How does sentencing take into account an offender’s disabilities?

By Jill Gramann, Magistrate member of the Sentencing Council

When judges and magistrates are faced with offenders who have targeted victims who have disabilities, the law and sentencing guidelines are clear: courts are obliged to treat this as an aggravating factor which will increase the sentence given.

It is sometimes asked, however, how sentencing is influenced when it is the offender who is physically disabled.

Sentences must reflect the seriousness of the offence while taking into account the personal circumstances of the offender. These may affect both the type of sentence imposed and the length of the sentence. In all cases, regardless of disability, there may be circumstances that increase the seriousness of the offending, such as previous convictions. On the other hand, courts may take into account other aspects that could reduce seriousness, such as previous exemplary character.

So should an offender’s disability be taken into account in sentencing? Should it affect the type of sentence that is given? In relation to mental disability or disorder, it may affect what type of sentence is passed – for example, in some cases it may be appropriate for offenders to be given a hospital order so they can be given psychiatric treatment in a secure location. The court would consider medical reports in reaching its decision.

Although there are no specific sentences for those with physical disabilities, the disability will nevertheless be considered in the sentencing process where it is relevant. The court would again consider medical reports and any personal mitigation. Although they do not make explicit mention of physical disability, sentencing guidelines produced by the Sentencing Council include a mitigating factor of “serious medical conditions requiring urgent, intensive or long term treatment”. These considerations may affect both the type and length of sentence, depending on the circumstances.

However, the weight given to the offender’s disability when deciding the sentence would depend on the nature of the offence.
For example, in one Court of Appeal judgment in a robbery case where a disabled offender appealed against his sentence of a substantial jail term, the original sentence was upheld. The judgment stated: “There is no absolute rule that a sentencing judge must reduce a sentence because the offender is disabled” but went on to say that a judge could do this depending on the situation. While the judge in this case took account of the offender’s disability, he concluded that the offender had taken part in a very serious robbery in which the victim was subjected to a brutal attack and that his disability had not stopped him from doing so.

In another Court of Appeal judgment, a sentence of three years’ imprisonment given to an offender for importing Class A drugs was reduced to 18 months because of his exceptional personal mitigation – he suffered from a combination of extremely serious medical conditions.

The judgment stated:
“A court passing sentence should not concern itself with the adequacy of medical arrangements in prisons, unless the mere fact of imprisonment would inevitably expose the prisoner to inhuman or degrading treatment contrary to art.3, in other words, arrangements could not be made which would avoid that consequence. However, a sentencing court was fully entitled to take account of a medical condition by way of mitigation as a reason for reducing the length of the sentence, either on the grounds of the greater impact which imprisonment would have on the offender, or as a matter of mercy in the circumstances of the case.”……

“Those who were gravely ill, or severely disabled, might have to be imprisoned if they committed serious offences. Their condition could not be a passport to absence of punishment.”

In essence therefore, judges and magistrates can take physical disability into account in the sentencing process and will do so in appropriate circumstances, but it does not excuse offending behaviour.