3. Approach to sentencing

A court should not conclude that offending involved aggravation related to race, religion, disability, sexual orientation or transgender identity without first putting the offender on notice and allowing him or her to challenge the allegation.

When sentencing any offence where such aggravation is found to be present, the following approach should be followed. This applies both to the specific racially or religiously aggravated offences under the Crime and Disorder Act 1998 and to offences which are regarded as aggravated under section 145 or 146 of the Criminal Justice Act 2003:

  • sentencers should first determine the appropriate sentence, leaving aside the element of aggravation related to race, religion, disability, sexual orientation or transgender identity but taking into account all other aggravating or mitigating factors;
  • the sentence should then be increased to take account of the aggravation related to race, religion, disability, sexual orientation or transgender identity;
  • the increase may mean that a more onerous penalty of the same type is appropriate, or that the threshold for a more severe type of sentence is passed;
  • the sentencer must state in open court that the offence was aggravated by reason of race, religion, disability, sexual orientation or transgender identity;
  • the sentencer should state what the sentence would have been without that element of aggravation.

The extent to which the sentence is increased will depend on the seriousness of the aggravation. The following factors could be taken as indicating a high level of aggravation.

Offender’s intention

  • The element of aggravation based on race, religion, disability, sexual orientation or transgender identity was planned.
  • The offence was part of a pattern of offending by the offender.
  • The offender was a member of, or was associated with, a group promoting hostility based on race, religion, disability, sexual orientation or transgender identity.
  • The incident was deliberately set up to be offensive or humiliating to the victim or to the group of which the victim is a member.

Impact on the victim or others

  • The offence was committed in the victim’s home.
  • The victim was providing a service to the public.
  • The timing or location of the offence was calculated to maximise the harm or distress it caused.
  • The expressions of hostility were repeated or prolonged.
  • The offence caused fear and distress throughout a local community or more widely.
  • The offence caused particular distress to the victim and/or the victim’s family.

At the lower end of the scale, the aggravation may be regarded as less serious if:

  • it was limited in scope or duration;
  • the offence was not motivated by hostility on the basis of race, religion, disability, sexual orientation or transgender identity, and the element of hostility or abuse was minor or incidental.

In these guidelines, where the specific racially or religiously aggravated offences under the Crime and Disorder Act 1998 are addressed on the same page as the ‘basic offence’; the starting points and ranges indicated on the guideline relate to the ‘basic’ (in other words, non-aggravated) offence. The increase for the element of racial or religious aggravation may result in a sentence above the range; this will not constitute a departure from the guideline for which reasons must be given.