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.
Principles
The circumstances must truly be exceptional. Circumstances are exceptional if the imposition of the minimum term would result in an arbitrary and disproportionate sentence.
It is important that courts adhere to the statutory requirement and do not too readily accept that the circumstances are exceptional. A factor is unlikely to be regarded as exceptional if it would apply to a significant number of cases.
The court should look at all of the circumstances of the case taken together. A single striking factor may amount to exceptional circumstances, or it may be the collective impact of all of the relevant circumstances. The seriousness of the previous offence(s) and the period of time that has elapsed between offences will be a relevant consideration.
The mere presence of one or more of the following should not in itself be regarded as exceptional:
- One or more lower culpability factors
- One or more mitigating factors
- A plea of guilty
Where exceptional circumstances are found
If there are exceptional circumstances that justify not imposing the statutory minimum sentence then the court must impose either a shorter custodial sentence than the statutory minimum provides or an alternative sentence.