally lead to the imposition of concurrent sentences ...

His Lordship added (at [41]) that it would only be in the ‘most exceptional case’ that the appropriate level of reduction would exceed three-quarters of the total sentence which would otherwise be passed; the ‘normal level' should be a reduction of somewhere between one-half and two-thirds of that sentence.

It should be emphasised that the sentence to be imposed in such a case is a matter for the court, and not something that can be agreed between the prosecution and the defence. In R v Dougall [2010] EWCA Crim 1048; [2011] 1 Cr App R (S) 37, Lord Judge CJ (at [19]) made it clear that, in this jurisdiction, ‘a plea agreement or bargain between the prosecution and the defence in which they agree what the sentence should be, or present what is in effect an agreed package for the court’s acquiescence is contrary to principle’, adding (at [21]) that it is equally clear that no such agreement is in contemplation in the 2005 Act. His Lordship emphasised (at [23]) that ‘agreements between the prosecution and the defence about the sentence to be imposed on a defendant are not countenanced’.

Qualities of a good plea in mitigation

In appropriate cases, a plea in mitigation should try to explain why the offender has turned to crime. For example, it may well be that a person with no previous convictions suddenly starts committing offences at a time when suffering stress at work or as a result of a family break-up. A related argument is that, if the source of the stress has been removed, the risk of reoffending is negligible.

Following interviews with the judges, Jacobson and Hough, in Mitigation: The Role of Personal Factors in Sentencing (Prison Reform Trust, 2007) were able to produce a checklist setting out the attributes of a good plea in mitigation (p.46):

Realistic and informed

  • • Realism is about acknowledging and dealing with the bad features of the case straight away, before moving on to the other aspects.
  • • A good plea should be understated, should acknowledge the downsides of a case, and then 'marshal in a logical and coherent way' the positive issues.
  • • Realism is also about providing the hooks on which to hang a sentence' that is considerably more lenient than one would have thought, by providing a 'realistic, intellectual framework to justify the sentence'.
  • • The good advocates are those who 'give you pause for thought, lead you by the hand and persuade you that you don't have to send him to prison, and that it would be wrong to do so: not for emotional but for intellectual reasons'.

Creative

  • • A good plea draws your attention to matters you have not previously considered, or lays appropriate emphasis on matters that you have not thought important'.
  • • Good pleas are those that really go for it': there is a real art' in persuading someone to do something that is more lenient than he would otherwise do.
  • • Under the pressure of a long court list, 'skilful mitigation makes the task of identifying those unusual features or novel features [of a case] that much easier'. This is a matter of giving some life to the sort of formulaic mitigation that most practitioners can do in their sleep'.
  • • If mitigation is to have an impact, it needs to contain something 'slightly out of the ordinary [that] sounds genuine', and must engage the interest of the judge.

Structured

  • • A good advocate will 'enumerate in a logical order' the main points of the case, without adopting a 'hectoring manner'.
  • • A good plea is 'relevant, concise, well-informed and realistic'.
  • • A good plea has 'tercity [sic], lack of repetition, clarity and relevance to the nature of the offence'.
  • • A good plea is organised, succinct, in bullet points.
  • • Attractive presentation counts, and there is no need for hours of oratory'.
 
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