This essay seeks to consider sentencing in criminal law as a fundamental aspect of the law on criminal justice in the UK. With a view to showing knowledge in this area it was necessary to look to consider two hypothetical examples of pre-sentence reports with regard to people that have committed criminal offences domestically. On this basis, this essay served to research the nature and scope of the sentencing guidelines and the associated reductions and mitigating factors in this regard through consideration of both the available legislation and the decisions of the common law courts that have already been determined in this regard.
In seeking to show an understanding of the aims of sentencing and evaluate the role and powers of the courts to also evaluate and criticise the range of sentences that are available to the courts in the UK, this essay will look to read any two of the available pre-sentence reports on criminal offences. Therefore, there is a need to identify and evaluate those factors that are likely to (and/or should) be taken into account by the courts with a view to sentencing criminal offenders. This means it is necessary to consider how serious the actual offences are from the chosen pre-sentence reports to determine what the aim and purpose of sentencing in these cases actually is. Finally, this essay will speculate upon the possible sentencing outcomes in the cases derived from the two hypothetical pre-sentence reports supported by applying the sentencing guidance principles.
Where defendants like Mr Welling and Mr Cutter are found guilty by a judge they must then adhere to the sentencing guidelines issued by the Sentencing Guidelines Council. [1] Under section 142(1) of the Criminal Justice Act (CJA) 2003 the purposes of adult sentencing was to achieve - (a) punishment; (b) crime reduction; (c) reform and rehabilitation of offenders; (d) public protection; and (e) reparation. [2] However, section 142(2) also provides for exceptions where these purposes will not be applicable where - (a) where an offender is under 18 (there are separate purposes for the youth justice system in the Crime & Disorder Act 1998); (b) where the sentence is fixed by law; (c) where offences require certain custodial sentences; [3] (d) and where various provisions under the Mental Health Act 1983 apply. But in Mr Welling's case the earlier a plea of guilt is given the more it may impact upon his sentence for burglary since section 144(1) of the CJA 2003 provides a court must account for the stage when the offender indicated his intention to plead guilty, and the circumstances when this indication was given. [4] Section 144(2) also provides where a sentence "falls to be imposed under subsection (2) of section 110 or 111 of the (Powers of Criminal Courts (Sentencing) Act 2000 ), nothing . . . prevents the court, . . . , from imposing any sentence which is not less than 80% of that specified". [5] Moreover, section 174(2) states by "taking into account any matter referred to in section 144(1), the court imposes a punishment on the offender which is less severe than the punishment it would otherwise have imposed, [then the court must# state that fact". [6]
The guidelines on a guilty plea apply whether a case is dealt with in a magistrates' court or in the Crown Court. [7] Then, when looking to impose a custodial sentence,, legislation needs the judiciary to impose what is the shortest term considered compatible with the seriousness of the particular criminal offences (i.e. Mr Welling's burglary and Mr Cutter's malicious wounding). [8] Similarly, when seeking to implement a community order, restrictions on liberty must also relate to the seriousness of the offence. [9] It is then for a given court to give sufficient consideration to the necessary reduction for a plea of guilt as in Mr Welling's case despite the fact he is a persistent offender so the final sentence will then be less than what is necessary for recognising a criminal offence's seriousness. [10] A reduction in Mr Welling's sentence may be appropriate because a guilty plea - (i) avoids the need for a trial; (ii) shortens the gap between charge and sentence; (iii) save on considerable costs; and, where an early plea is instigated, (iv) saves victims and witnesses from giving evidence. [11]
Although the reduction principle is derived from the need for effective administration of justice, where a sentencer is in doubt regarding whether a custodial sentence is appropriate, the reduction attributable will be a relevant consideration. Moreover, where this is amongst the factors leading to the imposition of a non-custodial sentence there will be no need to apply a further reduction on account of a plea of guilt. [12] This will also be the case where the reduction for a guilty plea is among the factors leading to the implementation of a financial penalty or discharge rather than a community order. [13] Nevertheless, the implications of other criminal offences like Mr Welling has previously committed should be reflected in the sentence meted out before a reduction for a guilty plea, whilst a reduction should only be applied to the punitive elements of a penalty because it does not impact on sentencing decisions regarding ancillary orders. [14] Therefore, the reduction must be proportionate to the total sentence imposed for a criminal offence calculated by reference to as and when a guilty plea was made. [15]
On this basis, except where section 144(2) of the CJA 2003 applies, reductions level will be determined on a sliding scale ranging from a recommended one third where the guilty plea is entered at the 'first reasonable opportunity' which, as in Mr Welling's case, may be considered at the time of the police interview. [16] However, it is still appropriate for the courts to apply some form of sentencing reduction even where the plea of guilt arises particularly late so long as the mitigating and aggravating factors like previous offences are set out before proceeding. [17] Moreover, even where there is a Newton Hearing [18] (i.e. legal procedure used where two sides offer conflicting evidence so a judge recognises there is a need to ascertain which party is telling the truth) and the offender's version of events is rejected there is a need to account for determining a reduction - although if a plea was made for purely tactical reasons there should be little discount [19] and the court still needs to state what the sentence would have been if there had been no reduction. [20]
However, where a sentence for a 'dangerous offender' like Mr Cutter having committed the offence of malicious wounding is imposed under the CJA 2003, whether the sentence requires a minimum term or an extended sentence, the approach will be the same. [21] But where the prosecution's case is found to be sufficiently overwhelming giving 'credit' encourages a guilty plea like Mr Welling's as soon as possible because any defendant is still entitled to 'put the prosecution to proof' (i.e. to prove their case). [22] Nevertheless, it may be inappropriate to give the full reduction otherwise given for a plea of guilt because there is no need to rely upon admissions from the defendant with a recommended reduction of 20% where the guilty plea is given at the first reasonable opportunity - although a court must state why it has departed from the sentencing guidelines. [23] But the sentencer is bound to deliver sentencing for the criminal offence for which an offender like Mr Welling has been charged and made a guilty plea because it is not for the courts to remedy perceived defects by refusing to instigate the appropriate reduction. [24]
Jurisdictional issues may also arise regarding a guilty plea that may impact upon sentencing. For example, where sentencing powers are limited to 6 months imprisonment despite multiple offences and total sentence for all of the offences is 6 months imprisonment a court may impose consecutive sentences which, even allowing for a guilty plea reduction, would still impact upon the imposition of the maximum available sentence. [25] Therefore, to achieve the purpose for which reduction was established, some modest allowance should normally be given against the total sentence for a guilty plea. [26] However, a maximum sentence could still be implemented for a criminal offence where, despite a guilty plea being entered that would usually lead to a reduced sentence being imposed, a magistrates' court could implement a sentence of 6 months imprisonment for a single either-way offence where, but for the plea, that offence would have been sentenced before the Crown Court. [27]
As for the matter of Mr Cutter's apparent remorse, when seeking to determine sentence length the courts should separately address matters of remorse with view to guaranteeing there is no 'double counting'. [28] because remorse can also influence the level of sentencing given to a particular offender where they are convicted. [29] For example, section 166(1) of the CJA 2003 serves to re-enact and modify section 158 of the Powers of Criminal Courts (Sentencing) Act (PCC(S)A) 2000 to permit a court to account for any relevant matters in mitigation and pass the appropriate sentence irrespective of obligations imposed under section 148 of the CJA 2003 regarding community sentences, by sections 152, 153 and 157 regarding custodial sentences, by section 156 regarding pre-sentence reports and other requirements and section 163 regarding fines. [30] Section 166(2) also served to make it clear courts can impose a community sentence so long as there are mitigating factors even where offences have justified a custodial sentence. [31] Moreover, courts can reduce the sentence imposed for conviction for a particular offence by considering other penalties given to the offender and, where they are convicted of two or more offences, applying the totality principle (i.e. the punitive weight of the sentence relates to the offence). [32]
However, remorse has long been identified as 'personal mitigation' within society as much as in law [33] through the Sentencing Guidelines Council Guidelines on seriousness where remorse is one of few factors cited as mitigation. [34] For example, an independent survey found around 75% of society believed the remorse of an offender would be relevant in some or all cases before the courts seeking justice after a criminal offence having been committed. [35] But, despite such an overwhelming weight of opinion, views can still prove somewhat divided. For example, in the Sentencing Advisory Panel's consultation [36] many participants suggested remorse is the normal reaction to committing an offence so it should only have a neutral impact upon sentencing. Moreover, "remorse is routinely mentioned . . . as a possible mitigation where almost any sort of offence is concerned" [37] - despite substantial arguments to the contrary [38] - because other respondents have suggested remorse is often little more than a calculated attempt to get a lesser sentence so they proposed lack of remorse should be an aggravating factor. [39] But the Sentencing Advisory Panel has argued this approach would be inappropriate since it does not comply with the general sentencing principles a sentence should not exceed what is proportionate to an offence's seriousness because remorse is a consideration after the commission of an offence and is generally irrelevant to culpability or harm. [40]
Although feelings may run particularly high regarding offences resulting in death, the Sentencing Advisory Panel has also recognised similar sentiments are often expressed in other contexts. For example, regarding domestic violence offences, offenders are often suspected of making false protestations of remorse whilst continuing to abuse their victims and pressuring them into requesting a lenient sentence. [41] Such a view is arguably founded on the idea remorse is all too easy to profess and considerably more difficult to disprove for someone like Mr Cutter. But, to establish a standard, an offender looking to advance remorse as a mitigating factor should have accepted responsibility for their actions that led to the offence for which a sentence will be implemented. [42] Nevertheless, the Sentencing Advisory Panel recognised where, with evidence in the form of actions or behaviour an offender feels genuine regret or remorse, it is considered relevant to reducing the impact of an offence on the victim or their family to reduce the level of harm resulting from an offence [43] - although it is impossible to account with any certainty for remorse as a useful indicator of the potential for an offender to be able to re-offend. [44]
To conclude, both Mr Welling and Mr Cutter could be made subject to a custodial sentence for differing reasons. In Mr Welling's case it is because he is a persistent offender as the offence he is currently being sentenced for here (i.e. burglary) is just one of an increasing number so that is arguable that his sentence should reflect this by being both punitive and rehabilitative despite his plea of guilt - although his sentence may be reduced as a result. Then, in Mr Cutter's case, he could also be subjected to a period of imprisonment for the seriousness of the offence that he has committed even though it was a both seemingly a 'one-off' and he showed remorse in the wake of his actions. At the same time, however, there is a need to appreciate that both Mr Welling and Mr Cutter could also be subjected to community service instead. This is because, although this is unlikely to help Mr Welling because of his persistent re-offending so that something more punitive is needed, in Mr Cutter's case community service may help to make him aware of the harm that he caused through the committing of malicious wounding.
