Domestic burglary - for consultation only

Theft Act 1968. s.9

Draft guideline for consultation only. Draft guidelines should not be taken into account when sentencing.

Triable either way (except as noted below)
Maximum: 14 years’ custody
Offence range: Community order- 6 years’ custody

This is a specified offence for the purposes of sections 266 and 279 (extended sentence for certain violent, sexual or terrorism offences) of the Sentencing Code if it was committed with intent to:

  1. inflict grievous bodily harm on a person, or
  2. do unlawful damage to a building or anything in it.

This offence is indictable only where:

  1. it is a burglary comprising the commission of, or an intention to commit, an offence which is triable only on indictment; or
  2. any person in the dwelling was subjected to violence or the threat of violence; or
  3. if the defendant were convicted, it would be a third qualifying conviction for domestic burglary.

Where sentencing an offender for a qualifying third domestic burglary, the Court must apply section 314 of the Sentencing Code and impose a custodial term of at least three years, unless it is satisfied that there are particular circumstances which relate to any of the offences or to the offender which would make it unjust to do so.

User guide for this offence


Guideline users should be aware that the Equal Treatment Bench Book covers important aspects of fair treatment and disparity of outcomes for different groups in the criminal justice system. It provides guidance which sentencers are encouraged to take into account wherever applicable, to ensure that there is fairness for all involved in court proceedings.

Applicability

In accordance with section 120 of the Coroners and Justice Act 2009, the Sentencing Council issues this definitive guideline. It applies to all offenders aged 18 and older, who are sentenced on or after the effective date of this guideline, regardless of the date of the offence.*

Section 59(1) of the Sentencing Code provides that:

“Every court –

  1. must, in sentencing an offender, follow any sentencing guidelines which are relevant to the offender’s case, and
  2. must, in exercising any other function relating to the sentencing of offenders, follow any sentencing guidelines which are relevant to the exercise of the function,

unless the court is satisfied that it would be contrary to the interests of justice to do so.”

This guideline applies only to offenders aged 18 and older. General principles to be considered in the sentencing of children and young people are in the Sentencing Council definitive guideline, Overarching Principles – Sentencing Children and Young People.

*The maximum sentence that applies to an offence is the maximum that applied at the date of the offence.

Step 1 – Determining the offence category

The court should determine the offence category with reference only to the factors in the table below. In order to determine the category the court should assess culpability and harm.

The level of culpability is determined by weighing up all the factors of the case. Where there are characteristics present which fall under different levels of culpability the court should balance these characteristics to reach a fair assessment of the offender’s culpability

Culpability demonstrated by one or more of the following:

A – High culpability

  • Targeting of vulnerable victim
  • A significant degree of planning or organisation
  • Knife or other weapon carried (where not charged separately)

B – Medium culpability

  • Some degree of planning or organisation
  • Equipped for burglary (where not in high culpability)
  • Other cases that fall between categories A and C because:
  • Factors are present in A and C which balance each other out and/or
  • The offender’s culpability falls between the factors described in A and C

C – Lower culpability

  • Offence committed on impulse, with limited intrusion into property
  • Involved through coercion, intimidation or exploitation
  • Mental disorder or learning disability, where linked to the commission of the offence

Harm

The level of harm is assessed by weighing up all the factors of the case

Category 1

  • Much greater emotional impact on the victim than would normally be expected
  • Occupier at home (or returns home) while offender present
  • Violence used or threatened against the victim
  • Theft of/damage to property causing a substantial degree of loss to the victim (whether economic, commercial or personal value)
  • Soiling of property and/or extensive damage or disturbance to property
  • Context of public disorder

Category 2

  • Greater emotional impact on the victim than would normally be expected
  • Theft of/damage to property causing some degree of loss to the victim (whether economic, commercial or personal value)
  • Ransacking or vandalism to the property

Category 3

  • Nothing stolen or only property of low value to the victim (whether economic, commercial or personal)
  • Limited damage or disturbance to property

Step 2 – Starting point and category range

Having determined the category at step one, the court should use the corresponding starting point to reach a sentence within the category range below. The starting point applies to all offenders irrespective of plea or previous conditions.

Where sentencing an offender for a qualifying third domestic burglary, the Court must apply section 314 of the Sentencing Code and impose a custodial term of at least three years, unless it is satisfied that there are particular circumstances which relate to any of the offences or to the offender which would make it unjust to do so.

Where the offender is dependent on or has a propensity to misuse drugs or alcohol and there is sufficient prospect of success, a community order with a drug rehabilitation requirement under part 10, or an alcohol treatment requirement under part 11, of Schedule 9 of the Sentencing Code may be a proper alternative to a short or moderate custodial sentence.

For cases of particular gravity, sentences above the top of the range may be appropriate.

Harm   Culpability  
  A B C
Category 1

Starting point
3 years’ custody

Starting point
2 years’ custody

Starting point
1 year 6 months’  custody

Category range
2 – 6 years’ custody

Category range
1 – 4 years’ custody

Category range
6 months – 3 years’ custody

Category 2

Starting point
2 years’ custody

Starting point
1 year 6 months’  custody

Starting point
1 year’s custody

Category range
1 – 4 years’ custody

Category range
6 months – 3 years’ custody

Category range
High level community order – 2 years’ custody

Category 3

Starting point
1 year 6 months’ custody

Starting point
1 year’s custody

Starting point
High level community order

Category range
6 months – 3 years’ custody

Category range
High level community order – 2 years’ custody

Category range
Low level community order – 6 months’ custody

Community orders

For further information see Imposition of community and custodial sentences.

  • The seriousness of the offence should be the initial factor in determining which requirements to include in a community order. Offence specific guidelines refer to three sentencing levels within the community order band based on offence seriousness (low, medium and high). The culpability and harm present in the offence(s) should be considered to identify which of the three sentencing levels within the community order band is appropriate. See below for non-exhaustive examples of requirements that might be appropriate in each.
  • At least one requirement MUST be imposed for the purpose of punishment and/or a fine imposed in addition to the community order unless there are exceptional circumstances which relate to the offence or the offender that would make it unjust in all the circumstances to do so.
  • A suspended sentence MUST NOT be imposed as a more severe form of community order. A suspended sentence is a custodial sentence.
  • Community orders can fulfil all of the purposes of sentencing. In particular, they can have the effect of restricting the offender’s liberty while providing punishment in the community, rehabilitation for the offender, and/or ensuring that the offender engages in reparative activities.
  • A community order must not be imposed unless the offence is ‘serious enough to warrant such a sentence’. Where an offender is being sentenced for a non-imprisonable offence, there is no power to make a community order.
  • Sentencers must consider all available disposals at the time of sentence; even where the threshold for a community sentence has been passed, a fine or discharge may be an appropriate penalty. In particular, a Band D fine may be an appropriate alternative to a community order.
  • The court must ensure that the restriction on the offender’s liberty is commensurate with the seriousness of the offence and that the requirements imposed are the most suitable for the offender.
  • Sentences should not necessarily escalate from one community order range to the next on each sentencing occasion. The decision as to the appropriate range of community order should be based upon the seriousness of the new offence(s) (which will take into account any previous convictions).
  • In many cases, a pre-sentence report will be pivotal in helping the court decide whether to impose a community order and, if so, whether particular requirements or combinations of requirements are suitable for an individual offender. Whenever the court reaches the provisional view that a community order may be appropriate, it should request a pre-sentence report (whether written or verbal) unless the court is of the opinion that a report is unnecessary in all the circumstances of the case.
  • It may be helpful to indicate to the Probation Service the court’s preliminary opinion as to which of the three sentencing ranges is relevant and the purpose(s) of sentencing that the package of requirements is expected to fulfil. Ideally a pre-sentence report should be completed on the same day to avoid adjourning the case. If an adjournment cannot be avoided, the information should be provided to the Probation Service in written form and a copy retained on the court file for the benefit of the sentencing court. However, the court must make clear to the offender that all sentencing options remain open including, in appropriate cases, committal for sentence to the Crown Court.
Low Medium High
Offences only just cross community order threshold, where the seriousness of the offence or the nature of the offender’s record means that a discharge or fine is inappropriate

In general, only one requirement will be appropriate and the length may be curtailed if additional requirements are necessary

Offences that obviously fall within the community order band Offences only just fall below the custody threshold or the custody threshold is crossed but a community order is more appropriate in the circumstances

More intensive sentences which combine two or more requirements may be appropriate

Suitable requirements might include:

  • Any appropriate rehabilitative requirement(s)
  • 40 – 80 hours of unpaid work
  • Curfew requirement for example up to 16 hours per day for a few weeks**
  • Exclusion requirement, for a few months
  • Prohibited activity requirement
Suitable requirements might include:

  • Any appropriate rehabilitative requirement(s)
  •  80 – 150 hours of unpaid work
  • Curfew requirement for example up to 16 hours per day for 2 – 3 months**
  • Exclusion requirement lasting in the region of 6 months
  • Prohibited activity requirement
Suitable requirements might include:

  • Any appropriate rehabilitative requirement(s)
  • 150 – 300 hours of unpaid work
  • Curfew requirement for example up to 16 hours per day for 4 – 12 months**
  • Exclusion requirement lasting in the region of 12 months

* If order does not contain a punitive requirement, suggested fine levels are indicated below:

BAND A FINE

BAND B FINE

BAND C FINE

**Note: Changes to the curfew requirements brought in by the Police, Crime, Sentencing and Courts Act 2022 are set out in the Requirements section in the Overarching Guideline: Imposition of community and custodial sentences, but are not reflected in the ranges above.

Custodial sentences

Sentencing flowcharts are available at Imposition of Community and Custodial Sentences definitive guideline.


The approach to the imposition of a custodial sentence should be as follows:

1) Has the custody threshold been passed?

  • A custodial sentence must not be imposed unless the offence or the combination of the offence and one or more offences associated with it was so serious that neither a fine alone nor a community sentence can be justified for the offence.
  • There is no general definition of where the custody threshold lies. The circumstances of the individual offence and the factors assessed by offence-specific guidelines will determine whether an offence is so serious that neither a fine alone nor a community sentence can be justified. Where no offence specific guideline is available to determine seriousness, the harm caused by the offence, the culpability of the offender and any previous convictions will be relevant to the assessment.
  • The clear intention of the threshold test is to reserve prison as a punishment for the most serious offences.

2) Is it unavoidable that a sentence of imprisonment be imposed?

  • Passing the custody threshold does not mean that a custodial sentence should be deemed inevitable. Custody should not be imposed where a community order could provide sufficient restriction on an offender’s liberty (by way of punishment) while addressing the rehabilitation of the offender to prevent future crime.
  • For offenders on the cusp of custody, imprisonment should not be imposed where there would be an impact on dependants which would make a custodial sentence disproportionate to achieving the aims of sentencing.

3) What is the shortest term commensurate with the seriousness of the offence?

  • In considering this the court must NOT consider any licence or post sentence supervision requirements which may subsequently be imposed upon the offender’s release.

4) Can the sentence be suspended?

  • A suspended sentence MUST NOT be imposed as a more severe form of community order. A suspended sentence is a custodial sentence. Sentencers should be clear that they would impose an immediate custodial sentence if the power to suspend were not available. If not, a non-custodial sentence should be imposed.

The following factors should be weighed in considering whether it is possible to suspend the sentence:

Factors indicating that it would not be appropriate to suspend a custodial sentence

Factors indicating that it may be appropriate to suspend a custodial sentence

Offender presents a risk/danger to the public

Realistic prospect of rehabilitation

Appropriate punishment can only be achieved by immediate custody

Strong personal mitigation

History of poor compliance with court orders

Immediate custody will result in significant harmful impact upon others

The imposition of a custodial sentence is both punishment and a deterrent. To ensure that the overall terms of the suspended sentence are commensurate with offence seriousness, care must be taken to ensure requirements imposed are not excessive. A court wishing to impose onerous or intensive requirements should reconsider whether a community sentence might be more appropriate.

Pre-sentence report

Whenever the court reaches the provisional view that:

  • the custody threshold has been passed; and, if so
  • the length of imprisonment which represents the shortest term commensurate with the seriousness of the offence;

the court should obtain a pre-sentence report, whether verbal or written, unless the court considers a report to be unnecessary. Ideally a pre-sentence report should be completed on the same day to avoid adjourning the case.

Magistrates: Consult your legal adviser before deciding to sentence to custody without a pre-sentence report.

Suspended Sentences: General Guidance

i) The guidance regarding pre-sentence reports applies if suspending custody.

ii) If the court imposes a term of imprisonment of between 14 days and 2 years (subject to magistrates’ courts sentencing powers), it may suspend the sentence for between 6 months and 2 years (the ‘operational period’). The time for which a sentence is suspended should reflect the length of the sentence; up to 12 months might normally be appropriate for a suspended sentence of up to 6 months.

iii) Where the court imposes two or more sentences to be served consecutively, the court may suspend the sentence where the aggregate of the terms is between 14 days and 2 years (subject to magistrates’ courts sentencing powers).

iv) When the court suspends a sentence, it may impose one or more requirements for the offender to undertake in the community. The requirements are identical to those available for community orders, see the guideline on Imposition of Community and Custodial Sentences.

v) A custodial sentence that is suspended should be for the same term that would have applied if the sentence was to be served immediately.

Below is a non-exhaustive list of additional elements providing the context of the offence and factors relating to the offender.  Identify whether a combination of these or other relevant factors should result in any upward or downward adjustment from the sentence arrived at so far.

Factors increasing seriousness

Statutory aggravating factors:

  • Previous convictions,

    Effective from: 01 October 2019

    Care should be taken to avoid double counting factors including those already taken into account in assessing culpability or harm or those inherent in the offence

    Guidance on the use of previous convictions

    The following guidance should be considered when seeking to determine the degree to which previous convictions should aggravate sentence:

    Section 65 of the Sentencing Code states that:

    (1) This section applies where a court is considering the seriousness of an offence (“the current offence”) committed by an offender who has one or more relevant previous convictions.

    (2) The court must treat as an aggravating factor each relevant previous conviction that it considers can reasonably be so treated, having regard in particular to— (a) the nature of the offence to which the conviction relates and its relevance to the current offence, and (b) the time that has elapsed since the conviction.

    (3) Where the court treats a relevant previous conviction as an aggravating factor under subsection (2) it must state in open court that the offence is so aggravated.

    1. Previous convictions are considered at step two in the Council’s offence-specific guidelines.
    2. The primary significance of previous convictions (including convictions in other jurisdictions) is the extent to which they indicate trends in offending behaviour and possibly the offender’s response to earlier sentences.
    3. Previous convictions are normally of relevance to the current offence when they are of a similar type.
    4. Previous convictions of a type different from the current offence may be of relevance where they are an indication of persistent offending or escalation and/or a failure to comply with previous court orders.
    5. Numerous and frequent previous convictions might indicate an underlying problem (for example, an addiction) that could be addressed more effectively in the community and will not necessarily indicate that a custodial sentence is necessary.
    6. If the offender received a non-custodial disposal for the previous offence, a court should not necessarily move to a custodial sentence for the fresh offence.
    7. In cases involving significant persistent offending, the community and custody thresholds may be crossed even though the current offence normally warrants a lesser sentence. If a custodial sentence is imposed it should be proportionate and kept to the necessary minimum.
    8. The aggravating effect of relevant previous convictions reduces with the passage of time; older convictions are of less relevance to the offender’s culpability for the current offence and less likely to be predictive of future offending.
    9. Where the previous offence is particularly old it will normally have little relevance for the current sentencing exercise.
    10. The court should consider the time gap since the previous conviction and the reason for it. Where there has been a significant gap between previous and current convictions or a reduction in the frequency of offending this may indicate that the offender has made attempts to desist from offending in which case the aggravating effect of the previous offending will diminish.
    11. Where the current offence is significantly less serious than the previous conviction (suggesting a decline in the gravity of offending), the previous conviction may carry less weight.
    12. When considering the totality of previous offending a court should take a rounded view of the previous crimes and not simply aggregate the individual offences.
    13. Where information is available on the context of previous offending this may assist the court in assessing the relevance of that prior offending to the current offence
    having regard to a) the nature of the offence to which the conviction relates and its relevance to the current offence; and b) the time that has elapsed since the conviction
  • Offence committed whilst on bail

    Effective from: 01 October 2019

    Care should be taken to avoid double counting factors including those already taken into account in assessing culpability or harm or those inherent in the offence

    Section 64 of the Sentencing Code states:

    In considering the seriousness of any offence committed while the offender was on bail, the court must - (a) treat the fact that it was committed in those circumstances as an aggravating factor and (b) state in open court that the offence is so aggravated.  

  • Offence motivated by, or demonstrating hostility based on any of the following characteristics or presumed characteristics of the victim: religion, race, disability, sexual orientation or transgender identity

    Effective from: 01 October 2019

    Care should be taken to avoid double counting factors including those already taken into account in assessing culpability or harm or those inherent in the offence

    See below for the statutory provisions.

    • Note the requirement for the court to state that the offence has been aggravated by the relevant hostility.
    • Where the element of hostility is core to the offending, the aggravation will be higher than where it plays a lesser role.

    Section 66 of the Sentencing Code states:

    Hostility (1) This section applies where a court is considering the seriousness of an offence which is aggravated by—

    (a) racial hostility,

    (b) religious hostility,

    (c) hostility related to disability,

    (d) hostility related to sexual orientation, or

    (e) hostility related to transgender identity.

    This is subject to subsection (3). (2) The court—

    (a) must treat the fact that the offence is aggravated by hostility of any of those types as an aggravating factor, and

    (b) must state in open court that the offence is so aggravated.

    (3) So far as it relates to racial and religious hostility, this section does not apply in relation to an offence under sections 29 to 32 of the Crime and Disorder Act 1998 (racially or religiously aggravated offences). (4) For the purposes of this section, an offence is aggravated by hostility of one of the kinds mentioned in subsection (1) if—

    (a) at the time of committing the offence, or immediately before or after doing so, the offender demonstrated towards the victim of the offence hostility based on—

    (i) the victim’s membership (or presumed membership) of a racial group,

    (ii) the victim’s membership (or presumed membership) of a religious group,

    (iii) a disability (or presumed disability) of the victim,

    (iv) the sexual orientation (or presumed sexual orientation) of the victim, or (as the case may be)

    (v) the victim being (or being presumed to be) transgender, or

    (b) the offence was motivated (wholly or partly) by—

    (i) hostility towards members of a racial group based on their membership of that group,

    (ii) hostility towards members of a religious group based on their membership of that group,

    (iii) hostility towards persons who have a disability or a particular disability,

    (iv) hostility towards persons who are of a particular sexual orientation, or (as the case may be)

    (v) hostility towards persons who are transgender.

    (5) For the purposes of paragraphs (a) and (b) of subsection (4), it is immaterial whether or not the offender’s hostility is also based, to any extent, on any other factor not mentioned in that paragraph. (6) In this section—

    (a) references to a racial group are to a group of persons defined by reference to race, colour, nationality (including citizenship) or ethnic or national origins;

    (b) references to a religious group are to a group of persons defined by reference to religious belief or lack of religious belief;

    (c) “membership” in relation to a racial or religious group, includes association with members of that group;

    (d) “disability” means any physical or mental impairment;

    (e) references to being transgender include references to being transsexual, or undergoing, proposing to undergo or having undergone a process or part of a process of gender reassignment;

    (f) “presumed” means presumed by the offender.

     

Other aggravating factors:

  • Child at home (or returns home) when offence committed
  • Offence committed at night
  • Restraint, detention or additional gratuitous degradation of the victim

    Effective from: 01 October 2019

    Care should be taken to avoid double counting factors including those already taken into account in assessing culpability or harm or those inherent in the offence

    Where an offender deliberately causes additional harm to a victim over and above that which is an essential element of the offence - this will increase seriousness. Examples may include, but are not limited to, posts of images on social media designed to cause additional distress to the victim.

    Where any such actions are the subject of separate charges, this should be taken into account when assessing totality.

    When sentencing young adult offenders (typically aged 18-25), consideration should also be given to the guidance on the mitigating factor relating to age and/or lack of maturity when considering the significance of this factor.

  • Vulnerable victim (where not already taken into account at step one)

    Effective from: 01 October 2019

    Care should be taken to avoid double counting factors including those already taken into account in assessing culpability or harm or those inherent in the offence

    • An offence is more serious if the victim is vulnerable because of personal circumstances such as (but not limited to) age, illness or disability (unless the vulnerability of the victim is an element of the offence).
    • Other factors such as the victim being isolated, incapacitated through drink or being in an unfamiliar situation may lead to a court considering that the offence is more serious.
    • The extent to which any vulnerability may impact on the sentence is a matter for the court to weigh up in each case.
    • Culpability will be increased if the offender targeted a victim because of an actual or perceived vulnerability.
    • Culpability will be increased if the victim is made vulnerable by the actions of the offender (such as a victim who has been intimidated or isolated by the offender).
    • Culpability is increased if an offender persisted in the offending once it was obvious that the victim was vulnerable (for example continuing to attack an injured victim).
    • The level of harm (physical, psychological or financial) is likely to be increased if the victim is vulnerable.
  • Victim compelled to leave their home
  • Offence was committed as part of a group

    Effective from: 01 October 2019

    Care should be taken to avoid double counting factors including those already taken into account in assessing culpability or harm or those inherent in the offence

    The mere membership of a group (two or more persons) should not be used to increase the sentence, but where the offence was committed as part of a group this will normally make it more serious because:

    • the harm caused (both physical or psychological) or the potential for harm may be greater and/or
    • the culpability of the offender may be higher (the role of the offender within the group will be a relevant consideration).

    Culpability based on role in group offending could range from:

    • Higher culpability indicated by a leading role in the group and/or the involvement by the offender of others through coercion, intimidation or exploitation, to
    • Lower culpability indicated by a lesser or subordinate role under direction and/or involvement of the offender through coercion, intimidation or exploitation.

    Courts should be alert to factors that suggest that an offender may have been the subject of coercion, intimidation or exploitation (including as a result of domestic abuse, trafficking or modern slavery) which the offender may find difficult to articulate, and where appropriate ask for this to be addressed in a PSR.

    Where the offending is part of an organised criminal network, this will make it more serious, and the role of the offender in the organisation will also be relevant.

    When sentencing young adult offenders (typically aged 18-25), consideration should also be given to the guidance on the mitigating factor relating to age and/or lack of maturity when considering the significance of group offending.

  • Offences taken into consideration

    Effective from: 01 October 2019

    Care should be taken to avoid double counting factors including those already taken into account in assessing culpability or harm or those inherent in the offence

    Taken from the Offences Taken into Consideration Definitive Guideline: General principles When sentencing an offender who requests offences to be taken into consideration (TICs), courts should pass a total sentence which reflects all the offending behaviour. The sentence must be just and proportionate and must not exceed the statutory maximum for the conviction offence. Offences to be Taken into Consideration The court has discretion as to whether or not to take TICs into account. In exercising its discretion the court should take into account that TICs are capable of reflecting the offender's overall criminality. The court is likely to consider that the fact that the offender has assisted the police (particularly if the offences would not otherwise have been detected) and avoided the need for further proceedings demonstrates a genuine determination by the offender to ‘wipe the slate clean’. It is generally undesirable for TICs to be accepted in the following circumstances:

    • where the TIC is likely to attract a greater sentence than the conviction offence;
    • where it is in the public interest that the TIC should be the subject of a separate charge;
    • where the offender would avoid a prohibition, ancillary order or similar consequence which it would have been desirable to impose on conviction. For example:
      • where the TIC attracts mandatory disqualification or endorsement and the offence(s) for which the defendant is to be sentenced do not;
    • where the TIC constitutes a breach of an earlier sentence;
    • where the TIC is a specified offence for the purposes of section 306 of the Sentencing Code, but the conviction offence is non-specified; or
    • where the TIC is not founded on the same facts or evidence or part of a series of offences of the same or similar character (unless the court is satisfied that it is in the interests of justice to do so).

    Jurisdiction The magistrates' court cannot take into consideration an indictable only offence. The Crown Court can take into account summary only offences provided the TICs are founded on the same facts or evidence as the indictable charge, or are part of a series of offences of the same or similar character as the indictable conviction offence Procedural safeguards A court should generally only take offences into consideration if the following procedural provisions have been satisfied:

    • the police or prosecuting authorities have prepared a schedule of offences (TIC schedule) that they consider suitable to be taken into consideration. The TIC schedule should set out the nature of each offence, the date of the offence(s), relevant detail about the offence(s) (including, for example, monetary values of items) and any other brief details that the court should be aware of;
    • a copy of the TIC schedule must be provided to the defendant and his representative (if he has one) before the sentence hearing. The defendant should sign the TIC schedule to provisionally admit the offences;
    • at the sentence hearing, the court should ask the defendant in open court whether he admits each of the offences on the TIC schedule and whether he wishes to have them taken into consideration;
    • if there is any doubt about the admission of a particular offence, it should not be accepted as a TIC. Special care should be taken with vulnerable and/or unrepresented defendants;
    • if the defendant is committed to the Crown Court for sentence, this procedure must take place again at the Crown Court even if the defendant has agreed to the schedule in the magistrates' court.

    Application The sentence imposed on an offender should, in most circumstances, be increased to reflect the fact that other offences have been taken into consideration. The court should:

    1. Determine the sentencing starting point for the conviction offence, referring to the relevant definitive sentencing guidelines. No regard should be had to the presence of TICs at this stage.
    2. Consider whether there are any aggravating or mitigating factors that justify an upward or downward adjustment from the starting point.

    The presence of TlCs should generally be treated as an aggravating feature that justifies an adjustment from the starting point. Where there is a large number of TICs, it may be appropriate to move outside the category range, although this must be considered in the context of the case and subject to the principle of totality. The court is limited to the statutory maximum for the conviction offence.

    1. Continue through the sentencing process including:
    • consider whether the frank admission of a number of offences is an indication of a defendant's remorse or determination and/ or demonstration of steps taken to address addiction or offending behaviour;
    • any reduction for a guilty plea should be applied to the overall sentence;
    • the principle of totality;
    • when considering ancillary orders these can be considered in relation to any or all of the TICs, specifically:
      • compensation orders;
      • restitution orders
  • Any steps taken to prevent the victim reporting the incident or obtaining assistance and/or from assisting or supporting the prosecution

    Effective from: 01 October 2019

    Care should be taken to avoid double counting factors including those already taken into account in assessing culpability or harm or those inherent in the offence

    The more sophisticated, extensive or persistent the actions after the event, the more likely it is to increase the seriousness of the offence.

    When sentencing young adult offenders (typically aged 18-25), consideration should also be given to the guidance on the mitigating factor relating to age and lack of maturity when considering the significance of such conduct.

    Where any such actions are the subject of separate charges, this should be taken into account when assessing totality.

  • Offence committed on licence or post sentence supervision or while subject to court order(s)

    Effective from: 01 October 2019

    Care should be taken to avoid double counting factors including those already taken into account in assessing culpability or harm or those inherent in the offence

    • An offender who is subject to licence or post sentence supervision is under a particular obligation to desist from further offending.
    • The extent to which the offender has complied with the conditions of a licence or order (including the time that has elapsed since its commencement) will be a relevant consideration.
    • Where the offender is dealt with separately for a breach of a licence or order regard should be had to totality.
    • Care should be taken to avoid double counting matters taken into account when considering previous convictions.

    When sentencing young adult offenders (typically aged 18-25), consideration should also be given to the guidance on the mitigating factor relating to age and/or lack of maturity when considering the significance of this factor.

  • Commission of offence whilst under the influence of alcohol or drugs

    Effective from: 01 October 2019

    Care should be taken to avoid double counting factors including those already taken into account in assessing culpability or harm or those inherent in the offence

    The fact that an offender is voluntarily intoxicated at the time of the offence will tend to increase the seriousness of the offence provided that the intoxication has contributed to the offending.

    This applies regardless of whether the offender is under the influence of legal or illegal substance(s).

    In the case of a person addicted to drugs or alcohol the intoxication may be considered not to be voluntary, but the court should have regard to the extent to which the offender has sought help or engaged with any assistance which has been offered or made available in dealing with the addiction.

    An offender who has voluntarily consumed drugs and/or alcohol must accept the consequences of the behaviour that results, even if it is out of character.

     

  • Established evidence of community impact

    Effective from: 01 October 2019

    Care should be taken to avoid double counting factors including those already taken into account in assessing culpability or harm or those inherent in the offence

    • This factor should increase the sentence only where there is clear evidence of wider harm not already taken into account elsewhere. A community impact statement will assist the court in assessing the level of impact.
    • For issues of prevalence see the separate guidance.

Factors reducing seriousness or reflecting personal mitigation

  • Offender has made voluntary reparation to the victim
  • The offender was in a lesser or subordinate role if acting with others/performed limited role under direction

    Effective from: 01 October 2019

    Care should be taken to avoid double counting factors including those already taken into account in assessing culpability or harm

    Whereas acting as part of a group may make an offence more serious, if the offender’s role was minor this may indicate lower culpability and justify a reduction in sentence.

  • No previous convictions or no relevant/recent convictions

    Effective from: 01 October 2019

    Care should be taken to avoid double counting factors including those already taken into account in assessing culpability or harm

    • First time offenders usually represent a lower risk of reoffending. Reoffending rates for first offenders are significantly lower than rates for repeat offenders. In addition, first offenders are normally regarded as less blameworthy than offenders who have committed the same crime several times already. For these reasons first offenders receive a mitigated sentence.
    • Where there are previous offences but these are old and /or are for offending of a different nature, the sentence will normally be reduced to reflect that the new offence is not part of a pattern of offending and there is therefore a lower likelihood of reoffending.
    • When assessing whether a previous conviction is ‘recent’ the court should consider the time gap since the previous conviction and the reason for it. 
    • Previous convictions are likely to be ‘relevant’ when they share characteristics with the current offence (examples of such characteristics include, but are not limited to: dishonesty, violence, abuse of position or trust, use or possession of weapons, disobedience of court orders).  In general the more serious the previous offending the longer it will retain relevance.
  • Remorse

    Effective from: 01 October 2019

    Care should be taken to avoid double counting factors including those already taken into account in assessing culpability or harm

    The court will need to be satisfied that the offender is genuinely remorseful for the offending behaviour in order to reduce the sentence (separate from any guilty plea reduction).

    Lack of remorse should never be treated as an aggravating factor.

    Remorse can present itself in many different ways. A simple assertion of the fact may be insufficient, and the offender’s demeanour in court could be misleading, due to nervousness, a lack of understanding of the system, a belief that they have been or will be discriminated against, peer pressure to behave in a certain way because of others present, a lack of maturity etc. If a PSR has been prepared it may provide valuable assistance in this regard.

     

  • Good character and/or exemplary conduct

    Effective from: 01 October 2019

    Care should be taken to avoid double counting factors including those already taken into account in assessing culpability or harm

    This factor may apply whether or not the offender has previous convictions.  Evidence that an offender has demonstrated positive good character through, for example, charitable works may reduce the sentence. 

    However, this factor is less likely to be relevant where the offending is very serious.  Where an offender has used their good character or status to facilitate or conceal the offending it could be treated as an aggravating factor.

  • Determination, and/or demonstration of steps taken to address addiction or offending behaviour

    Effective from: 01 October 2019

    Care should be taken to avoid double counting factors including those already taken into account in assessing culpability or harm or those inherent in the offence

    Where offending is driven by or closely associated with drug or alcohol abuse (for example stealing to feed a habit, or committing acts of disorder or violence whilst drunk) a commitment to address the underlying issue may justify a reduction in sentence.  This will be particularly relevant where the court is considering whether to impose a sentence that focuses on rehabilitation.

    Similarly, a commitment to address other underlying issues that may influence the offender’s behaviour may justify the imposition of a sentence that focusses on rehabilitation.

    The court will be assisted by a PSR in making this assessment.

  • Physical disability or serious medical conditions requiring urgent, intensive or long-term treatment

    Effective from: 01 October 2019

    Care should be taken to avoid double counting factors including those already taken into account in assessing culpability or harm or those inherent in the offence

    • The court can take account of physical disability or a serious medical condition by way of mitigation as a reason for reducing the length of the sentence, either on the ground of the greater impact which imprisonment will have on the offender, or as a matter of generally expressed mercy in the individual circumstances of the case.
    • However, such a condition, even when it is difficult to treat in prison, will not automatically entitle the offender to a lesser sentence than would otherwise be appropriate.
    • There will always be a need to balance issues personal to an offender against the gravity of the offending (including the harm done to victims), and the public interest in imposing appropriate punishment for serious offending.
    • A terminal prognosis is not in itself a reason to reduce the sentence even further. The court must impose a sentence that properly meets the aims of sentencing even if it will carry the clear prospect that the offender will die in custody. The prospect of death in the near future will be a matter considered by the prison authorities and the Secretary of State under the early release on compassionate grounds procedure (ERCG).
    • But, an offender’s knowledge that he will likely face the prospect of death in prison, subject only to the ERCG provisions, is a factor that can be considered by the sentencing judge when determining the sentence that it would be just to impose.
  • Mental disorder or learning disability, where not linked to the commission of the offence

    Effective from: 01 October 2020

    Care should be taken to avoid double counting factors including those already taken into account in assessing culpability or harm or those inherent in the offence

    Refer to the Sentencing offenders with mental disorders, developmental disorders, or neurological impairments guideline.

    Note in particular paragraph 5 for Black, Asian and Minority Ethnic offenders.

  • Age and/or lack of maturity

    Effective from: 01 October 2019

    Care should be taken to avoid double counting factors including those already taken into account in assessing culpability or harm

    Age and/or lack of maturity can affect:

    • the offender’s responsibility for the offence and
    • the effect of the sentence on the offender.

    Either or both of these considerations may justify a reduction in the sentence.

    The emotional and developmental age of an offender is of at least equal importance to their chronological age (if not greater). 

    In particular young adults (typically aged 18-25) are still developing neurologically and consequently may be less able to:

    • evaluate the consequences of their actions
    • limit impulsivity
    • limit risk taking

    Young adults are likely to be susceptible to peer pressure and are more likely to take risks or behave impulsively when in company with their peers.

    Immaturity can also result from atypical brain development. Environment plays a role in neurological development and factors such as adverse childhood experiences including deprivation and/or abuse may affect development.

    An immature offender may find it particularly difficult to cope with custody and therefore may be more susceptible to self-harm in custody.

    An immature offender may find it particularly difficult to cope with the requirements of a community order without appropriate support.

    There is a greater capacity for change in immature offenders and they may be receptive to opportunities to address their offending behaviour and change their conduct.

    Many young people who offend either stop committing crime, or begin a process of stopping, in their late teens and early twenties.  Therefore a young adult’s previous convictions may not be indicative of a tendency for further offending.

    Where the offender is a care leaver the court should enquire as to any effect a sentence may have on the offender’s ability to make use of support from the local authority. (Young adult care leavers are entitled to time limited support. Leaving care services may change at the age of 21 and cease at the age of 25, unless the young adult is in education at that point). See also the Sentencing Children and Young People Guideline (paragraphs 1.16 and 1.17).

    Where an offender has turned 18 between the commission of the offence and conviction the court should take as its starting point the sentence likely to have been imposed on the date at which the offence was committed, but applying the purposes of sentencing adult offenders. See also the Sentencing Children and Young People Guideline (paragraphs 6.1 to 6.3).

    When considering a custodial or community sentence for a young adult the Probation Service should address these issues in a PSR.

  • Delay since apprehension

    Effective from: 01 October 2019

    Care should be taken to avoid double counting factors including those already taken into account in assessing culpability or harm

    Where there has been an unreasonable delay in proceedings since apprehension which is not the fault of the offender, the court may take this into account by reducing the sentence if this has had a detrimental effect on the offender.

    Note: No fault should attach to an offender for not admitting an offence and/or putting the prosecution to proof of its case.

     

  • Sole or primary carer for dependent relatives

    Effective from: 01 October 2019

    Care should be taken to avoid double counting factors including those already taken into account in assessing culpability or harm

    This factor is particularly relevant where an offender is on the cusp of custody or where the suitability of a community order is being considered.  See also the Imposition of community and custodial sentences guideline.

    For offenders on the cusp of custody, imprisonment should not be imposed where there would be an impact on dependants which would make a custodial sentence disproportionate to achieving the aims of sentencing.

    Where custody is unavoidable consideration of the impact on dependants may be relevant to the length of the sentence imposed and whether the sentence can be suspended.

    For more serious offences where a substantial period of custody is appropriate, this factor will carry less weight.

    ­When imposing a community sentence on an offender with primary caring responsibilities the effect on dependants must be considered in determining suitable requirements.

    In addition when sentencing an offender who is pregnant relevant considerations may include:

    • any effect of the sentence on the health of the offender and
    • any effect of the sentence on the unborn child

    The court should ensure that it has all relevant information about dependent children before deciding on sentence.

    When an immediate custodial sentence is necessary, the court must consider whether proper arrangements have been made for the care of any dependent children and if necessary consider adjourning sentence for this to be done.

    When considering a community or custodial sentence for an offender who has, or may have, caring responsibilities the court should ask the Probation Service to address these issues in a PSR.

    Useful information can be found in the Equal Treatment Bench Book (see in particular Chapter 6 paragraphs 131 to 137)

Step 3 – Consider any factors which indicate a reduction for assistance to the prosecution

The court should take into account section 74 of the Sentencing Code (reduction in sentence for assistance to prosecution) and any other rule of law by virtue of which an offender may receive a discounted sentence in consequence of assistance given (or offered) to the prosecutor or investigator.

Step 4 – Reduction for guilty pleas

The court should take account of any potential reduction for a guilty plea in accordance with section 73 of the Sentencing Code and the Reduction in Sentence for a Guilty Plea guideline. Where a minimum sentence is imposed under section 314 of the Sentencing Code, the sentence must not be less than 80 percent of the appropriate custodial period after any reduction for a guilty plea.

Step 5 – Dangerousness

A burglary offence under section 9 Theft Act 1968 is a specified offence if it was committed with the intent to (a) inflict grievous bodily harm on a person, or (b) do unlawful damage to a building or anything in it. The court should consider whether having regard to the criteria contained in section 308 of the Sentencing Code it would be appropriate to impose an extended sentence (sections 266 and 279).

Step 6 – Totality principle

If sentencing an offender for more than one offence, or where the offender is already serving a sentence, consider whether the total sentence is just and proportionate to the overall offending behaviour in accordance with the Totality guideline.

Step 7 – Compensation and ancillary orders

In all cases the court should consider whether to make compensation and/or other ancillary orders. The court must give reasons if it decides not to order compensation (Sentencing Code, s.55).

Step 8 – Reasons

Section 52 of the Sentencing Code imposes a duty to give reasons for, and explain the effect of, the sentence.

Step 9 – Consideration for time spent on bail (tagged curfew)

The court must consider whether to give credit for time spent on bail in accordance with section 240A of the Criminal Justice Act 2003 and section 325 of the Sentencing Code.