Using pre-Sentencing Council guidelines

The offence guidelines include two structures: pre-Sentencing Council guidelines (created by the Sentencing Guidelines Council) and Sentencing Council guidelines. These were separated into parts three and four and part six in the hard copy of the MCSG.

Using pre-Sentencing Council guidelines

This section explains the key decisions involved in the sentencing process for SGC guidelines (parts three and four in the hard copy). 

1. Assess offence seriousness (culpability and harm)

Offence seriousness is the starting point for sentencing under the Criminal Justice Act 2003. The court’s assessment of offence seriousness will:

  • determine which of the sentencing thresholds has been crossed;
  • indicate whether a custodial, community or other sentence is the most appropriate;
  • be the key factor in deciding the length of a custodial sentence, the onerousness of requirements to be incorporated in a community sentence and the amount of any fine imposed.

When considering the seriousness of any offence, the court must consider the offender’s culpability in committing the offence and any harm which the offence caused, was intended to cause, or might forseeably have caused (Criminal Justice Act 2003, s.143(1)). In using these guidelines, this assessment should be approached in two stages.

2. Offence seriousness (culpability and harm) A. Identify the appropriate starting point

The guidelines set out examples of the nature of activity which may constitute the offence, progressing from less to more serious conduct, and provide a starting point based on a first time offender pleading not guilty. The guidelines also specify a sentencing range for each example of activity. Within the guidelines, a first time offender is a person who does not have a conviction which, by virtue of section 143(2) of the Criminal Justice Act 2003, must be treated as an aggravating factor.

Sentencers should begin by considering which of the examples of offence activity corresponds most closely to the circumstances of the particular case in order to identify the appropriate starting point:

  • where the starting point is a fine, this is indicated as band A, B or C. For more information, see the approach to assessing fines;
  • where the community sentence threshold is passed, the guideline sets out whether the starting point should be a low, medium or high level community order. For more information, see community order ranges;
  • where the starting point is a custodial sentence, see custodial sentences.

The Council’s definitive guideline Overarching Principles: Seriousness, published 16 December 2004, identifies four levels of culpability for sentencing purposes (intention, recklessness, knowledge and negligence). The starting points in the individual offence guidelines assume that culpability is at the highest level applicable to the offence (often, but not always, intention). Where a lower level of culpability is present, this should be taken into account.

2. Offence seriousness (culpability and harm) B. Consider the effect of aggravating and mitigating factors

Once the starting point has been identified, the court can add to or reduce this to reflect any aggravating or mitigating factors that impact on the culpability of the offender and/or harm caused by the offence to reach a provisional sentence. Any factors contained in the description of the activity used to reach the starting point must not be counted again. The range is the bracket into which the provisional sentence will normally fall after having regard to factors which aggravate or mitigate the seriousness of the offence. However:

  • the court is not precluded from going outside the range where the facts justify it;
  • previous convictions which aggravate the seriousness of the current offence may take the provisional sentence beyond the range, especially where there are significant other aggravating factors present.

In addition, where an offender is being sentenced for multiple offences, the court’s assessment of the totality of the offending may result in a sentence above the range indicated for the individual offences, including a sentence of a different type. See the definitive guideline on Offences Taken into Consideration and Totality for more information. The guidelines identify aggravating and mitigating factors which may be particularly relevant to each individual offence. These include some factors drawn from the general list of aggravating and mitigating factors in the Council’s definitive guideline (see ‘seriousness’ link above). In each case, sentencers should have regard to the full list, which includes the factors that, by statute, make an offence more serious:

  • offence committed while on bail for other offences;
  • offence was racially or religiously aggravated;
  • offence was motivated by, or demonstrates, hostility based on the victim’s sexual orientation (or presumed sexual orientation);
  • offence was motivated by, or demonstrates, hostility based on the victim being (or being presumed to be) transgender;
  • offence was motivated by, or demonstrates, hostility based on the victim’s disability (or presumed disability);
  • offender has previous convictions that the court considers can reasonably be treated as aggravating factors having regard to their relevance to the current offence and the time that has elapsed since conviction.

While the lists in the offence guidelines and other material referenced above, aim to identify the most common aggravating and mitigating factors, they are not intended to be exhaustive. Sentencers should always consider whether there are any other factors that make the offence more or less serious.

3. Form a preliminary view of the appropriate sentence, then consider offender mitigation

When the court has reached a provisional sentence based on its assessment of offence seriousness, it should take into account matters of offender mitigation. The Council guideline Overarching Principles: Seriousness states that the issue of remorse should be taken into account at this point along with other mitigating features such as admissions to the police in interview.

4. Consider a reduction for a guilty plea

The Council guideline Reduction in Sentence for a Guilty Plea, revised 2007, states that the punitive elements of the sentence should be reduced to recognise an offender’s guilty plea. The reduction has no impact on sentencing decisions in relation to ancillary orders, including disqualification. The level of the reduction should reflect the stage at which the offender indicated a willingness to admit guilt and will be gauged on a sliding scale, ranging from a recommended one third (where the guilty plea was entered at the first reasonable opportunity), reducing to a recommended one quarter (where a trial date has been set) and to a recommended one tenth (for a guilty plea entered at the ‘door of the court’ or after the trial has begun). There is a presumption that the recommended reduction will be given unless there are good reasons for a lower amount. The application of the reduction may affect the type, as well as the severity, of the sentence. It may also take the sentence below the range in some cases. The court must state that it has reduced a sentence to reflect a guilty plea (Criminal Justice Act 2003, s.174(2)(d)). It should usually indicate what the sentence would have been if there had been no reduction as a result of the plea.

5. Consider ancillary orders, including compensation

Ancillary orders of particular relevance to individual offences are identified in the relevant guidelines. The court must always consider making a compensation order where the offending has resulted in personal injury, loss or damage (Powers of Criminal Courts (Sentencing) Act 2000, s.130(1)). The court is required to give reasons if it decides not to make such an order (Powers of Criminal Courts (Sentencing) Act 2000, s.130(3)).

6. Decide sentence Give reasons

Review the total sentence to ensure that it is proportional to the offending behaviour and properly balanced. Sentencers must state reasons for the sentence passed in every case, including for any ancillary orders imposed (Criminal Justice Act 2003, s.174(1)). It is particularly important to identify any aggravating or mitigating factors, or matters of offender mitigation, that have resulted in a sentence more or less severe than the suggested starting point. If a court imposes a sentence of a different kind or outside the range indicated in the guidelines, it must state its reasons for doing so (Criminal Justice Act 2003, s.174(2)(a)). The court should also give its reasons for not making an order that has been canvassed before it or that it might have been expected to make.

Where there is no guideline for an offence, it may assist in determining sentence to consider the starting points and ranges indicated for offences that are of a similar level of seriousness.