In considering whether a statutory minimum sentence would be ‘unjust in all of the circumstances’ the court must have regard to the particular circumstances of the offence and the offender.
Where the factual circumstances are disputed, the procedure should follow that of a Newton hearing: see Criminal Practice Directions 9.3.3 Sentencing.
If the circumstances of the offence or the offender make it unjust to impose the statutory minimum sentence then the court must impose either a shorter custodial sentence than the statutory minimum provides or an alternative sentence.
The offence
Having reached this stage of the guideline the court should have made a provisional assessment of the seriousness of the offence. Where the court has determined that the offence seriousness falls far below the custodial threshold the court may consider it unjust to impose the statutory minimum sentence.
The offender
The court should consider the following factors to determine whether it would be unjust to impose the statutory minimum sentence:
- any strong personal mitigation;
- whether there is a realistic prospect of rehabilitation;
- whether custody will result in significant impact on others.