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The main aims of sentencing are set out in the Criminal Justice Act 2003. The 2003 Act addresses other matters but importantly it sets out, for the first time in a statute, the aims or as the Act says the 'purposes' of adult sentencing. They include the punishment of offenders, crime reduction, reform and rehabilitation of offenders, public protection and reparation by the offenders to the people affected by their offences. It will be these five purposes that the court will have to take into account when the offender is 18 or over at the time of conviction.
There are some important exceptions spelt out in the 2003 Act and these include the aims of the youth justice system in the case of persons under 18. These are contained in the Crime and Disorder Act 1998. The Act established the prevention of offending as the principal aim of the youth justice system, and placed a statutory duty on everyone working in the youth justice system to work towards that aim. Another exception is where the penalty is fixed by law e.g. in the case of murder a mandatory life sentence is prescribed. In the case of some offences a custodial sentence might also be handed down.
The concept that the defendant should be punished is not new. The law recognises that society needs to see that there is retribution for the criminal behaviour which society finds unacceptable. Law abiding citizens see it as a necessity, understood to be a form of pay back for the bad behaviour of the offender. It is the closest we get to the notion of revenge.
Closely associated to the aim of punishment or retribution is the principle that the punishment must fit the crime. If the punishment does not fit the crime and it is seen as too lenient, for example, it may be regarded by the families of victims as an indication that the victim has not received 'justice'. Their view would be that the injury or harm to the victim has not been properly recognised by the criminal justice system. In recent years there has been a lot said by victim support groups to suggest that the system does not adequately deal with the needs of victims and their families. At the same time the criminal process does protect or safeguard the rights of the defendant during the time of the investigation and detention process, through to the trial. Sara Payne, whose daughter died at the hands of Ray Whiting, has been very vocal on this issue, both as the Victim's Champion and as a grieving mother.
Consequently punishment is said to be based upon the concept of proportionality or 'just desserts'. The more serious the offence – the harsher the punishment. One of the reasons for this is to demonstrate that the sentence reflects society's sense of outrage about what has happened in order to show wrongdoers that such behaviour will not be tolerated in the future.
One of the primary aims of sentencing has always been to reduce crime. It does this by sending out a clear signal to the community that if anyone else does something similar they can expect the same sort of punishment. The courts use sentencing as a deterrence aimed at an individual or in a more general way.
In the case of an individual they may wish to deter the defendant from re-offending by handing out a particularly harsh sentence or by holding a punishment over them, through the means of a suspended sentence, should they get into trouble again.
A general deterrence may be used where the court wishes to deter others from committing similar crimes. In these circumstances they hand out a severe sentence as a warning to others. In some cases the deterrence approach may be aimed at certain types of crime which might be prevalent in a particular area.
Rehabilitation is normally aimed at young offenders in the hope that they are young enough to change and mend their ways. Rehabilitation is an important part of sentencing and the aim is to stop the young person from re-offending. This can take many forms and may consist of the offender receiving training or joining an education programme. The rehabilitation may be directed at their behaviour and challenge their actions to show them that there are other ways of achieving without resorting to crime.
Rehabilitation looks at the ways in which an individual can be encouraged to reform. It is seeking to break the cycle of offending behaviour which is so expensive to society in terms of public services and resources.
The matter of rehabilitation has been made a current issue for debate following the former Justice Secretary, Kenneth Clarke's, ' revolving door' speech in which he spoke strongly about the need to stop the never ending circle of crime. Mr Clarke was referring to the statistics which appear to show that some 60% of persons who receive a short term prison sentence go on to re-offend when they are released. The significance being that short term prison sentences are not only costly but seemingly ineffective in preventing re-offending.
The possible reason why short term sentences may be ineffective is that prisoners will not be in prison long enough for any rehabilitation programme to work and the sentence is not seen as harsh or challenging enough to bring about a change in behaviour. The individual is obviously prevented from offending whilst in prison and a custodial sentence may be effective in that sense, but, according to the statistics, this is only a short term 'fix'.
Custodial sentences are a way of protecting the public in the sense that the defendant is incapacitated whilst in prison but, as we have just seen, statistics show that this is only a short term solution as high levels of re-offending are a real concern even among the judiciary.
Finally reparation is also an aim of sentencing. Reparation means that the courts are enabled to order that the defendant pays compensation directly to the victim or indirectly to the community to make amends for their actions. It is aimed at helping the offender understand the consequences of their actions and take responsibility for them. The Proceeds of Crime Act 2002 was created to tackle organised crime. It gives the police the power to seize cash and assets such as cars and houses bought by criminals through the proceeds of their crimes. The money recovered in this way can be used for community projects and to help to fund further investigations.
The purpose of community orders, whereby the offender completes a set number of hours carrying out unpaid work in the community, is a means by which the offender can pay back something to the community for what they have done. The type of work varies but could include such things as cleaning off graffiti or community work.
A range of matters will be taken into account when sentencing an individual. These might include the seriousness of the crime, the offender's previous record, any motive, whether the defendant entered an early guilty plea and the sentencing guidelines or any tariff that applies to the offence. Let's look at each in turn.
The seriousness of what the defendant did is an obvious factor to think about when considering what the appropriate punishment might be and there are a number of ways of measuring the seriousness of the offence.This might include any lasting harm or injury to the victim, not only physical harm but also emotional harm or trauma. The defendant may have committed a series of offences and this may have to be taken into account. Other aggravating factors may include the question of whether the defendant used force or violence at the time the offences were committed or whether the defendant's victim was particularly vulnerable as in the case of the elderly or infirm. The use of a weapon is likely to be seen as an aggravating factor, making what the defendant did more serious.
There are some offences which are considered to be so serious as to raise the issue of how best to protect the public from harm or danger. Prior to the Legal Aid, Sentencing and Punishment of Offenders Act 2012 the courts may well have considered that in such situations, the only safe option was to hand out an indeterminate sentence with a recommendation that the defendant serves a minimum term before being eligible for release.
Sentences of Imprisonment for Public Protection (IPPs), sometimes known as indeterminate or indefinite sentences, were created by the Criminal Justice Act 2003 and started to be used in April 2005. An example of this form of sentencing can be found in the case of the nursery worker Vanessa George who abused children in her care. She was given an indefinite sentence and, although the minimum term set by the trial Judge was 7 years, he warned her that she may spend the rest of her days in prison. Vanessa George's co-defendant, to whom indecent images were sent, was also given an indeterminate prison sentence.
The problem was that these IPPs were used too widely and were seen as an infringement of human rights. The Legal Aid, Sentencing and Punishment of Offenders Act 2012 brought about the abolishment of IPPs and introduced new extended sentences for criminals convicted of serious sexual or violent offences.
This new Extended Determinate Sentence has a custody period and an extended licence period. Offenders receiving this sentence must serve a minimum of two thirds of the custody period. If the custodial part of the sentence is less than 10 years, release is automatic at the two thirds point. A sentence of more than 10 years means the offender will have to go to the Parole Board before being released.
The licence runs to the end of the extension period. So, if someone is released at the two thirds point, they are on licence for the rest of the custody period and the whole of the licence period. This does not affect people already sentenced.
The defendant's record, whether of good character or otherwise, is likely to be taken into account when sentencing. We usually hear about the defendant's previous record and it is only right that this is taken into account, as it could be that the individual has not responded to earlier sentences aimed at rehabilitation and reform. Similarly, it could be the defendant's first offence and this may mean that the court are more likely to hand out a non custodial sentence whereas an habitual criminal may expect to go to prison.
If there are any social reports about the defendant's background then the the court may well ask to see and consider such reports prior to sentencing. If there is no such report into the background of the accused and the trial raised issues about drug taking or vulnerability, then the court is likely to ask for such a report to be made available.
Criminal liability does not depend upon the prosecution proving that the accused had a motive in order to secure a conviction but motive may be a relevant factor when it comes to sentencing. Such motives as personal gain and greed will count against the offender, as will preying upon the elderly or vulnerable for financial gain.
An early plea of guilty will obviously signal to the court that the accused was prepared to acknowledge responsibility for the wrongdoing. An early plea also saves tax payer's money in that an expensive and time consuming trial may be averted. As a result the court may discount the sentence by up to one third and this will be explained by the Magistrate or Judge at the time of sentencing.
A sentence may be prescribed by statute and the Magistrates or Judge will obviously need to be aware of the sentencing range available to them. There will be a maximum and a minimum to consider. A judge, when imposing a life sentence, is required to set a minimum period (the tariff). This period of time must expire before the Parole board can consider whether it would be safe to release the prisoner on licence. Sentencing guidelines set out the tariff, minimum period of time, for different types of killing in the case of murder for example the use of knives, firearms etc.
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