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The Sentencing Process In The Criminal Court

June 2018

Every day, judges up and down the country sentence people on a wide variety of offences ranging from the trivial to the gravest of crimes. Most of these sentencing exercises pass unnoticed by all but the people directly involved, but from time to time, high-profile cases attract significant public comment about the particular sentence that has been imposed.

The way in which a sentence has been reached can appear opaque when all that is seen is the end result on the evening news. However, in broad terms, the methodology used is straightforward.

The Three-step process

  1. The Court fixes a starting point for the sentence by assessing the gravity or seriousness of the offending. This will take into account any applicable aggravating or mitigating factors relating to the offence. The fact that the offender was abusing a position of trust or authority may justify a higher starting point, for instance, while blameworthy conduct on the part of the victim may justify a lower starting point. There are a range of factors in the law that the sentencing Judge must have regard to if applicable in the particular circumstances of the case.
  2. The Court will then make adjustments as necessary for any relevant factors relating to the offender himself or herself. For example, lack of a previous criminal history and a meaningful offer to make amends may justify a deduction from the starting point, while conversely a history of similar offending may instead warrant an increase.
  3. The final step is to apply a credit for a guilty plea if one has been entered. Generally, the earlier the guilty plea is entered the greater the credit will be, in recognition of the benefits that a swift guilty plea provides to the administration of justice and also to victims. In any event, case law has determined that the credit given for a guilty plea must not exceed 25%.

The Sentencing Act

In passing sentence, the Court must also be guided by the purposes and principles in the Sentencing Act 2002. Serious drug offending, for example, may require the Court to impose a punitive sentence that focuses on holding the offender to account, denouncing their conduct and deterring others in the community from committing the same offence. Other situations, however, may warrant the Court crafting a sentence that primarily focuses on rehabilitation and reintegration into the community.

The question of how to impose sentences that do justice to the individual situation before the Court, while maintaining consistency between cases, has no easy answer. In 2007, Parliament enacted the Sentencing Council Bill, which provides for the establishment of a specialist Sentencing Council to produce, among other things, guidelines about sentencing with the stated intention of promoting consistency in sentencing practice. The incoming National government subsequently signalled its intention not to proceed with the Sentencing Council and the Act was never brought into force.

The new Labour Minister of Justice has signalled an intention to institute or at least consider further reforms to sentencing, including among other things, abolition of the “three strikes law” and further steps to reduce the numbers of offenders being sent to prison. It is clear that this is an area of law that will continue to evolve significantly in the coming years.