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The basic principles governing sentencing for criminal offences were consolidated by the Criminal justice act (1991), and revised by the Powers of criminal courts sentencing act (2000). Under the prevailing legislation, convictions for a criminal offense can attract a fine (see: Fine sentencing), a Custodial sentence or a Community sentence, of which there are various metas.
Sentencing is influenced by a number of different principles. The sentence may be a deterent, a protection for society against the criminal, a means for the criminal to reform and be rehabilitated into society, or a form of retribution. Currently the principle of retribution seems to predominate; that is, the punishment should represent the offender's 'just deserts'. Partly this results from the natural inclication of the Judiciary and, indeed, of the public. A more cynical view is that, as a society, we have been singularly unable to determine how to reform criminals.
There are three areas of sentencing which you may get questions on in the examination.
- Aims of Sentencing - This is the most popular with students and the easiest to learn. This type of question usually asks you to explain the main aims of sentencing.
- Sentencing Adult Offenders - This looks for an explanation of the range of sentences available to the court for adult offenders.
- Sentencing for Young Offenders - This looks for an explanation of the range of sentences available to the court for young offenders.
The mistake often made by students in the examination is they answer a question set on adult or young offenders by explaining the aims of sentencing! This of course achieves few, if any, marks. Always make sure you answer the question set, not the question you wish the examiner had set.
Aims of Sentencing
The aims of sentencing are concerned with the reason, or objective of the judge (or politician) for handing down a particular sentence, i.e. what do they hope to achieve by giving a prison sentence.
The preferred choice of sentence and the aim of that sentence come in and out of favour, often depending on who the current Government is, pressure from the media and events in society itself. The aims of sentencing consider the wider situation and take into consideration the victim, the offender and society as a whole.
The Criminal Justice Act 2003 sets out the aims of sentencing for adult offenders and the court should have regard to;
- punishment of the offenders
- reduction of crime through deterrence
- reform and rehabilitation of offenders
- the protection of the public
- the making of reparation by offenders to the victims of their crimes
- Retribution (Punishment)
This is society's revenge for the offence committed. The sentence should fit the crime and there should be an element of blame on the part of the offender. This means that a mentally ill person, for example, would not be punished, i.e. should not be subject to retribution.
There are two types of deterrent;
- Individual Deterrence
- General Deterrence
Individual Deterrence - is aimed at the particular offender. The aim is to deter that particular person from offending again. Often a suspended sentence is used to deter the individual concerned.
General Deterrence - is aimed at discouraging others from committing that type of offence, i.e. society as a whole.
Deterrence (individual & general) is based on the assumption that potential future offenders will consider the consequences of their actions. Deterrence is not concerned so much with fairness as a harsher sentence in one case is thought to deter others from doing the same type of crime in the future. One problem with the theory of deterrence is that many crimes are committed in the heat of the moment so deterrence would be of minimal effect on the offender.
Protection of Society
This is usually achieved by the offender serving a prison sentence, thereby being unable to commit further offences. Another example could be a period of disqualification from driving. The electronic tagging of offenders also offers a degree of protection to the public from an offender.
The aim here is to reform the offender and reduce the chances of them re-offending in the future. It is widely accepted that a period of imprisonment has little rehabilitative effect. The Criminal Justice Act 2003 provides for community orders to be made with requirements attached which it is though will help in rehabilitating the offender. It is felt that rehabilitation is particularly important with young offenders, the hope is to reform the behaviour of the young person and break the cycle of offending.
Reparation (Also called Restitution)
This involves the offender paying compensation to the victim. Sometimes offenders are required to carry out unpaid work in the community, this can seen as reparation to society as a whole.
This is not mentioned within the purposes of sentencing in the Criminal Justice Act 2003 but is felt by many academics to be a further aim of sentencing.
Types of Sentence for Adult Offenders
- Custodial Sentences
Murder carries a mandatory sentence of life imprisonment (this means the judge has no discretion on the sentence s/he imposes) for offenders over the age of 18.. For a serious violent or sexual offence a life sentence of indeterminate period can be imposed on an offender under s225 of the Criminal Justice Act 2003.
For other offences a prison sentence up to the maximum for the particular offence may be imposed on offenders over the age of 18.
- Custody Plus
A prison sentence of less than 12 months, known as custody plus, will result in the offender serving part of the time in prison and the remainder out on licence with requirements attached.
- Intermittent Custody
These have now been abolished/abandoned.
- Minimum Sentences
Offenders convicted for a third time of a offence of Class A drug trafficking must be sentenced to a minimum sentence of 7 years imprisonment.
Offenders convicted for a third time of a offence of burglary must be sentenced to a minimum of 3 years imprisonment.
- Community Orders
s177 of the Criminal Justice Act 2003 gives the court the power to impose one or more of the following requirements on offenders aged16 and over.
Unpaid work An activity requirement A programme requirement A prohibited activity requirement Curfew requirement An exclusion requirement Residence requirement Mental health treatment requirement* Drug rehabilitation requirement* Alcohol treatment requirement* A supervision requirement An attendance centre requirement (for offenders aged under 25)
- The offender must be willing to take part if this requirement is to be imposed.
- Other Types of Sentence
A fine may be imposed by the court and there is no limited to the amount the Crown Court can impose. The maximum fine in the Magistrates Court is £5,000 (£20,000 for Health & Safety offences)
A conditional discharge is where the offender is released on condition that they do not re-offend. The period may be up to 3 years.
An absolute discharge is where no conditions are attached and the offender is released.
Anti-Social Behaviour Orders (ASBO)
These can be imposed by the court where an individual has behaved in an anti-social manner. The types of behaviour deemed as anti-social include; harassment, being frequently drunk (Mainly affects students!), being frequently high on drugs, causing a nuisance in a public place or to neighbours.
Under the terms of an ASBO an individual can be ordered not to go to certain place or ordered not to take part in certain activities. If an ASBO is broken it becomes a criminal matter and the offender can then be sentenced in the criminal courts.
Types of Sentences for Young Offenders
Offenders under 18 who are convicted of murder are detained at Her Majesty's Pleasure.
Offenders aged 18-20 may serve their sentences in a prison or a Young Offender Institution.
Offenders aged 12--17 can be may be sentenced to a detention & training order for a specified period of between 4 & 24 months. These orders can only be imposed on persistent offenders if under the aged of 15.
There are limits on the amount of fines for young offenders; 10-13 year olds - maximum of £250 14-17 year olds - maximum of £1,000
Other Sentences Available for Young Offenders A supervision order for up to 3 years An action plan which lasts for 3 months A reparation order for a maximum of 24 hours work A reprimand or warning
Referral to a Young Offenders Team