Adult Sentencing

The courts power to sentence is contained in two acts:

• power of criminal courts (sentencing) act 2000
• criminal justice act 2003

There are four types of sentence

• custodial (prison)
• community based sentences
• fines
• miscellaneous (bans)

Custodial Sentences

• life sentence - term of years
  • mandatory (murder) ranging from full life down to 12 years
  • discretionary; can give life but don't have to (manslaughter, ****, robbery)
  • extended sentences for certain sexual or violent offences. offender given custodial sentence and further period of time when at liberty on licence (sexual offences 10 years extension, violent offences 5 years extension)
  • suspended sentences
  • home detention curfew

Community Sentences

• cja created a single community order which can be given to an offender aged 16+. this contains a possible range of requirments including
  • unpaid work required, activity requirement, programme requirement, prohibited activity, curfew requirement, exclusion requirement, drug or alcohol rehabilitation, supervision

Fines

• magistrates court £500 max
• unlimited in crown court (rarely used)
• large number of defendants imprisoned for non-payment
• attatchment of earnings order can be made on earnings
• clamp vehicle until fine is paid

Miscellaneous

• binding over
• conditional discharge
• absolute discharge
• compensation and restitution orders
• deprivation and forfeiture orders
• deferred sentences
• disqualification from driving
• anti-social behaviour orders

Binding Over

• binding over to be of good behaviour
• can be made against a person who has 'breached the peace'
• must put up a sum of money which is lost if break undertaking
• usually for one year

Conditional Discharge

• 10 years +
• found guilty of offence but no action taken unless offender commits another offence within specified time of up to 3 years

Absolute Discharge

• 10 years +
• defendant is found guilty but no action taken at all
• generally made where defendants conduct was wrong but no reasonable person would blame them

Compensation and Restitution Order

• courts can order defendant to pay his victim a sum of money in compensation
• if the defendant still has victims property they can be ordered to give it back in restitution

Deprivation and Forfeiture Orders

• courts can order the defendant to be deprived of property eg. car
• proceeds of crime act 1995; can take profits of crime from criminal up to 6 years before conviction

Disqualification

• most common punishment for motoring offences (drink driving)
• can be disqualified for non-motoring offences (burglary is they used a vehicle to assist crime)

Deferred Sentences

• courts can defer passing a sentence for up to 6 months
• cja 2003 states that defendant can be made to comply with any requirements as to conduct in that time
• given in cases where defendants circumstances are likely to change

Anti-Social Behaviour Orders

• s1 crime and disorder act 1998
• local authorites and police may apply under civil procedures to magistrates court for asbo
• can be ordered as part of a criminal sentence
• breach of asbo can lead to fine or imprisonment

Advantages

• protects the public from dangerous criminals as they can't commit crimes whilst in prison
• argued that prison can give opportunity to rehabilitate the offender

Disadvantages

• prison is only used where really necessary as stated in the cja, however there are many in prison who shouldn't be eg. failure to pay fines
• prison conditions are very poor in many prisons which lead to an increase risk of suicide
• prisons are very expensive
• prisons are overcrowded
• can be argued that prison punishes the innocent eg. family

Advantages

• new single community order with nay combination of requirements allows sentences to be tailored to the individual
• much cheaper than custodial sentences to administrate and less disruptive to family life
• more likely to have an element of rehabilitation and reparation for the victim or society
• statistics show that 44% of offenders given community based re-offend compared to 56% of those given a custodial

Disadvantages

• community sentences require the consent of the defendant and are not suitable for the more dangerous offenders
• victims don't perceive this type of sentence as justice and more of an easy option
• curfews and tagging seem as a real alternative to prison but criminals see it as a 'badge of honour'

Mandatory Sentences

The government have taken away the discretion of judges to set minimum sentences for murder by catergorising murderers and fixing minimum sentences in the cja

Category One: multiple murders, child killers, terrorist murders = actual life

Category Two: police and prison officers, murders with sexual or racial motives = starting point 30 years

Category Three: other murders = starting point 15 years

Minimum Sentences

Powers of the criminal court (sentencing) act 200 as amended by the cja laid down minimum sentences

• an automatic life sentence for a second serious sexual or violent offence
• a minimum 7 year prison sentence for third time trafficking in class a drugs
• a minimum 3 year prison sentence for third time domestic burglary (maximum is 14 years)
• a minimum 5 year prison sentence for possession of prohibited weapons (maximum is 10 years)

Custodial Sentences

A custodial sentence can only be imposed if;

• the offence is so serious that only a custodial sentence can be justified
• the offence is a violent or sexual one and the court believes that only a prison sentence would adequatley protect the public
• the offender refuses to comply with the requirements of a community order

a pre-sentence report must be prepared by the probabtion officer containing background information about the offender, this will assist the judge in selecting the appropriate sentence

Dangerous Offenders

the cja has introduced a new scheme for the sentencing of dangerous adults, those who have a specified sexual or violent offence. release of the dangerous offender is at the discretion of the parole board, those who are most dangerous may be kept in for an indeterminate period

The Tariff Principle

this is a system based on treating like cases alike. this doesn't mean there is just one sentence available for a crime but a range of penalties within which the sentence for different factual situations will fall

Aggravating and Mitigating Factors

Aggravating (factors that go against defendant)

• previous convictions; behaviour in court; if offender was in a position of trust; not complying with bail conditions and court hearings; age; premeditated crime; if victim is vulnerable or mentally ill; if offence was racial or sexual; more than one victim; if victims suffered torture; if defendant is gang leader

Mitigating (factors that go in favour of defendant)

• no previous convictions; showing remorse; background of offender; whether there is a chance of rehabilitation; age; early 'guilty' plea takes off a third of sentence; circumstances of the offence; whether defendant was provoked

Section 142 of cja states that "any court dealing with an adult offender in respect of his offence must have agreed to the following purposes of sentencing;

• the punishment of the offender
• denunciation where society expresses its outrage at the offence committed
• the reduction of crime by
  • deterrence both general and on the individual
  • rehabilitation
• protection of the public
• the making of reparation by offenders to persons affected by their offence"

Punishment (retribution)

• the offender deserves punishment for their acts. it doesn't seek to reduce crime or alter the offenders behaviour. concerned only with the offence that was committed and making sure punishment inflicted is in proportion

Denunciation

• this is society expressing its disapproval of criminal activity. a sentence should indicate both to the offender and to other people that society condemns certain types of behaviour. it shows people that justice is being done

Protection of the public (incapacitation)

• the punishment must serve a useful purpose. it serves a purpose for society as a whole, or that it will help the offender in some way; in some way the offender is made incapable of re-offending

Deterrence

• individual deterrence is intended to ensure that the offender does not re-offend, through fear of future punishment
• general deterrence is aimed at preventing other potential offenders from commiting crimes

Rehabilitation

• to reform offenders behaviour; individual sentence or community sentence

Reparation

• repayment/reparation to victim or to community; compensation order, unpaid work or reparation schemes