General guideline: sentencing offences for which there is no definitive guideline - for consultation only

Effective from: to be confirmed (draft for consultation only)

Step 1 Reaching a provisional sentence
Step 2 Aggravating and mitigating factors
Step 3 to Step 9


Applicability

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

Section 125(1) of the Coroners and Justice Act 2009 provides that when sentencing offences committed after 6 April 2010:

“Every court –

  1. must, in sentencing an offender, follow any sentencing guideline which is 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.”

General principles to be considered in the sentencing of youths are in the Sentencing Council’s definitive guideline: Overarching Principles – Sentencing Children and Young People.

Throughout this guideline, additional information is provided to amplify and explain the principles and factors used. Click on +/- to open/close drop-down boxes such as Applicability (above) or click on any text with a dotted underline.

Step 1 Reaching a provisional sentence

a) Where there is no definitive sentencing guideline for the offence, to arrive at a provisional sentence the court should take account of all of the following (if they apply):

  • the statutory maximum sentence (and if appropriate minimum sentence) for the offence;
  • sentencing judgments of the Court of Appeal (Criminal Division) for the offence; and
  • definitive sentencing guidelines for analogous offences

For the avoidance of doubt the court should not take account of any draft sentencing guidelines or definitive guidelines that are not yet in force.

b) When considering definitive guidelines for analogous offences the court must make adjustments for any differences in the statutory maximum sentence and in the elements of the offence:

  • Where possible the court should follow the stepped approach of sentencing guidelines to arrive at the sentence.
  • The seriousness of the offence is assessed by considering:
    • the culpability of the offender,

      Culpability is assessed with reference to the offender’s role, level of intention and/or premeditation and the extent and sophistication of planning.

      • The court should balance these characteristics to reach a fair assessment of the offender’s overall culpability in the context of the circumstances of the offence.
      • The relevance of factors will vary depending on the type of offending. Where a characteristic is inherent in the offence, the mere presence of that characteristic will not be determinative of the level of culpability.
      • Deliberate or gratuitous violence or damage to property, over and above what is needed to carry out the offence will normally indicate a higher level of culpability.
      • For offences where there is no requirement for the offender to have any level of intention, recklessness, negligence, dishonesty, knowledge, understanding or foresight for the offence to be made out, the range of culpability may be inferred from the circumstances of the offence as follows:

      Highest level

      Lowest level

      Deliberate – intentional act or omission
      Reckless – acted or failed to act regardless of the foreseeable risk
      Negligent – failed to take steps to guard against the act or omission
      Low/no culpability – act or omission with none of the above features
      • For offences that require some level of culpability (eg intention, recklessness or knowledge) to be made out, the range of culpability will be narrower. Relevant factors may typically include but are not limited to:

      Highest level

      Lowest level

      High level of planning/ sophistication/ leading role
      Some planning/ significant role
      Little or no planning/ minor role
      • These models of assessing culpability will not be applicable to all offences

      and
    • the harm caused by the offending.

      Harm – caused, risked and/or intended

      • There may be primary and secondary victims of an offence and, depending on the offence, victims may include one or more individuals, a community, the general public, the state, the environment and/or animal(s). In some cases there may not be an identifiable victim.
      • An assessment of harm should generally reflect the overall impact of the offence upon the victim(s) and may include direct harm (including physical injury, psychological harm and financial loss) and consequential harm.
      • When considering the value of property lost or damaged the court should also take account of any sentimental value to the victim(s); and any disruption caused to a victim’s life, activities or business.
      • Where harm was intended but no harm or a lower level of harm resulted – the sentence will normally be assessed with reference to the level of harm intended.
      • Where the harm caused is greater than that intended – the sentence will normally be assessed with reference to the level of harm suffered by the victim.
      • Dealing with a risk of harm involves consideration of both the likelihood of harm occurring and the extent of it if it does.
      • Risk of harm is less serious than the same actual harm. Where the offence has caused risk of harm but no (or less) actual harm the normal approach is to move down to the next category of harm. This may not be appropriate if either the likelihood or extent of potential harm is particularly high.
      • A victim personal statement (VPS) may assist the court in assessing harm, but the absence of a VPS should not be taken to indicate the absence of harm.

  • The initial assessment of harm and culpability should take no account of plea or previous convictions.

c) The court should consider which of the five purposes of sentencing (below) it is seeking to achieve through the sentence that is imposed. More than one purpose might be relevant and the importance of each must be weighed against the particular offence and offender characteristics when determining sentence.

  • The punishment of offenders
  • The reduction of crime (including its reduction by deterrence)
  • The reform and rehabilitation of offenders
  • The protection of the public
  • The making of reparation by offenders to persons affected by their offences

Step 2 Aggravating and mitigating factors

Once a provisional sentence is arrived at the court should take into account factors that may make the offence more serious and factors which may reduce seriousness or reflect personal mitigation.

  • 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.
  • It is for the sentencing court to determine how much weight should be assigned to the aggravating and mitigating factors taking into account all of the circumstances of the offence and the offender. Not all factors that apply will necessarily influence the sentence.
  • When sentencing an offence for which a
    fixed penalty notice was available the reason why the offender did not take advantage of the fixed penalty will be a relevant consideration.

Penalty notices may be issued as an alternative to prosecution in respect of a range of offences. An admission of guilt is not a prerequisite to issuing a penalty notice.

  • An offender who is issued with a penalty notice may nevertheless be prosecuted for the offence if he or she:
  • asks to be tried for the offence; or
  • fails to pay the penalty within the period stipulated in the notice and the prosecutor decides to proceed with charges.
  • In some cases of non-payment, the penalty is automatically registered and enforceable as a fine without need for recourse to the courts. This procedure applies to penalty notices for disorder and fixed penalty notices issued in respect of certain road traffic offences but not to fixed penalty notices issued for most other criminal offences

When sentencing in cases in which a penalty notice was available:

  • the fact that the offender did not take advantage of the penalty (whether that was by requesting a hearing or failing to pay within the specified timeframe) does not increase the seriousness of the offence and must not be regarded as an aggravating factor. The appropriate sentence must be determined in accordance with the sentencing principles set out in this guideline (including the amount of any fine, which must take an offender’s financial circumstances into account), disregarding the availability of the penalty;
  • where a penalty notice could not be offered or taken up for reasons unconnected with the offence itself, such as administrative difficulties outside the control of the offender, the starting point should be a fine equivalent to the amount of the penalty and no order of costs should be imposed. The offender should not be disadvantaged by the unavailability of the penalty notice in these circumstances.

Where an offender has had previous penalty notice(s), the fact that an offender has previously been issued with a penalty notice does not increase the seriousness of the current offence and must not be regarded as an aggravating factor. It may, however, properly influence the court’s assessment of the offender’s suitability for a particular sentence, so long as it remains within the limits established by the seriousness of the current offence.