Law (9084) | Sentencing in England and Wales

Welcome to Sentencing in England and Wales!

Hello future lawyers! This chapter marks the end of our criminal law journey, but it’s arguably the most human part of the process: deciding the punishment.
Sentencing is where the court balances justice for the victim and the needs of society against the circumstances of the offender. It's complex, but essential to understand how the law achieves its goals.
Don't worry—we'll break down the types of sentences and the rules judges must follow, using simple steps and examples!

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2.3.3 The Aims of Sentencing (Why do we punish?)

Before looking at *what* sentences are available, we must understand *why* the court chooses to impose them. The purposes of sentencing are set out in law, ensuring consistency and fairness.

The Five Core Aims of Sentencing (The 5 Rs)

The goals for sentencing adult offenders are typically covered by five key objectives. You need to know these well for the exam!

Memory Aid: Think of a five-star sentence aiming for the Real Reason Dangerous Robbers Pay.

1. Retribution (Punishment):
   

   This is the idea that the offender deserves punishment for their crime, often described as 'an eye for an eye'. It focuses on the severity of the crime committed, not on trying to change the offender.

   Example: A judge imposing a harsh sentence because the crime caused significant, measurable harm to the victim.


2. Deterrence:
   

   Trying to discourage future criminal acts. This can be individual (stopping the specific offender from re-offending) or general (stopping the public from committing similar crimes).

   Analogy: A speed camera isn't just punishing the person speeding (individual), it's also warning everyone else on the road (general).


3. Rehabilitation (Reform):
   

   A forward-looking aim, focusing on reforming the offender's behaviour so they can become a law-abiding member of society. This often involves training, counselling, or treating addiction.

   This is often the main goal behind many community orders.


4. Public Protection (Incapacitation):
   

   Removing dangerous offenders from society to protect the public from further harm. This usually involves a custodial (prison) sentence.

   Example: Sentencing a serial violent offender to a long term in prison.


5. Reparation:
   

   Making amends to the victim or community, usually through compensation (money) or unpaid work.

   Example: Ordering an offender to pay for damage they caused to property.

Aims of Sentencing for Young Offenders

While the 5 Rs apply generally, sentencing for young offenders (those under 18) places a much greater emphasis on rehabilitation and welfare. The primary goal is usually to prevent re-offending and encourage them to mature into responsible adults.

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2.3.1 Sentencing Adult Offenders (Types of Sentence)

Once the aims are decided, the court chooses the most appropriate sentence from a hierarchy of options, ranging from the most severe (custodial) to the least severe (discharge).

1. Custodial Sentences (Imprisonment)

This is the most severe option, meaning the offender is sent to prison. It is reserved for offences so serious that only imprisonment can justify the punishment (Retribution) or where the public must be protected (Public Protection).

• Mandatory Life Sentence: Required for murder. The judge decides the minimum number of years before the offender is eligible for parole (the tariff).
• Discretionary Life Sentence: Available for very serious offences (e.g., manslaughter, rape). The judge decides if a life sentence is appropriate.
• Fixed-Term Sentence: A specific length of time (e.g., 5 years). Offenders are usually released after serving half the sentence 'on licence' (under supervision).

2. Community Sentences

These are sentences served in the community, focused heavily on Rehabilitation and Reparation. They involve requirements that the offender must follow, often combined together.

Think of this as a structured contract the offender signs with the court.

Common requirements include:

• Unpaid Work Requirement: The offender must perform between 40 and 300 hours of community service (e.g., clearing parks, painting community buildings). This achieves Reparation.
• Supervision Requirement: Regular meetings with a probation officer.
• Activity Requirement: Engaging in specific activities, such as attending educational courses.
• Curfew Requirement: Being required to stay at a specific address during certain hours, often monitored electronically (tagging).
• Prohibited Activity Requirement: Banning the offender from certain activities or places.

3. Fines

A fine is a financial penalty. It is the most common sentence, particularly for less serious offences handled in the Magistrates' Court (e.g., minor traffic offences or low-level assault).

The level of the fine depends on two main things:

• The seriousness of the offence.
• The offender's ability to pay (their financial means).

4. Discharges

Discharges are used when the court feels the experience of being charged and convicted is punishment enough, and the offender is unlikely to re-offend. This is the least severe outcome.

• Absolute Discharge: The court takes no further action. Used when the offence is minor or technical (e.g., the offender committed the crime unknowingly).
• Conditional Discharge: The offender is released but on condition that they do not commit another offence within a set period (up to 3 years). If they do commit another crime during this time, they can be re-sentenced for the original offence as well as the new one.

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Factors Influencing the Sentence

Judges and magistrates do not sentence based on mood; they follow guidelines issued by the Sentencing Council. They must consider the offence and the offender's individual circumstances.

Factors in Sentencing

The process is often described as two steps:

1. Step 1: Assessing Culpability and Harm: How responsible was the offender, and how much damage was done?
2. Step 2: Considering Aggravating and Mitigating Factors: Adjusting the sentence severity up or down.

Aggravating Factors (Making the Sentence Harsher)

These are features of the crime or the defendant that increase the seriousness and lead to a longer or tougher sentence.

• Premeditation: The crime was planned, not spontaneous.
• Use of a weapon or violence: This significantly increases harm and culpability.
• Targeting a vulnerable victim: (e.g., an elderly person, a child).
• Hate crime: The offence was motivated by hostility towards race, religion, sexual orientation, etc.
• Previous convictions: Especially if they are similar to the current offence.

Mitigating Factors (Making the Sentence Lighter)

These are features that might reduce the sentence, focusing mainly on the offender’s background, level of remorse, or cooperation.

• Early Guilty Plea: A guilty plea saves time and resources for the court and victims. The earlier the plea, the greater the reduction (can be up to one-third off the sentence).
• Remorse: The offender genuinely regrets their actions.
• Mental or physical illness: If the condition contributed to the offence.
• Cooperation with authorities: Providing information that assists police.
• Clean record: Being a first-time offender.

Did you know? The Sentencing Council aims to ensure that sentences across England and Wales are applied consistently for similar crimes, reducing disparity between different courts.

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2.3.2 Sentencing Young Offenders (Specific Procedures)

Sentencing for young offenders (those aged 10-17) is carried out primarily in the Youth Court. The focus, as noted above, is overwhelmingly on rehabilitation.

Types of Sentence for Young Offenders

Custodial Sentences for Youth

Custody is only imposed as a last resort when the offence is very serious or the young person has repeatedly failed on community sentences.

• Detention and Training Order (DTO): This is the main custodial sentence for 12 to 17-year-olds (and 10/11-year-olds if persistent offenders). Half of the sentence is spent in custody (e.g., a secure centre), and the other half is spent in the community under supervision.
• Section 90/91 Sentences: For the most serious crimes (e.g., murder), young offenders can receive a sentence of detention "at Her Majesty’s pleasure" (for murder) or a set period (for other serious offences).

Community Sentences for Youth

These are highly structured and focused on tackling the root causes of the criminal behaviour.

• Youth Rehabilitation Order (YRO): This is the equivalent of the adult Community Order. It is highly flexible and can include requirements like education programs, drug treatment, or supervision.
• Referral Order: Mandatory for most first-time youth offenders pleading guilty. The young person must attend a Youth Offender Panel meeting, agree on a contract of actions (e.g., writing apology letters, attending school), and work with the panel for 3 to 12 months. This is focused entirely on Rehabilitation and Reparation.

Financial and Discharges for Youth

• Fines: Can be imposed, but the amount is limited for young people.
• Absolute/Conditional Discharge: Used as per adult sentencing, but often more commonly because the primary aim is often diversion away from the criminal justice system.

Parental Responsibility in Youth Sentencing

A unique aspect of youth sentencing is the involvement of parents or guardians. The court can make several orders to enforce parental responsibility:

• Binding Over: Parents can be ordered to ensure their child complies with the requirements of a sentence (e.g., attending appointments). If the parent breaches this, they can be fined.
• Attendance: Parents may be required to attend court hearings and certain aspects of the sentence (such as the Youth Offender Panel).
• Payment of Fines: If a young person is fined, the court usually orders the parent or guardian to pay the fine, recognizing that the young person likely has limited financial means.