CRIMINAL PROCEDURE REVISION FACTSHEET 10

(Criminal litigation syllabus reference: Section 5.22)

SENTENCING PRINCIPLES

What happens after conviction?

 A defendant will be sentenced either when he has been convicted after

trial or he has pleaded guilty.

 Following conviction the court has a number of options:

o Sentence immediately.
o Adjourn for reports with a view to sentencing at the adjourned
hearing.
o Commit for sentence to the Crown Court (magistrates’ courts
only).
o Defer sentence.

Sentencing on the day of conviction

 A decision should be made as to whether sentencing can take place

immediately.

 If a fine or discharge is clearly appropriate, there is no need for a pre-

sentence report. The court can therefore sentence that day.

 If a community sentence is being considered then the court must

generally request a report by the probation service.

 A full standard delivery report will usually be needed – that is a report

that requires an adjournment of about three weeks.

CARDIFF BPTC 1
  Where a community sentence at the lower end of the scale is
appropriate then it may still be possible to sentence on the day of
conviction if the probation service is able to provide a fast delivery
report or oral report.

 If custody is a realistic option the court will rarely sentence without a full
standard delivery pre-sentence report.

Adjourning for reports

 As stated above the court will often need the assistance of the
probation service before deciding on sentence.

 The probation service will prepare a report. These reports are referred
to as pre-sentence reports (PSR)

 Other reports may also be ordered such as psychiatric reports.

 Reports will be provided to all parties, and should be served in advance

of the relevant hearing, although, in practice, reports are often received
on the day of hearing.

 When adjourning the court should give an indication as to the level of

sentence being considered, or state that all sentencing options are
being kept open.

 A sentencing report may recommend a particular sentence. The court

is not bound by this recommendation.

CARDIFF BPTC 2
Committal for sentence

 The magistrates’ court can decide to commit a defendant to the Crown

Court for sentence on the day of conviction if information is forthcoming
that makes their sentencing powers insufficient.

 However, it is also possible for the court to adjourn for reports and
commit for sentence on the adjourned date.

 The court should be careful, however, when adjourning for reports to

tell a defendant that committal for sentence is a possibility (if indeed it
is) as failure to do so will give rise to a ‘legitimate expectation’ that the
defendant is to be sentenced in the magistrates’ court.

 If the defendant is committed for sentence he will next appear in the

Crown Court

 In the Crown Court the defendant will be sentenced by a single judge.

 The judge has the same sentencing powers as he would have had the
defendant just be convicted on indictment.

Deferred sentence

 Sections 1 and 2 Powers of the Criminal Court (Sentencing) Act 2000

(PCC(s)A) allow the court to defer sentence for up to six months.

 This power is used fairly infrequently and is reserved for situations

where a defendant can be set goals that, if achieved, would affect his
sentence.

 The court’s expectations must be clear and achievable.

 If a defendant complies then he can expect a much more favourable

sentence, for example, a community penalty as opposed to custody.

CARDIFF BPTC 3
  A defendant who is subject to a deferred sentence is no longer
remanded either in custody or on bail.

Determining the facts of the offence and Newton hearings

Determining the facts after trial

 If there has been a trial in the magistrates’ court the magistrates (or
district judge) who heard the evidence will normally sentence.

 The facts used for sentencing will be those that the magistrates found
to be proved during the trial.

 In the Crown Court the position is a little more complicated.

 Crown Court trials are heard by a judge and jury.

 It is the jury which will determine whether the defendant is innocent or

guilty.

 The jury will not explain its reasoning for the verdict.

 If a defendant is found guilty by the jury it is, therefore, for the judge to
interpret how the jury reached its decision.

 Unless there are any particular reasons not to, the judge will sentence
on the basis of the prosecution case as presented during the trial.

Newton Hearings

 If the defendant has pleaded guilty the court will usually sentence on
the basis of the facts set out by the prosecution.

CARDIFF BPTC 4
  What if the defendant accepts that he is guilty, but does not accept the
circumstances of the offence as alleged by the prosecution?

 This is relevant where the disputed circumstances of the offence may

impact on the sentence imposed by the court.
 For example, the defendant may admit that he committed assault, but
deny that the circumstances were as violent as the Prosecution allege.

 Where the difference in the alleged facts of the offence may have a
material effect on sentence, the court will consider resolving the issue
by hearing evidence – a Newton hearing.

 It is very common for the defence to provide a written basis of plea to

the prosecution if the defendant is willing to plead guilty to a somewhat
different version of events than outlined in the prosecution papers.

 If the written basis is accepted by the prosecution, this may avoid the
need for a Newton hearing.

 If the written basis of plea is not acceptable to the Crown, then a

Newton hearing may be necessary.

 The court should hold a Newton Hearing if the difference between the
prosecution version of events and the defence version of events would
have a material effect on sentence.

 The procedure at a Newton hearing is that evidence is presented

regarding the facts and circumstances of the offence.

 The usual burden and standard of proof applies. The prosecution must
prove beyond reasonable doubt that its version of events is correct.

 A Newton Hearing will not be necessary if:

o The difference between the prosecution and defence would not

materially affect sentence.

CARDIFF BPTC 5
 o The basis of plea being put forward by the defendant is so
manifestly absurd that no court would accept it. In this situation
the court is entitled to refuse to hold a Newton hearing and
proceed on the basis of the prosecution case.

 There is case law to the effect that if the court does not hear evidence
on a disputed matter it should normally accept the defence version
(unless it is manifestly absurd).

 If the court finds against the defendant in the Newton Hearing and
decides to sentence on the basis of the prosecution case, the
defendant will normally lose some of the guilty plea discount he
otherwise would get, see below.

Indications of sentence

 Occasionally the defence will ask the judge to give an indication of the
likely sentence if the defendant enters a guilty plea to the charge/s.
(please note that this is a different issue from the statutory sentence
indication that may be provided during allocation in the magistrates’
court – see separate Factsheet).

 There is a risk that the defendant will be put under pressure to plead
guilty if the judge indicates a certain sentence.

 Case law has, therefore, developed to ensure that there are clear
guidelines as to when and how a judge can provide an indication of
sentence.

 The authority which now governs this area of the law is R v. Goodyear
[2005].

CARDIFF BPTC 6
  The main guidelines for the provision of a Goodyear Indication are as
follows:

o The defendant should request an indication, rather than the

judge initiating the process.
o The judge is entitled, however, to remind the defendant that
such a request can be made.
o The judge is entitled to refuse to provide an indication if one is
requested.
o Before an indication can be given the facts of the offence that
will be used for sentence must be agreed by the prosecution
and defence.
o The agreed factual basis should be written down and signed by
both parties.
o Any discussions about the indication should be in open court.
o If an indication is given it is binding on the judge (and any other
judge who may deal with the case) if the defendant enters a
guilty plea as a result of the indication.
o If, however, the defendant has been given a reasonable amount
of time to consider the indication but does not enter a guilty plea
the indication ceases to be binding.
o The indication given will be the most severe sentence the
defendant would receive if he entered a guilty plea at the time
the indication is given.
o In other words the sentence may reduce in severity from the
indication given when the court has heard mitigation, but cannot
increase in severity.

Sentencing procedure

 There is very little difference between sentencing procedure in the

magistrates’ court and the Crown Court.

CARDIFF BPTC 7
  Assuming the facts of the prosecution case are not disputed the
procedure will be as follows:

o The prosecutor will outline the prosecution case to the court.

(Please note that if the defendant has been convicted after trial
the prosecution outline is usually unnecessary as the
court/judge which heard the trial should also sentence).
o The prosecutor should also go through the defendant’s previous
convictions, if any, highlighting any of significance.
o Any ancillary orders should also be applied for by the
prosecution, for example, costs.
o The court’s attention may also be brought to the sentencing
guidelines applicable to the offence by the prosecutor, see
below.
o The defence will then mitigate, see below.
o The defence will make reference to the PSR, if there is one.
o Sentencing guidelines may also be referred to by the defence
during mitigation.
o The court will then decide on sentence.
o When sentencing the defendant the court should set out its
reasons for imposing the particular sentence.
o The sentencing guidelines applied to the case should also be
explained.
o The court should be careful to explain to the defendant in plain
language the sentence that has been imposed and the factors
that have been taken into account by the court when deciding on
sentence.

The Sentencing Council and sentencing guidelines

 Section 167 of the Criminal Justice Act 2003 (CJA) created The
Sentencing Guidelines Council.

CARDIFF BPTC 8
  The Council issued guidelines to assist the courts in dealing with
criminal cases in England and Wales.

 In 2010 the Sentencing Guidelines Council was replaced by the

Sentencing Council.

 The Sentencing Council will continue to issue guidelines for offences

as the need arises.

 By virtue of s125 of the Coroners and Justice Act 2009 the sentencing
court must follow any relevant sentencing guidelines when sentencing
an offender, unless the court is satisfied that it would be contrary to the
interests of justice to do so.

 There are a number of definitive guidelines that have been issued to

date. These can be found on the Sentencing Council’s website.

 For offences that do not currently have definitive guidance, the Court of
Appeal guidance can be consulted instead. These are cases decided
by the Court of Appeal which lay down guidance for courts concerning
the approach that they should take to the offence under consideration.
The Sentencing Council produces a compendium of Court of Appeal
guideline cases. This can also be found on the Sentencing Council
website.

The Purposes of Sentencing

 Section 142(1) CJA 2003 provides that any court dealing with an
offender in respect of his offence must have regard to the following
purposes of sentencing:

o The punishment of offenders.

CARDIFF BPTC 9
 o The reduction of crime (including its reduction by deterrence).
o The reform and rehabilitation of offenders.
o The protection of the public.
o The making of reparation by offenders to persons affected by
their offences.
 
 But note that section 142(1) does not apply:
o where an offender is aged under 18 at the time of conviction, or
o to an offence the sentence for which is fixed by law.

The seriousness of the offence

 The court is required to pass a sentence that is commensurate with the

seriousness of the offence.

 Section 143(1) CJA 2003 provides that in considering the seriousness

of any offence, the court must consider:

o the offender's culpability in committing the offence, and

o any harm which the offence caused, was intended to cause or
might foreseeably have caused.

 Therefore, the determination of the seriousness of an offence requires

consideration of culpability and harm.

What is culpability?

 The Sentencing Council identifies four levels of criminal culpability,

where the offender:

o Has the intention to cause harm, with the highest culpability

when an offence is planned. The worse the harm intended, the
greater the seriousness.

CARDIFF BPTC 10
 o Is reckless as to whether harm is caused, that is, where the
offender appreciates at least some harm would be caused but
proceeds giving no thought to the consequences even though
the extent of the risk would be obvious to most people.

o Has knowledge of the specific risks entailed by his actions even

though he does not intend to cause the harm that results.

o Is guilty of negligence.

What is harm?

 The Sentencing Council identifies:

o Harm to individual victims (e.g. physical injury or financial loss).

o Harm to the community (e.g. interference with the administration
of justice).
o Other types of harm (e.g. cruelty to animals).

What factors affect the assessment of culpability and harm?

 The Sentencing Council notes that:

o the culpability of the offender in the particular circumstances of

an individual case should be the initial factor in determining the
seriousness of an offence.

 Culpability will be greater if:

o an offender deliberately causes more harm than is necessary for

the commission of the offence, or

CARDIFF BPTC 11
 o an offender targets a vulnerable victim (because of their old age
or youth, disability or by virtue of the job they do).

 Some examples of aggravating factors which may indicate a higher

degree of culpability will help you understand this principle:

o offence committed whilst on bail;

o offence which was racially aggravated;
o planning the offence;
o use of a weapon.

 The Sentencing Council notes that:

o harm must always be judged in the light of culpability.

 Some examples of aggravating factors which may indicate a more than

usually serious degree of harm are as follows:

o multiple victims;
o especially serious physical or psychological injury;
o additional degradation of the victim (taking photographs of the
victim as part of the offence).

 The Sentencing Council also notes that there can be mitigating factors,
which reduce the seriousness of the offence as they indicate:

o that the offender’s culpability is unusually low, or

o that the harm caused by the offence is less than usually serious.

 Some examples of mitigating factors relating to the circumstances of

the offence might be:

o provocation of the defendant;

CARDIFF BPTC 12
 o playing only a minor role in the offence.

Mitigation

Statutory provisions relating to mitigation

 Section 166(1) CJA 2003 makes provision for a court to take account
of any matters that “in the opinion of the court are relevant in mitigation
of sentence”.

 Once the court has formed an initial assessment of the seriousness of

the offence (based on culpability and harm), then it should consider
any offender mitigation.

What is the purpose of mitigation?

 The purpose of mitigation is to provide the court with information about

the offender and the circumstances of the offence which may influence
the sentence that is likely to be ordered by the court.

 This may include calling character witnesses, or putting forward written

testimonials about the defendant’s otherwise unblemished character.

 In addition, mitigation provides an opportunity for the defence to

explore the available sentencing options and make submissions
regarding which is the most appropriate sentence in the circumstances.

Offences ‘taken into consideration’ (TICs)

 Sentence is usually based on:

CARDIFF BPTC 13
 o the offences to which the defendant has pleaded guilty, and/or
o the offences of which the defendant has been found guilty after
trial.

 It is also possible for a defendant to ask for other offences to be taken

into consideration.

 These are offences with which the defendant has not been charged,
but which he is prepared to admit to ‘wipe the slate clean’.

 In admitting the offences, the defendant is leaving himself open to a

heavier sentence, although not as heavy as if the defendant was
separately convicted for the offence.

 Once an offence has been TIC’d the defendant cannot be separately

prosecuted for it.

Victim Personal Statements

 Since 1st October 2001, the court has been able to take account of the
effect of the offence on the victim when determining sentence.

 This is done through the use of a Victim Personal Statement.

 In some circumstances, it may be appropriate for relatives of a victim to

make a Victim Personal Statement, for example where the victim has
died as a result of the relevant criminal conduct.

 The information contained in the Victim Personal Statement can

increase or decrease the court’s assessment of the seriousness of the

CARDIFF BPTC 14
 offence, depending on the impact which the offence has had on the
victim.

 When a police officer takes a statement from a victim, the victim will be
given the chance to make a Victim Personal Statement.

 The Victim Personal Statement and any evidence in support should be

considered and taken into account by the court prior to passing
sentence.

 Evidence of the effects of an offence on the victim contained in the

Victim Personal Statement or other statement, must be in proper form,
that is a witness statement made under section 9 of the Criminal
Justice Act 1967 or an expert's report.

 Any statements to be relied upon should be served upon the defence.

 The court must pass what it judges to be the appropriate sentence

having regard to the circumstances of the offence and of the offender,
taking into account, so far as the court considers it appropriate, the
impact on the victim.

 The opinions of the victim or the victim's close relatives as to what the
sentence should be are therefore not relevant.

Reduction for a guilty plea

 The court should normally reduce a defendant's sentence when the

defendant has pleaded guilty, with discounts of up to a third being
available.

 The reduction applicable is gauged on a sliding scale, ranging from:

CARDIFF BPTC 15
 o A maximum of one third (where the guilty plea was entered at
the first reasonable opportunity in relation to the offence for
which sentence is being imposed).
o A maximum of one quarter (when a trial date has been set).
o A maximum of one tenth (for a guilty plea at the 'door of the
court' or after the trial has begun.

 Therefore the reduction will reflect the stage at which the offender
indicated willingness to admit guilt – this usually means formally enters
a plea of guilty.

 The full one third reduction will only be available where the defendant
admits guilt at the first reasonable opportunity.

 What amounts to the first reasonable opportunity will vary depending

on the nature of the case.

 In an either-way offence the first reasonable opportunity will be at the

plea before venue hearing in the magistrates’ court. In an indictable
only case the first reasonable opportunity will be in the Crown Court at
a preliminary hearing (if there is one, otherwise the PCMH).

 Many Crown Court centres now have an early guilty plea scheme.

 This means that there will be clear guidelines regarding what the court
will consider to be the first available opportunity to enter a guilty plea.

 For example, if an either-way case comes to the Crown Court for a

Plea and Case Management Hearing and it is only at this stage that the
Defendant pleads guilty the court is only likely to give a 25% reduction,
rather than the full 33%.

 In cases where the prosecution case is overwhelming, it may not be

appropriate to give the full reduction that would otherwise be given. In

CARDIFF BPTC 16
 this situation the recommended reduction is 20% where the guilty plea
was indicated at the first reasonable opportunity.

 When pronouncing sentence the court should state what the sentence
would have been had there not been a reduction as a result of the
guilty plea.

The sentencing hierarchy

 Both the magistrates’ court and the Crown Court can impose:

o Absolute and conditional discharges.

o Fines.
o Community sentences.
o Custodial sentences.

 The hierarchy of sentencing options is:

o Least serious offences - likely to attract a discharge or fine.

o Medium gravity offences - likely to receive a community
sentence.
o Most serious offences - will usually warrant a custodial
sentence.

The ‘custody threshold’

 Section 152(2) CJA 2003 provides that:

o The court must not pass a custodial sentence unless it is of the

opinion that the offence, or the combination of the offence and

CARDIFF BPTC 17
 one or more offences associated with it, was so serious that
neither a fine alone nor a community sentence can be justified
for the offence.

 When applying the threshold test for custody, the court should bear in
mind:

o Custody is reserved for the most serious offences.

o Whether the threshold is passed is a matter for the court to
determine based on the assessment of seriousness.
o Just because the custody threshold is passed, it does not mean
that a custodial sentence is inevitable, as other factors (e.g.
personal mitigation) may mean that another punishment is more
suitable.

 The Sentencing Council’s recommended approach when determining if

a custodial sentence is applicable is to consider the following
questions:

o Has the custody threshold been passed?

o If so, is it unavoidable that a custodial sentence be imposed?
o If so, can that sentence be suspended?
o If not, impose a sentence which takes immediate effect for the
term commensurate with the seriousness of the offence.

 Section 153 provides that, where a custodial sentence is imposed, it

must be for the shortest term that in the opinion of the court is
commensurate with the seriousness of the offence or the combination
of the offence and one or more offences associated with it.

The ‘community sentence threshold’

CARDIFF BPTC 18
  Section 148(1) CJA 2003 provides that:

o The court must not pass a community sentence on an offender

unless it is of the opinion that the offence, or the combination of
the offence and one or more offences associated with it, was
serious enough to warrant such a sentence.

 Again, when considering the imposition of a community penalty, the

court should bear in mind:

o Whether the threshold is passed is a matter for the court to

determine based on the assessment of seriousness.
o Just because the threshold is passed, it does not mean that a
community penalty is inevitable, as other factors (e.g. personal
mitigation) may mean that another punishment is more suitable.

CARDIFF BPTC 19