In considering whether there are exceptional circumstances that would justify not imposing the minimum term the court must have regard to:
- the particular circumstances which relate to any of the offences and
- the particular circumstances of the offender.
either of which may give rise to exceptional circumstances.
Where the issue of exceptional circumstances has been raised the court should give a clear explanation as to why those circumstances have or have not been found.
Where the factual circumstances are disputed, the procedure should follow that of a Newton hearing: see Criminal Practice Directions 9.3.3 Sentencing.
Circumstances are exceptional if the imposition of the minimum term would result in an arbitrary and disproportionate sentence for that young person.
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 custody threshold the court may consider that this gives rise to exceptional circumstances that justify not imposing the statutory minimum sentence. Where the court is considering a statutory minimum sentence as a result of a second or further relevant offence, consideration should be given to the seriousness of the previous offence(s) and the period of time that has elapsed between offending. Where the seriousness of the combined offences is such that it falls far below the custody threshold, or where there has been a significant period of time between the offences, the court may consider that this gives rise to exceptional circumstances that justify not imposing the statutory minimum sentence.
The young person
The statutory obligation to have regard to the welfare of a young person includes the obligation to secure proper provision for education and training, to remove the young person from undesirable surroundings where appropriate, and the need to choose the best option for the young person taking account of the circumstances of the offence. In having regard to the welfare of the young person, a court should ensure that it considers:
- any mental health problems or learning difficulties/disabilities;
- any experiences of brain injury or traumatic life experience (including exposure to drug and alcohol abuse) and the developmental impact this may have had;
- any speech and language difficulties and the effect this may have on the ability of the young person (or any accompanying adult) to communicate with the court, to understand the sanction imposed or to fulfil the obligations resulting from that sanction;
- the vulnerability of young people to self harm, particularly within a custodial environment; and
- the effect on young people of experiences of loss and neglect and/or abuse.
In certain cases the concerns about the welfare of the young person may be so significant that the court considers that this gives rise to exceptional circumstances that justify not imposing the statutory minimum sentence.
Where exceptional circumstances are found
If there are exceptional circumstances that justify not imposing the statutory minimum sentence then the court must impose an alternative sentence.