Sentencing Theories

A sentence is the punishment given to D following a conviction, and the type of sentence can vary depending whether D is an adult or youth offender. The sentence that can be given depends on the government of the time and their priorities, which are affected by current events and media pressures.

Both adult and youth can receive the same type of sentence, but they will vary in terms of their requirements and length.Where a person pleads guilty or is found guilty, the courts must decide what sentence to impose. Judges and magistrates have a fairly wide discretion as to the appropriate sentence they select, although subject to some restrictions.

MAGISTRATES COURT:

•  6 months in prison (12 months for consecutive sentences)/£5000 fine
• Youth Detention and Training Order up to 2 years.
• CJA 2003-proposals to increase this to 12 months for one offence and 15 months for two

CROWN COURT:

• Unlimited fine
• Life imprisonment
• The only restrictions come from the Act of Parliament covering the offence:
•  Murder: Murder (Abolition of Death Penalty) Act 1965: mandatory life sentence
• GBH with intent: s.18 Offences Against the Person Act 1861: discretionary life sentence

The tariff (length) of the sentence will be determined by the court, after looking at the following factors:

 Age of offender

 Seriousness of offence

 Likelihood of further offences being committed

 Extent of harm likely to result from further offences

CROWN COURT: Unlimited fine Life imprisonment The only restrictions come from the Act of Parliament covering the offence: Murder: Murder (Abolition of Death Penalty) Act 1965: mandatory life sentence GBH with intent: s.18 Offences Against the Person Act 1861: discretionary life sentence

The tariff (length) of the sentence will be determined by the court, after looking at the following factors:

•  Age of offender
• Seriousness of offence
• Likelihood of further offences being committed  
• Extent of harm likely to result from further offences

When passing sentence, judges/magistrates not only look at the available sentences, they also have to consider what they are trying to achieve with the punishment. Section 142 Criminal Justice Act 2003 states that: “Any court dealing with an [adult] offender in respect of his offence must have regard to the following purposes of sentencing –

• (a) The punishment of offenders,
• (b) The reduction of crime (including its reduction by deterrence),
• (c) The reform and rehabilitation of offenders,
• (d) The protection of the public, and
• (e) The making of reparation by offenders to persons affected by their offences.”

It is often the case that people assume the one aim of sentencing is to punish individuals, but other factors need to be taken into account, such as the effect on the community and the long term rehabilitation of an offender. From this we can derive six main aims or philosophies behind sentencing.

RETRIBUTION        DETERRENCE        DENUNCIATION      INCAPACITATION           REFORM AND REHABILITATION         REPARATION

Retribution rests on the notion that if a person has knowingly done wrong, they deserve to be punished. Retribution does not seek to reduce crime or alter offender’s behaviour. It is the taking of revenge on behalf of V and society “because the wrongdoer deserves it” (Lord Denning 1953).

The crudest form of retribution is expressed in the saying “AN EYE FOR AN EYE, A TOOTH FOR A TOOTH AND A LIFE FOR A LIFE.” This was the justification for the death penalty for murder, and the occasions where some judges in the USA have allowed victims of burglary the right to go, with a law officer, into the burglar’s home and take items up to the appropriate value of the stolen items. This also justifies the case in Iran where an ‘eye for an eye’ was taken quite literally.

“Crime, Justice and Protecting the Public 1990”, repeated reference was made to the need for sentences to achieve “just desserts”, i.e. matching the harm done. Indeed, making punishments achieve retribution was a high priority during the last years of the Conservative Government with Michael Howard as Home Secretary.

However, Jonathan Aitken, following his stay in prison for perjury, has called for more reform over retribution.

Nonetheless, retribution still has its place in the sentencing framework of England and Wales as it is sometimes the only aim suitable for some offenders.                                    R v Home Secretary ex parte Hindley [2000] “....there are cases where the crimes are so wicked that even if the prisoner is detained until he or she dies it will not exhaust the requirements of retribution.”

Retribution is the aim behind having whole life tariffs attached to a sentence eg.                  R v Wright [2008] - Steve Wright was unanimously found guilty of being the Ipswich serial killer where 5 women lost their lives. The judge said “This was a targeted campaign of murder. It is right that you should spend your whole life in prison.”

R v Bellfield [2008] -  Levi Bellfied killed 2 women.  He was also found guilty of attempting to murder an 18 year old. In 2008, Bellfield was subsequently given another whole life term for abducting and killing Milly Dowler.

Jeremy Bamber, convicted for multiple murders took an appeal to the ECtHR arguing that that ordering someone to spend their entire life in prison without parole was an Article 3 breach-degrading and inhuman treatment. Despite the court concluding it was not "grossly disproportionate" Bamber then appealed to the Grand Chamber and we await the outcome.

Advantages

• A deterrent
• Protects the public
• Justice for families
• Gives public faith in criminal justice system
• Takes away liberty which is the worst thing a country can legally do.

Disadvantages

• Creates feelings of revenge
• No literal eye for an eye for every crime
• Miscarriages of justice.

This theory views crime as a type of harm that society wishes to eradicate. One way to do this is to use a sentence as a deterrent to prevent the commission of future crimes by deterring others.

There are 2 forms:

INDIVIDUAL/SPECIFIC DETERRENCE- This is punishing an individual offender in the expectation that he will not offend again.

GENERAL DETERRENCE-This is about showing other people what is likely to happen to them if they commit a similar crime. However, this can only really be effective if a particular crime is prevalent in the area.

Some typical offences where deterrence is appropriate include:

• o Mobile phone theft:

AGs Ref (Nos 4 and 7 of 2002) [2002] Increased the 6 month sentence to 3 and half years and stated that a custodial sentence should be imposed irrespective of age or previous character unless there were ‘exceptional circumstances’. This should range from 18 months to 3 years where no weapon was involved, and 5 years where a weapon was involved.

R v Healey [2002] Dean was sentenced to 4 years for stealing a mobile phone from a 17 year old. Judge told Healey, 23, that she regarded the street robbery as so serious to warrant an immediate custodial sentence. "The sentence I pass is to keep the public protected from you and as a deterrent to show that this type of offence will not be tolerated.”

• o Gun crime:

R v Crispin [2007] CA expressed strong views when dismissing an appeal against a sentence of 8 years for possession of a substantial arsenal of weapons . CA: “gun crime was a contemporary curse”. The unexplained unlawful possession of such weapons, even if not used, must attract severe deterrent sentences.

• o Knife crime:

R v Povey [2008] D pleaded guilty to having a bladed article , and having an offensive weapon both found in his pocket. D was aged 50 with 97 convictions one of which was manslaughter by stabbing the victim, and offences of violence. He was sentenced to 16 months on each to run concurrently. On appeal, the CA made observations about knife crime and offensive weapons generally, commenting that such offences were “reaching epidemic proportions”. The carrying of such weapons represents a public danger and courts will continue to do what they can to help reduce and, so far as practicable eradicate, the danger. It is important that the public had confidence in the criminal justice system to deal with this problem. The trial judge remarked: "...People who carry knives are going to be cracked down on ..."

Some argue however that such an “exemplary sentence” is unfair on the particular D. The Rule of Law (AV Dicey) and the interests of justice demands cases and offenders are treated alike; the person who mugs someone in a place where there has been no public outcry is no better than one who mugs when there has been. Additionally, the effectiveness of deterrence is also linked to the perceived likelihood of being caught. If the likelihood is small, maybe it’s a risk worth taking?

Even prison sentences do not always deter as it is suggested that around 50% of adult prisoners reoffend within 2 years of release. The figure is even higher for young offenders, at 70%. Deterrence requires D to consider their actions and think about the consequences. As most crimes are committed on the spur of the moment, and/or under the influence of drink/drugs, there is often little time for ‘thought’.

White Paper “Crime, Justice and Protecting the Public 1990”:  "much crime is committed on impulse, given the opportunity presented by an open window or unlocked door, and it is committed by offenders who live from moment to moment... It is unrealistic to construct sentencing arrangements on the assumption that most offenders will weigh up the possibilities in advance and base their conduct on rational calculation. Often they do not.”

General deterrence also depends on publicity. Often, newspapers tend to highlight sentences which appear too low for an offence, or too high for a trivial offence:

1. Lord Ahmed: texting whilst driving. Imprisoned for 12 weeks and served just 16 days. 

2. Edward Woollard: threw fire extinguisher off the roof of Tory HQ during student demonstrations in December 2011. Imprisoned for 2 years 8 months. 

Advantages 

• Preventative approach
• Shock factor
• Public protection
• Cracks down on crimes society wishes to condone

Disadvantages

• Rule of law- no equality- AV Dicey
• Relies heavily on publicity
• Doesn't work for impulse crimes

This is society’s disapproval of the offender’s criminal behaviour. The sentence sends a message to both D and public.. It marks the boundaries of morally acceptable conduct. Additionally, this theory is linked with deterrent sentences (mobile phone theft.) The media is often involved in expressing societal views about offending behaviour. A clear example came from the News of The World with their “Name and Shame” campaign following the death of Sarah Payne. This led to the introduction of “Sarah’s Law”, allowing controlled public access to the Sex Offenders’ Register.

Just recently, it was announced by the a governmental committee that tax avoiders should be “named and shamed” to discourage people from using legal loopholes to avoid paying their fair share.  Mugshots of convicted criminals are also planned to be published on a Government website, known as “In the Dock” in a move to name and shame offenders. Ministers hope it will boost confidence in the criminal justice system.

In response to public opinion, sometimes sentences are increased in order to demonstrate that society has become less tolerant, e.g. before 2008, if a death was caused by careless driving, the offender could only be fined. However, the Road Safety Act 2006 created a new offence: causing death by careless driving for which Sentencing Guidelines Council recommends imprisonment for this offence is most instances.

Advantages

• Maintains respect for the law
• In the public interest
• Sends a clear message of intolerance

Disadvantages

• Name and Shame-mistaken identity
• HR-Right to private family life
• Creates feelings of revenge
• No equality before the law
• No rehabilitation

Incapacitation means that in some way the offender is made incapable of re-offending. The most obvious example is by way of prison. By placing an offender in custody, they are physically prevented from committing further offences against the public and thus society is protected. (However, other people in prison are still at risk.)

Michael Howard said: "Prison works. It ensures that we are protected from murderers, muggers and rapists - and it makes many who are tempted to commit crime think twice"

While this has its merit where highly dangerous offenders are concerned, it is an extremely expensive way of dealing with crime prevention (costing on average £40,000 per prisoner per year) and, since prison is often the place where criminals pick up new ideas and techniques, it might actually be counterproductive. The obvious example of incapacitation is prison, however, others include:

• o Death penalty
• o Cut the hands off thieves
• o Driving bans
• o Curfew orders

Advantages

• Protects society
• Justice for the victim/victim's family
• Linked to retribution

Disadvantages

• Expensive
• Counterproductive-pick up new techniques

This theory aims to reform offenders so they are less likely to re-offend. The intention is to bring the offender back into society by seeking to educate and help see the error of his ways. By helping them to see the harm they have committed, it is hoped this will enable them to find other ways to make a living and spend their leisure time. It is a forward looking aim which is a particularly important element in the sentencing philosophy of young offenders.

However, Bottoms & Preston argue in “The Coming Penal Crisis” 1980 that rehabilitative sentences are fundamentally flawed:

1. They assume that all crime is the result of some deficiency/fault in the individual offender.

2. It discriminates against the less advantageous who are seen as being in need of reform whereas an offender from a privileged background is more likely to be regarded as having committed the offence as a one off, temporary slip. Punishment is therefore not dictated by harm caused, but by the offender’s background.                                          

3. It can encourage inexcusable interference with dignity and privacy of individuals: implanting electrodes in brain, hormone drug treatment for drug offenders.

Though rehabilitation may be highly effective for the young or first time offender, for hardened criminals surely it can only be seen as a “last chance”.

An example of a rehab sentence is the availability of a speed awareness course. This new scheme allows motorists caught speeding the chance to complete a workshop rather than be issued with three penalty points and a £60 fine.

One way out of a life of crime would be to get a job but a criminal record can be a real barrier. The REHABILITATION OF OFFENDERS ACT 1974 allows an offence to be considered “spent” a number of years after conviction, so that as far as an employer is concerned, the potential employee had a clean record. But the Act is heavily restricted eg.

 Imprisonment of more than 2 and a half years = NEVER

 Imprisonment of more than 6 months up to 2 and a half years = 10 YEARS

 Absolute discharge = 6 MONTHS

Advantages

• Highly effective for young/first time offenders
• Forward looking

Disadvantages

• Barrier of criminal record
• The Coming Penal Crisis-1980 problems
• No justice for the victim?

“Restorative justice” is aimed at compensating the V of the crime, usually by ordering the offender to pay a sum of money to V or to make restitution. Some projects have also included bringing together D and V to make direct reparation, so that they can make contact. This gives V the opportunity to tell D how they have been affected by the crime, get an apology and have a say in what D has to do to put right the harm..

Following publication of “Restorative justice: helping to meet local need 2004”, the Criminal Justice Minister said: “Restorative Justice is about helping every victim get over the crime they’ve suffered. When a victim chooses to meet the offender it often helps them feel safer and more satisfied that justice has been done. It can also be part of the rehabilitation process for offenders themselves.”

The idea of restitution includes making reparation to society as a whole, usually in the form of community punishment orders where offenders are required to work a certain amount of hours on a community project whilst being supervised. Sherman and Strang 2007 report on restorative justice concluded that many violent criminals are less likely to commit further offences after participating in a restorative justice programme; Vs symptoms of post-traumatic stress disorder are reduced, partly because meeting D demystifies the offence; and, restorative measures also tend to be cheaper than others.

Advantages

• When a victim chooses to meet the offender it often helps them feel safer and more satisfied that justice has been done.
• Rehabilitation process for some offenders
• Cheaper than other measures
• Reparation to society as a whole
• Defendant sees how the victim has been affected.
• Evidence for defendants less likely to committ further offences.

Disadvantages

• Involves the participation of both parties
• Defendant may not pay the sum of money