What will I get? It is one of the most common questions that we get asked, and for many clients avoiding a prison sentence becomes a key priority. Sentencing is said to be an art rather than a science and every case is different, but our expertise and experience allows us to make a real difference to every case we handle. What you will get is by no means preordained. There is much that can be done. This sections provides you with information about how the sentencing process works and what sort of sentences are imposed for these offences.
In a Magistrates Court sentence will be decided by three magistrates or a single District Judge. The maximum sentence is 26 weeks in prison per offence, and a total of 52 weeks in prison overall. If the powers of the Magistrates are not enough then a person will be sent to the Crown Court, where a Crown Court Judge will decide sentence. A Jury never decides the sentence to be imposed.
In all sentencing cases there are essentially three types of sentence available; a fine, a community order or a prison sentence. If a person would otherwise be given a prison sentence of 2 years or less then the prison sentence might be suspended. This means the person will not actually go to prison as long as they stay out of trouble and comply with other community requirements.
If a person pleads guilty they will receive a discount on their sentence. This is because it saves time, money and hassle if those people who are guilty plead guilty. A person who pleads guilty straight away will usually receive a discount of one third. A person who pleads not guilty top start with but changes their plea later might receive a discount of 10% or 20%.
The Sentencing Guidelines Council publishes Sentencing Guidelines to help every court impose consistent sentences for like offending. The court must usually follow these guidelines, although the guidelines allow for sufficient flexibility to ensure that justice and fairness can be done to each case. The guidelines work by giving a ‘starting point’ sentence and then a sentence range for each category of offence. This is the ballpark sentence for each level of offence within the particular type of offending.
The seriousness of each offence will always be judged by the harm caused and the culpability of the offender. Thus the most serious offences will be those where both the harm caused to a victim or society and the culpability of the offender was at the highest level for the type of offending in question. The guidelines therefore produce a matrix or or grid of typical sentences for each type of criminal offence, with categories of Harm and Culpability to be considered. For example, in an adult sexual assault case, the highest category of harm will involve cases where there has been severe psychological or physical harm, abduction, violence or forced entry to the victim’s home. Cases which do not involve those factors will have a lower level of harm. The highest level of culpability will be cases with a significant degree of planning or where there been a group offence or recording of the offence. Therefore a person who sexually assaults a victim using violence or abduction, and who plans and records the offence will attract the most serious type of sentence.
How to interpret the guidelines, and how to understand what types of offending are properly described as harm or culpability factors is a highly specialist and expert process.
Once the Court has established the appropriate category or starting point sentence, there will then have to be adjustments up or down for aggravating or mitigating features of the offence and offender. Common aggravating features of sexual offences might include the timing or location of the offence or the use of a weapon. Common mitigating features might include a demonstration of remorse, previous good character, age or lack of maturity or a demonstration of steps taken to address offending behaviour. Personal mitigation will also come into the equation, such as the loss of reputation, employment, family, caring responsibilities or mental health.
The Court will then reduce the appropriate sentence if a person pleaded guilty, to reach a conclusion about the proper sentence to be imposed.
If the conclusion of the court is that a short or medium length custodial sentence is necessary, the court may have to go on to consider whether that sentence can either be suspended or replaced with an appropriate community order to include a Sex Offenders Treatment Program or other therapeutic course. This is often an important feature of sentencing sexual offences.
In more serious cases, usually those where a sentence of more than 4 years would otherwise be imposed, the court may have to consider the offender is considered ‘dangerous’, to justify imposing an extended sentence.
The court will always have to ensure that the totality of the sentence is proportionate to the overall offending. This is called the totality principle and acts to make sure the total level of a person’s criminal behaviour is fairly reflected in the sentence imposed. This can lead to the imposition of either concurrent or consecutive sentences for a person who faces multiple charges.
Ancillary orders are other orders of the court made at the point of sentence and they can be very important and involved in sexual offence cases. Ancillary order may include a Sexual Harm Prevention Order, a Banning order prohibiting a person from working in certain jobs, Compensation and Deprivation or Confiscation Orders. Although a person is often understandably focused on the substantive sentence, these ancillary orders can make a real difference to a person’s life going forward, and need to be treated with careful attention.
At Mowbray Woodwards we believe in thorough preparation for each sentencing exercise, being prepared to evidence key features of mitigation and enhance our submissions through effective documentation, references or other evidence. Understanding the potential end point of the process is crucial from the beginning to make sure that a client makes the very best decisions at each step of the process.
For confidential and impartial advice call 01225 485700 or email firstname.lastname@example.org