Structured Sentencing: Sentencing Guidelines in Common Law Jurisdictions

Paper for the Centro de Estudios de Derecho Penal y Proceso penal Latinoamericano

Gottingen 2017

Julian V. Roberts, Faculty of Law, University of Oxford

Over the past 40 years, many Western jurisdictions have proposed or implemented reforms
designed to provide more structured sentencing. These include: presumptively-binding, grid-
based guidelines (e.g., Minnesota; Pennsylvania; Oregon); offence-specific guidelines which
permit considerable discretion within the guideline (England and Wales; Scotland; New
Zealand; South Korea); judicially-based, advisory guidelines providing ‘Starting Point’
sentences (Uganda; China); and sentencing statutes which identify important principles to be
followed at sentencing (Sweden; Finland; Israel). Notwithstanding this diversity of approach,
common goals of all reform initiatives include the following:
• promoting greater consistency in sentencing outcomes;
• promoting more proportional outcomes;
• Promoting greater transparency and predictability;
• Promoting greater public confidence in sentencing.
The experience in countries with guidelines carries lessons for jurisdictions where courts
exercise great discretion at sentencing with only limited guidance from appellate courts. A
nation considering introducing greater structure at sentencing has a range of options from
which to choose, running from the relatively restrictive sentencing grids used across the US,
to judicially derived guidelines such as those found in China, Uganda and other countries.
The US approach has generally been rejected by other countries; to date no jurisdiction
outside the US has adopted a two-dimensional sentencing grid. Where then, might a common
or civil law jurisdiction turn if it seeks a model to structure judicial discretion at sentencing?
Sentencing guidelines have been evolving in England and wales for over a decade now (see
Ashworth and Roberts, 2013; Roberts and Ashworth, 2016). The English experience
therefore offers some lessons for other jurisdictions contemplating introduction greater
structure for courts at sentencing. Although these guidelines derive from an adversarial,
common law country, the concepts they embody can equally be applied to civil law countries.
Overview
This chapter reviews the guidelines in England and Wales. In Part I discuss recent
international developments in the area of structured sentencing to provide context for the
English experience. Part II describes the English sentencing guidelines which provide the
principal alternative to the US sentencing guidelines. Part III summarises research findings
relevant to the four policy goals identified above.

I. Structuring Judicial Discretion at Sentencing

How much discretion should judges have at sentencing? If they have too much, disparity of
outcome will be the inevitable consequence. On the other hand, removing their discretion
entirely will result in injustice. The solution to this problem lies in the concept of sentencing
guidelines which provide direction to courts but without unduly restricting them. The US-
style grid based guidelines are only one form of sentencing guidelines; other models exist.
Several countries have attempted to structure judicial discretion at sentencing in different
ways. These other forms of guidance represent alternative approaches to promoting
consistency at sentencing. When most people think about sentencing guidelines, the systems
found across the United States come readily to mind.

Sentencing guidelines have been evolving in that country for over 30 years now, at both the
state and federal levels. Most states have a formal sentencing guidelines scheme to assist
judges at sentencing. The best-known guidelines model involves a two-dimensional
sentencing grid – much like a mileage chart which shows the distance between two cities.
Under a sentencing grid such as the one used in Minnesota, the two dimensions are crime
seriousness and criminal history. In order to determine the sentence that should be imposed, a
court selects the appropriate level of seriousness, and the appropriate criminal history
category. Where the seriousness row and the criminal history column intersect, there is a grid
cell containing a relatively narrow range of sentence length.

If the guidelines are presumptively binding (some states use advisory guidelines, and the US
federal guidelines are now considered advisory following several judgments from the US
Supreme Court), the court must impose a sentence within the range found in the guidelines
grid. In the state of Minnesota, a court wishing to impose a more or less severe sanction than
that which is prescribed by the guidelines must first find “substantial and compelling”
reasons to justify what then becomes a “departure” sentence, namely one outside the official
guideline ranges. Only a minority of sentences imposed fall outside the guidelines – in the
interests of consistency judges are encouraged to remain within the guidelines. Sentencing
grids of this kind are found in a number of states including Minnesota (e.g., Minnesota
Sentencing Guidelines Commission, 2016).

Sentencing Reform in Other Common Law Jurisdictions

Sentencing guidelines do not have to be numerical in nature, providing a specific range of

sentence for each crime. A number of Scandinavian countries have developed what may be
termed “guidance by words” (see also Ashworth (2009) for discussion of techniques to
reduce disparity through increased guidance). This approach to structured sentencing
involves the legislature placing relatively detailed guidance in a sentencing law. For example,
in Sweden there is a Penal Code which identifies proportionality as the primary rationale for
sentencing, and requires courts to assess the seriousness of the crime in order to determine

sentence. A number of mitigating and aggravating factors are also specified in the Swedish
sentencing law, in order to guide judges in the determination of sentence. The law also
contains guidance for courts with respect to the choices they should make between different
sentencing options (for further information, see von Hirsch and Jareborg, 2009). The
advantage of the “guidance by words” approach is that it leaves courts with considerable
flexibility to determine an appropriate and proportionate sentence. On the other hand, this
may result in much greater disparity than would be the case in a jurisdiction such as
Minnesota where judges have to follow detailed and prescriptive sentencing guidelines.

Progress towards developing sentencing guidelines around the world has been fitful and slow,
although many jurisdictions appear headed towards adopting more structured sentencing for
courts. The Law Commission of New Zealand developed a comprehensive and principled set
of guidelines but the legislature in that jurisdiction has yet to proclaim the necessary
legislation to permit implementation. Other jurisdictions – including Scotland, Western
Australia, Northern Ireland, Canada and Israel -- have explored the use of guidelines for
sentencers, but so far have not actually adopted a formal scheme. Following
recommendations from a Sentencing Working Group (in 2010) Northern Ireland held a
consultation on the possible options for a form of sentencing guidelines. In 2012 the Israeli
Knesset approved a new sentencing law. This law adopted parts of a previous Bill which
provide for ‘guidance by words’ but without establishing the guidelines authority which
would have been empowered to develop and issue sentencing guidelines scheme. Under the
new legislation courts are required to devise their own proportionate sentence range for the
case being sentenced, and to provide reasons if they impose a sentence outside this range for
the purposes of rehabilitating the offender (see Roberts and Gazal-Ayal, 2013. South Korea
has also launched a guidelines scheme (see Park, 2009). Several jurisdictions (including New
South Wales and the state of Victoria in Australia) have created advisory bodies which
disseminate information about sentencing but which do not actually disseminate guidelines
(see Freiberg and Gelb, 2008). Scotland is the latest jurisdiction to create a sentencing council
with a view to developing sentencing guidelines. The Scottish Sentencing Council will begin
issuing guidelines in 2017.

Countries without Sentencing Guidelines

Finally, some countries – Canada, South Africa, Ireland, and India for example – have
resisted all appeals for greater structure at sentencing. Although scholars and practitioners in
those countries have long advocated creation of some kind of guidelines scheme, legislatures
in these countries have so far rejected calls to introduce sentencing guidelines. The
consequence is that judges in these jurisdictions continue to impose sentence much as they
have for decades, with the only guidance coming from the appellate courts. This approach to
sentencing may be termed “judicial self-regulation” (see Ashworth, 2009). The limitation of
this approach is that higher courts hear only a small proportion of cases on appeal, which
means that the opportunities for guidance are limited. When a court of appeal does hear a
3

sentence appeal it does not always give general guidance, so courts remain free to develop
their own sentences.

II. Sentencing Guidelines in England and Wales

Sentencing guidelines have been evolving for over a decade now in England and Wales and
definitive guidelines now exist for most high frequency offences. The English guidelines
represent the best developed alternative to the US schemes, and have been adopted, in
modified form, in several other jurisdictions (see below). The development of the guidelines
accelerated with passage of the Coroners and Justice Act 2009. This Act introduced a number
of changes to the sentencing guidelines in England and Wales. The Act created a new
statutory body – the Sentencing Council for England and Wales – to replace the previous two
organizations (i.e., the Sentencing Advisory Panel (created in 1998) and the Sentencing
Guidelines Council (in 2003). The new Council retains a judicial majority among its 14
members. The Council has issued a number of guidelines which assume a rather different
structure from the SGC Guidelines. The first such guideline was issued in March 2011. Since
then the Council has issued other offence-specific guidelines -- following a slightly different
model -- as well as one ‘generic’ guideline relating to sentencing in multiple conviction
cases. (All guidelines are available at: http://sentencingcouncil.judiciary.gov.uk/).

How do the English sentencing guidelines differ from the US based schemes? The principal
difference is that guidelines in England and Wales promote consistency by requiring
sentencers to proceed through a series of steps – rather than by prescribing a range of
sentence length and discouraging sentences outside the range (the general approach across the
US). This represents a different approach to promoting consistency in sentencing.

The second difference between the English and the US guidelines is that Sentencing
Commissions across the US devise and issue a complete package of guidelines encompassing
all offences --- usually, as noted, within a single guidelines grid. The English Sentencing
Council issues offence-specific guidelines sequentially, for each offence category (such as all
assault offences, or drugs crimes). This means that it takes longer for guidelines to be
available for all offences. The US guidelines are generally issued within a single volume or
manual; in England, the guidelines are issued in self-contained individual offence category
format. Finally, the English Council, unlike the Sentencing Commissions across the US, has
also issued a number of generic rather than offence-specific guidelines. These apply to all
offence categories. The generic guidelines issued to date by the Council include ones
addressing the sentencing of multiple offences, the levels of reduction appropriate when the
defendant pleads guilty (discussed later in this chapter) and the use of different sanctions such
as custody and community orders.

Step by Step Sentencing Methodology: Assault Guideline

The English guidelines structure prescribes a series of nine steps, of which the first two are
the most critical. The idea is that if all courts follow the same step-by-step procedure,
sentencing decisions across courts should be more consistent. For the purposes of illustration
let us examine the guideline for Assault occasioning actual bodily harm (see Sentencing
Council, 2011). As with many offences for which a definitive guideline has been issued,
ABH has been stratified into three categories of seriousness. The guideline provides a
separate range of sentence and starting point sentence for each category. Step one of the
guidelines methodology requires the sentencing court to match the case appearing for
sentencing to one of the three categories of seriousness. The three categories have been
created to reflect gradations in harm and culpability, with the most serious category (1)
requiring the sentence to find greater harm and enhanced culpability. Category 2 is
appropriate if either greater harm or higher culpability is present, while Category 3 involves
lesser harm and a lower level of culpability.

Figure 1: Extract from English Sentencing Guideline for Assault Offences

Determining the Offence Category

Step One of the guideline identifies an exhaustive list of sentencing factors which should be
used to determine which of the three categories is most appropriate for the particular offender
appearing for sentencing. These factors constitute what the guideline describes as the
“principal factual elements” of the offence. Their importance is reflected in the fact that
determination of the category range is the step which will have greatest influence on severity
of sentence. For example, if the court chooses the lowest category, the most severe sentence it
should impose is a community based (non-custodial) sentence. In contrast, the next category
up has a maximum sentence of 51 weeks imprisonment. Having determined the relevant
5

category range, a court should use the corresponding starting point sentence to move towards
a sentence which will then be shaped by the remaining steps in the guideline.

Step Two: Shaping the Provisional Sentence

Step Two requires a court to “fine tune” the sentence by considering circumstances which
provide “the context of the offence and the offender”. The aggravating factors include
committing the offence while on bail or licence, while under the influence of drugs, or with
abuse of trust. The guideline factors which reduce seriousness (and which result in imposition
of a less severe sentence) include an absence of prior convictions and the fact that the crime
was an isolated incident. A diverse collection of factors is cited as relevant to personal
mitigation, including remorse, the fact that the offender was a sole or primary carer and
“good character and/ or exemplary conduct”.

After Step Two a court should proceed through the remaining seven steps of the guidelines
methodology, which may be briefly summarised. Step Three directs courts to reduce sentence
in cases where the offender has provided or offered to provide assistance to the prosecution
or police. Step Four involves the reduction for a guilty plea. Offenders who plead guilty
receive a reduction of up to one third off their custodial sentence, depending upon how early
they enter their plea. The remaining steps to be followed relate to other sentencing provisions
such as the consideration of any time that the offender spent in remand while awaiting trial.
(This time is taken off any custodial sentence ultimately imposed). The guideline steps also
require the court to give reasons for the sentence imposed, and to explain the effect of the
sentence for the benefit of the offender. Finally, courts give reasons for the sentence imposed
and in particular if they have imposed a sentence which falls outside the guidelines range.

Legal Status of English Guidelines

As noted, in many US states the sentencing guidelines are binding on courts: a judge may
depart from the guideline range if he or she finds “substantial and compelling” reasons why
the guideline sentence is inappropriate. The English guidelines are less restrictive, although
they are formally binding on courts. When sentencing offenders in England and Wales,
section 125 (1)(b) of the Coroners and Justice Act 2009 requires a court to follow any
relevant sentencing guidelines, unless it would be contrary to the interests of justice to do so.
However, courts may impose a sentence within a wide range and still remain compliant with
the guidelines. In this sense, although they are required to follow the guidelines, courts retain
considerable freedom to sentence offender. First, judges have considerable discretion within
the guidelines. Second, they may depart from the guidelines if they believe it is necessary in
the interests of justice.

III. Research on the Impact of the English Sentencing Guidelines

Although the Sentencing Council has not conducted or published a great deal of research into
the effects and impacts of its guidelines, there is now a limited academic literature on which
we can draw. This research has demonstrated modest, positive effects on both consistency
and proportionality in sentencing. I conclude with a brief discussion of an overlooked benefit
of a guidelines scheme: the increase in transparency and predictability.
Consistency and Proportionality
Academic analyses published to date suggest a positive impact on consistency across courts
and the application of the offence specific guidelines. Pina-Sanchez and Linacre (2013)
demonstrated that for a number of high volume offences, the guideline factors were being
applied in a consistent way across courts. Pina-Sanchez (2015) evaluated the impact of the
new assault guideline on variability in sentencing He conducted a pre-post analysis using the
Council’s dataset and concluded that ‘consistency improved in all the offences studied after
the new guideline came into force.’ (p. 87). Irwin-Rogers and Perry (2015) explored
sentencing for domestic burglary and their analyses ‘provided a strong indication that the
courts were sentencing in a manner that was consistent with the domestic burglary guideline
and in particular the principle that that the factors in step one of the guideline should have
more of an influence on sentence severity than the factors in step two’ (p. 210).

With respect to proportionality in sentencing, Pina-Sanchez and Roberts (2017) examined the
impact of the guidelines on a measure of proportionality. To the extent that proportionality
exists, sentences of imprisonment should spread out across the range to reflect differences
between cases in terms of their relative seriousness. If many cases attract the same sentence –
if they cluster around the same sentence – there is an absence of proportionality. The spread
of cases across the sentence range represents an empirical measure of proportionality. Pina-
Sanchez and Roberts (2017) demonstrated an increase in proportionality following the
introduction of the new assault offences guidelines. The explanation for this positive finding
is less apparent. Jurisdictions contemplating adoption of a sentencing guidelines scheme will
need to know exactly how this form of guideline enhances proportionality.
One explanation returns us to the structure of the guideline which requires courts to consider
individually a range of sentencing factors. A court sentencing offenders without a guideline
will have only submissions from the advocates to guide their application of principles and
consideration of relevant mitigating and aggravating factors. In contrast, the guidelines
require sentencers to work their way systematically through all nine steps of the assault
offences guideline. This requirement may sensitize courts to important differences between
cases – resulting in the use of a higher number of unique outcomes. As they do this, courts
should adjust the provisional sentence to reflect each relevant mitigating or aggravating
factor. This methodical and sequential approach encourages sentencers to make more fine-
grained distinctions between cases, since the provisional sentence is adjusted to reflect all
7

mitigating and aggravating relevant factors. The consequence is that a greater number of
unique sentences is employed to reflect these distinctions.
A second explanation is that sentencers simply take longer to sentence a case when applying
a guideline with nine steps. By requiring courts to consider each step, and to review lengthy
lists of aggravating and mitigating factors, the guideline may provoke a deeper examination
of the case characteristics, generating a greater degree of discrimination among cases – and
more unique sentence outcomes. Either way, the result seems to be that the guideline
encourages a deeper judicial consideration of the case appearing for sentence, resulting in a
higher number of unique sentences, and less clustering around a small number of specific
numbers. Taken together, these studies, while limited in scope, suggest the English guidelines
have had a positive effect on promoting consistency and proportionality (see also essays in
Roberts, 2015). More research is clearly needed, however.
Transparency in Sentencing
Before concluding the essay, it is worth adding some commentary on an aspect of sentencing
guidelines which is often overlooked in the debate about sentencing reform, namely the
impact on transparency. In countries without formal sentencing guidelines it is hard for
anyone other than legal professionals or criminal justice academics to know what the average
sentence is for any given offence. Sentencing statistics may be published but they are never
accessible in a way that makes it straightforward for the casual user to determine, for
example, what percentage of robbery cases are sent to prison and for how long. Similarly, the
factors that courts take into account in aggravation or mitigation are known principally only
to practitioners and sentencing scholars. The consequence is an absence of transparency and
predictability which can only undermine confidence in the courts and the sentencing process.
When a guidelines system is in place, however, there is much greater transparency. Whether
in Minneapolis, Minnesota or Manchester, England, the guidelines provide a clear indication
of whether an offender will receive imprisonment and for what period following conviction.
The clarity can be illustrated by Figure 1 which provides an extract from the guideline for
assault offences. It reveals how each category of seriousness carries a specific sentencing
range and a category starting point. In fact, the guidelines in England and Wales go much
further and provide even greater insight into sentencing as they identify the principal
sentencing factors taken into account by courts at sentencing.

Guidance regarding plea-based sentence reductions

Plea-based sentencing discounts provide another illustration of the transparency and clarity
arising from a sentencing guideline system. Although all common law sentencing systems
award discounts to defendants who plead guilty (rather than compel the State to prove the
elements of the offence in a criminal trial), the level of discount is usually hard to predict,
even for legal practitioners. Appellate courts give little guidance and much depends upon the
individual judge. In England and Wales however, the existence of a guideline makes the level
8

of plea-based reductions crystal clear to all parties. The regime can be summarised very
simply. If a guilty plea is entered at the first court appearance, the recommended sentence
length reduction is one-third. The sentence reduction then diminishes the later the guilty plea
is entered. The defendant who changes his plea to guilty on the day the trial commences
should receive a reduction of only 10% (Sentencing Council, 2017).
As can be seen in Figure 2, the guideline thus creates a sliding scale of discounts to reflect the
timing of the plea, with three clear levels of reduction. The variable of time is therefore
critical to determining the level of reduction awarded. Moreover, as can be seen in Table 1,
courts have followed the recommendations of the guideline. This table shows that in practice,
the levels of reduction awarded closely match those recommended by the guideline. The
consequence is that advocates are able to advise defendants contemplating entering a plea of
the likely effect that this will have on their sentence. Defendants in England and Wales – and
indeed all parties with a stake or interest in sentencing – are therefore much better placed than
their counterparts in other jurisdictions where the likely sentence reduction resulting from a
guilty plea is far less clear.

Figure 2: Extract from Plea-based Sentence Reduction Guideline, England and Wales

Source: Sentencing Council of England and Wales

Table 1: Actual and Recommended Plea-based Reductions

Greater 1/3 21%- 11%- 1- No Guideline

than 32% 20% 10% Reduction
1/3 Recommended
Reduction

Early Plea 9% 80% 9% 2% <1% <.05% 33%

Intermediate 3% 34% 34% 22% 6% 1% 25%

Plea
Late Plea 1% 11% 9% 24% 49% 6% 10%

Source: Roberts and Bradford (2015)

Conclusion
Sentencing represents the most complex and challenges for a court, regardless of whether
common or civil law. The wealth of potential sentencing factors and the balancing of
competing interests requires experience, training and judgement. There appears to be a
growing international consensus that guidance is necessary if principles such as consistency
and proportionality are to be maintained. The need for some form of guideline scheme is
even more pressing in jurisdictions where the statutory framework is relatively sparse,
leaving much to judicial discretion to resolve. The English guidelines represent one –
although by no means the only – way of providing additional guidance to courts at
sentencing. Although the guidelines have attracted critics they offer important lessons for
other jurisdictions, and as has been demonstrated in South Korea and the Gulf states, they can
be adapted to a range of different sentencing regimes.

References

Ashworth, A. (2009) Techniques for Reducing Sentencing Disparity. In: A. von Hirsch et al.
(eds.) Principled Sentencing. (Third edition) Oxford: Hart Publishing.

Ashworth, A. and Roberts, J.V. (2013) The Origins and Evolution of Sentencing Guidelines
in England and Wales. Pp: 1-14 in: A. Ashworth and Roberts, J.V. (eds.) Sentencing
Guidelines: Exploring the English Model. Oxford: Oxford University Press.

Canadian Sentencing Commission (1987) Sentencing Reform. A Canadian Approach. Report

of the Canadian Sentencing Commission. Ottawa: Supply and Services Canada.

Freiberg, A. and K. Gelb (eds.) Penal Populism, Sentencing Councils and Sentencing Policy.
Cullompton: Willan Publishing/ Federation Press.

10

Hogarth, J. (1971) Sentencing as a Human Process. Toronto: University of Toronto Press.

Irwin Rogers, K. and Perry, T. (2015), ‘Exploring the Impact of Sentencing Factors on
Sentencing Domestic Burglary’, in J.V. Roberts (ed.), Exploring Sentencing Practice in
England and Wales. London: Palgrave Macmillan.

Minnesota Sentencing Guidelines Commission (2016) Sentencing Guidelines Manual.

Available at: https://mn.gov/sentencing-guidelines/.

Park, H. (2010) The Basic Features of the First Korean Sentencing Guidelines. Federal
Sentencing Reporter, 22: 262-271.

Pina-Sanchez, J. (2015) Defining and Measuring Consistency in Sentencing. In: J.V. Roberts
(ed.), Exploring Sentencing Practice in England and Wales, London: Palgrave Macmillan.
Pina-Sanchez, J. and Linacre, R. (2013) ‘Sentence Consistency in England and Wales’,
British Journal of Criminology, 53(6): 1118-1135.

Pina-Sanchez, J. and Linacre, R. (2014) ‘Enhancing Consistency in Sentencing:

Exploring the Effects of Guidelines in England and Wales’, Journal of Quantitative
Criminology, 30: 731-748.

Roberts, J.V. (Ed.) (2015) Exploring Sentencing Practice in England and Wales. London:
Palgrave Macmillan.

Roberts, J.V. and Ashworth, A. (2016) The Evolution of Sentencing Policy and Practice in
England and Wales, 1996-2015. In: M. Tonry (ed.) New York: Oxford University Press.

Roberts, J.V. and Bradford, B. (2015) Sentence Reductions for a Guilty Plea: New Empirical
Evidence from England and Wales. Journal of Empirical Legal Studies, 12(2): 187-210.

Roberts, J.V. and Gazal-Ayal, O. (2013) Sentencing Reform in Israel: An Analysis of the
Statutory Reforms of 2012. Israel Law Review, 46: 455-479.

Roberts, J.V. and Pina-Sanchez, J. (2017) Proportionality in Sentencing: An Empirical

Analysis in England and Wales. Oxford: Centre of Criminology, University of Oxford.

Sentencing Council (2011) Assault Offences. Definitive Sentencing Guideline. Available at:
http://sentencingcouncil.judiciary.gov.uk/

Sentencing Council (2017) Sentence Reductions for a Guilty Plea. Definitive Guideline.
Available at: http://sentencingcouncil.judiciary.gov.uk/

von Hirsch, A. and Jareborg, N. The Swedish Sentencing Law. In: A. von Hirsch et al. (eds.)
Principled Sentencing. (Third edition) Oxford: Hart Publishing.

11