This guideline should be read alongside the definitive guideline for sentencing children and young people, which provides comprehensive guidance on the sentencing principles and welfare considerations that the court should have in mind when sentencing children and young people.

This offence is subject to statutory minimum sentencing provisions. See Step 5 for further details.

The first step in determining the sentence is to assess the seriousness of the offence. This assessment is made by considering the nature of the offence and any aggravating and mitigating factors relating to the offence itself. The fact that a sentence threshold is crossed does not necessarily mean that that sentence should be imposed.

This guideline applies to all children or young people who are sentenced on or after 1 June 2018, regardless of the date of the 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.

Step 1 – Offence seriousness – nature of the offence

The lists below give examples of the type of culpability and harm factors that may indicate that a particular threshold of sentence has been crossed.

A non-custodial sentence* may be the most suitable disposal where one or more of the following factors apply

• Possession of weapon falls just short of reasonable excuse
• No/minimal risk of weapon being used to threaten or cause harm
• Fleeting incident and no/minimal distress

A custodial sentence or youth rehabilitation order with intensive supervision and surveillance* or fostering* may be justified where one or more of the following factors apply

• Possession of a bladed article whether produced or not
• Possession of a highly dangerous weapon† whether produced or not
• 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
• Prolonged incident and serious alarm/distress
• Offence committed at a school or other place where vulnerable people may be present

* Where the child or young person appears in the magistrates’ court, and the conditions for a compulsory referral order apply, a referral order must be imposed unless the court is considering imposing a discharge, hospital order or custody.

† NB an offensive weapon is defined in legislation as ‘any article made or adapted for use for causing injury, or is intended by the person having it with him for such use’. A highly dangerous weapon is, therefore, a weapon, including a corrosive substance (such as acid), whose dangerous nature must be substantially above and beyond this. The court must determine whether the weapon is highly dangerous on the facts and circumstances of the case.

Step 2 – Offence seriousness – aggravating and mitigating factors

To complete the assessment of seriousness the court should consider the aggravating and mitigating factors relevant to the offence.

Step 3 – Personal mitigation

Having assessed the offence seriousness the court should then consider the mitigation personal to the child or young person to determine whether a custodial sentence or a community sentence is necessary. The effect of personal mitigation may reduce what would otherwise be a custodial sentence to a non-custodial one or a community sentence to a different means of disposal.

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 part one, section five of the Sentencing children and young people – overarching principles definitive guideline. The reduction in sentence for a guilty plea can be taken into account by imposing one type of sentence rather than another; for example:

• by reducing a custodial sentence to a community sentence, or
• by reducing a community sentence to a different means of disposal.

Alternatively the court could reduce the length or severity of any punitive requirements attached to a community sentence.

See the Sentencing children and young people – overarching principles definitive guideline for details of other available sentences including Referral Orders and Reparation Orders.

Step 5 – Statutory minimum sentencing provisions

Threatening with Bladed Articles or Offensive Weapons

When sentencing young people aged 16 or over at the date of conviction for these offences a court must impose a sentence of at least 4 months Detention and Training Order unless:

• (If the offence was committed on or after 28 June 2022) the court is of the opinion that there are exceptional circumstances which relate to the offence or to the young person, and justify not doing so; or
• (If the offence was committed before 28 June 2022) the court is of the opinion that there are particular circumstances relating to the offence or the young person which make it unjust to do so in all the circumstances.

Having Bladed Articles or Offensive Weapons

When sentencing young people who were aged 16 or over on the date of the offence for the offences of:

• having an offensive weapon in a public place;
• having an article with a blade/point in a public place;
• having an offensive weapon on education premises; and
• having an article with blade/point on education premises

a court must impose a sentence of at least 4 months’ Detention and Training Order where this is a second or further relevant offence unless:

• (If the offence was committed on or after 28 June 2022) the court is of the opinion that there are exceptional circumstances which relate to any of the offences or to the young person, and justify not doing so; or
• (If the offence was committed before 28 June 2022) the court is of the opinion that there are particular circumstances relating to the offence, the previous offence or the young person which make it unjust to do so in all the circumstances.

A ‘relevant offence’ includes those offences listed above and the following offences:

• threatening with an offensive weapon in a public place;
• threatening with an article with a blade/point in a public place;
• threatening with an article with a blade/point on education premises; and
• threatening with an offensive weapon on education premises.

Step 6 – Review the sentence

The court must now review the sentence to ensure it is the most appropriate one for the child or young person. This will include an assessment of the likelihood of reoffending and the risk of causing serious harm. A report from the Youth Offending Team may assist.

See the Sentencing children and young people – overarching principles definitive guideline for comprehensive guidance on the sentencing principles and welfare considerations that the court should have in mind when sentencing children and young people, and for the full range of sentences available to the court.

Referral orders

In cases where children or young people have offended for the first time and have pleaded guilty to committing an offence which is on the cusp of the custody threshold, youth offending teams (YOT) should be encouraged to convene a Youth Offender Panel prior to sentence (sometimes referred to as a “pseudo-panel” or “pre-panel”) where the child or young person is asked to attend before a panel and agree an intensive contract. If that contract is placed before the sentencing youth court, the court can then decide whether it is sufficient to move below custody on this occasion.

The proposed contract is not something the court can alter in any way; the court will still have to make a decision between referral order and custody but can do so on the basis that if it makes a referral order it can have confidence in what that will entail in the particular case. The court determines the length of the order but a Referral Order Panel determines the requirements of the order.

Offence seriousness	Suggested length of referral order
Low	3 – 5 months
Medium	5 – 7 months
High	7 – 9 months
Very high	10 – 12 months

The YOT may propose certain requirements and the length of these requirements may not correspond to the above table; if the court feels these requirements will best achieve the aims of the youth justice system then they may still be imposed.

Youth Rehabilitation Order (YRO)

The following table sets out the different levels of intensity that are available under a Youth Rehabilitation Order. The level of intensity and the content of the order will depend upon the court’s assessment of seriousness.

		Requirements of order
Standard	Low likelihood of re-offending and a low risk of serious harm	Primarily seek to repair harm caused through, for example: reparation; unpaid work; supervision; and/or attendance centre.
Enhanced	Medium likelihood of re-offending or a medium risk of serious harm​	Seek to repair harm caused and to enable help or change through, for example: supervision; reparation; requirement to address behaviour e.g. drug treatment, offending behaviour programme, education programme; and/or a combination of the above.
Intensive	High likelihood of re-offending or a very high risk of serious harm	Seek to ensure the control of and enable help or change for the child or young person through, for example: supervision; reparation; requirement to address behaviour; requirement to monitor or restrict movement, e.g. prohibited activity, curfew, exclusion or electronic monitoring; and/or a combination of the above.

YRO with Intensive Supervision and Surveillance (ISS) or YRO with fostering

A YRO with an ISS or fostering requirement can only be imposed where the court is of the opinion that the offence has crossed the custody threshold and custody is merited. The YRO with ISS includes an extended activity requirement, a supervision requirement and curfew. The YRO with fostering requires the child or young person to reside with a local authority foster parent for a specified period of up to 12 months.

Custodial Sentences

If a custodial sentence is imposed, the court must state its reasons for being satisfied that the offence is so serious that no other sanction would be appropriate and, in particular, why a YRO with ISS or fostering could not be justified.

Where a custodial sentence is unavoidable the length of custody imposed must be the shortest commensurate with the seriousness of the offence. The court may want to consider the equivalent adult guideline in order to determine the appropriate length of the sentence.

If considering the adult guideline, the court may feel it appropriate to apply a sentence broadly within the region of half to two thirds of the appropriate adult sentence for those aged 15 – 17 and allow a greater reduction for those aged under 15. This is only a rough guide and must not be applied mechanistically. The individual factors relating to the offence and the child or young person are of the greatest importance and may present good reason to impose a sentence outside of this range.

Misuse of Drugs Act 1971 (section 5(3))

Triable either way unless the defendant could receive the minimum sentence of seven years for a third drug trafficking offence under section 313 of the Sentencing Code, in which case the offence is triable only on indictment.

Class A
Maximum: Life imprisonment
Offence range: High level community order – 16 years’ custody

Class B
Maximum: 14 years’ custody and/ or unlimited fine
Offence range: Band B fine – 10 years’ custody

Class C
Maximum: 14 years’ custody and/ or unlimited fine
Offence range: Band A – 8 years’ custody

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

This offence is subject to statutory minimum sentencing provisions. See Step 3 for further details.

 

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.

Step 1 – Determine the offence category

The court should determine the offender’s culpability (role) and the harm caused (quantity) with reference to the tables below.

In assessing culpability, the sentencer should weigh up all the factors of the case to determine role. Where there are characteristics present which fall under different role categories, or where the level of the offender’s role is affected by the scale of the operation, the court should balance these characteristics to reach a fair assessment of the offender’s culpability.

*Ecstasy tablet quantities based on a typical quantity of 150mg MDMA per tablet.

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 convictions. A case of particular gravity, reflected by multiple features of culpability or harm in step one, could merit upward adjustment from the starting point before further adjustment for aggravating or mitigating features, set out below.

Where the operation is on the most serious and commercial scale, involving a quantity of drugs significantly higher than category 1, sentences of 20 years and above may be appropriate, depending on the offender’s role.

Sentencers should be aware that there is evidence of a disparity in sentence outcomes for this offence which indicates that a higher proportion of Black, Asian and Other ethnicity offenders receive an immediate custodial sentence than White offenders and that for Asian offenders custodial sentence lengths have on average been longer than for White offenders. There may be many reasons for these differences, but in order to apply the guidelines fairly sentencers may find useful information and guidance at Chapter 8 paragraphs 152 to 167 of the Equal Treatment Bench Book.

CLASS A	LEADING ROLE	SIGNIFICANT ROLE	LESSER ROLE
Category 1	Starting point 14 years’ custody	Starting point 10 years’ custody	Starting point 7 years’ custody
	Category range 12 – 16 years’ custody	Category range 9 – 12 years’ custody	Category range 6 – 9 years’ custody
Category 2	Starting point 11 years’ custody	Starting point 8 years’ custody	Starting point 5 years’ custody
	Category range 9 – 13 years’ custody	Category range 6 years 6 months’ – 10 years’ custody	Category range 3 years 6 months’ – 7 years’ custody
Category 3	Starting point 8 years 6 months’ custody	Starting point 4 years 6 months’ custody	Starting point 3 years’ custody
	Category range 6 years 6 months’ – 10 years’ custody	Category range 3 years 6 months’ – 7 years’ custody	Category range 2 – 4 years 6 months’ custody
Category 4	Starting point 5 years 6 months’ custody	Starting point 3 years 6 months’ custody	Starting point 18 months’ custody
	Category range 4 years 6 months’ – 7 years 6 months’ custody	Category range 2 – 5 years’ custody	Category range High level community order – 3 years’ custody

CLASS B	LEADING ROLE	SIGNIFICANT ROLE	LESSER ROLE
Category 1	Starting point 8 years’ custody	Starting point 5 years 6 months’ custody	Starting point 3 years’ custody
	Category range 7 – 10 years’ custody	Category range 5 – 7 years’ custody	Category range 2 years 6 months’ – 5 years’ custody
Category 2	Starting point 6 years’ custody	Starting point 4 years’ custody	Starting point 1 year’s custody
	Category range 4 years 6 months’ – 8 years’ custody	Category range 2 years 6 months’ – 5 years’ custody	Category range 26 weeks’ – 3 years’ custody
Category 3	Starting point 4 years’ custody	Starting point 1 year’s custody	Starting point High level community order
	Category range 2 years 6 months’ – 5 years’ custody	Category range 26 weeks’ – 3 years’ custody	Category range Low level community order – 26 weeks’ custody
Category 4	Starting point 18 months’ custody	Starting point High level community order	Starting point Low level community order
	Category range 26 weeks’ – 3 years’ custody	Category range Medium level community order – 26 weeks’ custody	Category range Band B fine – Medium level community order

CLASS C	LEADING ROLE	SIGNIFICANT ROLE	LESSER ROLE
Category 1	Starting point 5 years’ custody	Starting point 3 years’ custody	Starting point 18 months’ custody
	Category range 4 – 8 years’ custody	Category range 2 – 5 years’ custody	Category range 1 – 3 years’ custody
Category 2	Starting point 3 years 6 months’ custody	Starting point 18 months’ custody	Starting point 26 weeks’ custody
	Category range 2 – 5 years’ custody	Category range 1 – 3 years’ custody	Category range 12 weeks’ – 18 months’ custody
Category 3	Starting point 18 months’ custody	Starting point 26 weeks’ custody	Starting point High level community order
	Category range 1 – 3 years’ custody	Category range 12 weeks’ – 18 months’ custody	Category range Low level community order – 12 weeks’ custody
Category 4	Starting point 26 weeks’ custody	Starting point High level community order	Starting point Low level community order
	Category range High level community order – 18 months’ custody	Category range Low level community order – 12 weeks’ custody	Category range Band A fine – Medium level community order

The table below contains a non-exhaustive list of additional factual elements providing the context of the offence and factors relating to the offender. Identify whether any combination of these, or other relevant factors, should result in and upward or downward adjustment from the starting point. In some cases, having considered these factors, it may be appropriate to move outside the identified category range.

There may be exceptional local circumstances that arise which may lead a court to decide that prevalence of drug offending should influence sentencing levels. The pivotal issue in such cases will be the harm caused to the community.

It is essential that the court before taking account of prevalence:

• has supporting evidence from an external source, for example, Community Impact Statements, to justify claims that drug offending is prevalent in their area, and is causing particular harm in that community; and

• is satisfied that there is a compelling need to treat the offence more seriously than elsewhere. 

Step 3 – Minimum Terms

For class A cases, section 313 of the Sentencing Code provides that a court should impose an appropriate custodial sentence of at least seven years for a third class A trafficking offence except:

• (If the offence was committed on or after 28 June 2022) where the court is of the opinion that there are exceptional circumstances which (a) relate to any of the offences or to the offender; and (b) justify not doing so; or
• (If the offence was committed before 28 June 2022) where the court is of the opinion that there are particular circumstances which (a) relate to any of the offences or to the offender; and (b) would make it unjust to do so in all the circumstances.

Step 4 – Consider any factors which indicate a reduction, such as assistance to the prosecution

The court should take into account section 74 of the Sentencing Code (assistance by defendants: reduction or review of sentence) 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 5 – 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.

In circumstances where an appropriate custodial sentence of 7 years falls to be imposed under section 313 of the Sentencing Code (third Class A drug trafficking offences), the court may impose any sentence in accordance with this guideline which is not less than 80 per cent of the appropriate custodial period.

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 offending behaviour. .

Step 7 – Confiscation and ancillary orders

Confiscation orders under the Proceeds of Crime Act 2002 may only be made by the Crown Court. The Crown Court must proceed with a view to making a confiscation order if it is asked to do so by the prosecutor or if the Crown Court believes it is appropriate for it to do so.

Where, following conviction in a magistrates’ court, the prosecutor applies for the offender to be committed to the Crown Court with a view to a confiscation order being considered, the magistrates’ court must commit the offender to the Crown Court to be sentenced there (section 70 of the Proceeds of Crime Act 2002). This applies to summary only and either-way offences.

Where, but for the prosecutor’s application under s.70, the magistrates’ court would have committed the offender for sentence to the Crown Court anyway it must say so. Otherwise the powers of sentence of the Crown Court will be limited to those of the magistrates’ court.

Confiscation must be dealt with before, and taken into account when assessing, any other fine or financial order (except compensation).

(See Proceeds of Crime Act 2002 sections 6 and 13)

The court should also consider whether to make ancillary orders.

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

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.

 

Theft Act 1968, s.8(1)

Triable only on indictment
Maximum: Life imprisonment
Offence range: Community order – 12 years’ custody

This guideline applies to all offenders aged 18 and older who are sentenced on or after 1 April 2016, regardless of the date of the offence.

Street/less sophisticated commercial robbery refers to robberies committed in public places, including those committed in taxis or on public transport. It also refers to unsophisticated robberies within commercial premises or targeting commercial goods or money.

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.

Step 1 – Determining the offence category

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

The court should weigh all the factors set out below in determining the offender’s culpability.

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.

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 convictions. A case of particular gravity, reflected by multiple features of culpability or harm in step one, could merit upward adjustment from the starting point before further adjustment for aggravating or mitigating features, set out below.

Consecutive sentences for multiple offences may be appropriate particularly where exceptionally high levels of harm have been caused.

	Culpability
Harm	A	B	C
Category 1	Starting point 8 years’ custody	Starting point 5 years’ custody	Starting point 4 years’ custody
	Category range 7 – 12 years’ custody	Category range 4 – 8 years’ custody	Category range 3 – 6 years’ custody
Category 2	Starting point 5 years’ custody	Starting point 4 years’ custody	Starting point 2 years’ custody
	Category range 4 – 8 years’ custody	Category range 3 – 6 years’ custody	Category range 1 – 4 years’ custody
Category 3	Starting point 4 years’ custody	Starting point 2 years’ custody	Starting point 1 year’s custody
	Category range 3 – 6 years’ custody	Category range 1 – 4 years’ custody	Category range High level community order – 3 years’ custody

Step 3 – Consider any factors which indicate a reduction, such as 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 plea

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.

Step 5 – Dangerousness

The court should consider:

1) whether having regard to the criteria contained in Chapter 6 of Part 10 of the Sentencing Code it would be appropriate to impose a life sentence (sections 274 and 285)

2) (where, at some time during the commission of the offence, the offender had in his or her possession a firearm or an imitation firearm within the meaning of the Firearms Act 1968) whether having regard to sections 273 and 283 of the Sentencing Code it would be appropriate to impose a life sentence.

3) whether having regard to the criteria contained in Chapter 6 of Part 10 of the Sentencing Code it would be appropriate to impose an extended sentence (sections 266 and 279)

When sentencing offenders to a life sentence under these provisions, the notional determinate sentence should be used as the basis for the setting of a minimum term.

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 offending behaviour. .

Step 7 – Compensation and ancillary orders

In all cases the court should consider whether to make compensation and/or other ancillary orders. Where the offence has resulted in personal injury, loss or damage the court must give reasons if it decides not to order compensation.

Where the offence involves a firearm, an imitation firearm or an offensive weapon the court may consider the criteria in section 19 of the Serious Crime Act 2007 for the imposition of a Serious Crime Prevention Order.

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.

Firearms Act 1968, s.5(1)(aba)

Indictable only 
Maximum: 10 years’ custody
Offence range: Discharge – 10 years’ custody     

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

This offence is subject to statutory minimum sentencing provisions which are taken into account at steps 2 and 3. Sentencers should follow each step of the guideline to ensure that all relevant factors are considered.

Step 1 – Determining the offence category

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

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 category

Identify the final culpability category in the table below, considering both the Type of weapon and Other culpability factors.

		Type of weapon
Other culpability factors	1	2	3
High	Culpability category A	Culpability category A	Culpability category B
Medium	Culpability category B	Culpability category B	Culpability category B
Lower	Culpability category B	Culpability category C	Culpability category C

Where there are characteristics present which fall under different levels of harm, the court should balance these characteristics to reach a fair assessment of the harm.

Step 2 – Starting point and category range

Having determined the category at step 1, 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 convictions.

Sentencers should be aware that there is evidence of a disparity in sentence outcomes for this offence which indicates that where the minimum term applies, a higher proportion of White offenders receive a sentence below the mandatory minimum term, and as a result less severe sentences compared to Black, Asian and Other ethnicity offenders. Where the minimum term does not apply, a slightly lower proportion of White offenders receive an immediate custodial sentence compared to Black, Asian and Other minority ethnic offenders.

There may be many reasons for these differences, but in order to apply the guidelines fairly sentencers may find useful information and guidance at Chapter 8 paragraphs 152 to 167 of the Equal Treatment Bench Book.

Table 1 should be used if the offence is subject to statutory minimum sentencing provisions.

Table 2 should be used for all other cases.

See step 3 for details of the minimum sentencing provisions and the approach to be taken to consideration of exceptional circumstances.

TABLE 1: Offences subject to the statutory minimum sentence (includes Section 5(1)(aba))

Harm		Culpability
	A	B	C
Category 1	Starting point 8 years’ custody	Starting point 7 years’ custody	Starting point 6 years’ custody
	Category range 7 – 10 years’ custody	Category range 6 – 8 years’ custody	Category range 5 – 7 years’ custody
Category 2	Starting point 7 years’ custody	Starting point 6 years’ custody	Starting point 5 years 6 months’ custody
	Category range 6 – 8 years’ custody	Category range 5 – 7 years’ custody	Category range 5 – 7 years’ custody
Category 3	Starting point 6 years’ custody	Starting point 5 years 6 months’ custody	Starting point 5 years’ custody
	Category range 5 – 7 years’ custody	Category range 5 – 7 years’ custody	Category range 5 – 6 years’ custody

TABLE 2: Offences not subject to the statutory minimum sentence

Harm		Culpability
	A	B	C
Category 1	Starting point 3 years’ custody	Starting point 2 years’ custody	Starting point 1 year’s custody
	Category range 2 – 5 years’ custody	Category range 1 – 3 years’ custody	Category range High level community order – 2 years’ custody
Category 2	Starting point 2 years’ custody	Starting point 1 year’s custody	Starting point Medium level community order
	Category range 1 – 3 years’ custody	Category range High level community order – 2 years’ custody	Category range Band C fine – High level community order
Category 3	Starting point 1 year’s custody	Starting point Medium level community order	Starting point Band C fine
	Category range High level community order – 2 years’ custody	Category range Band C fine – High level community order	Category range Discharge – Low level community order

The table below contains a non-exhaustive list of additional factual elements providing the context of the offence and factors relating to the offender. Identify whether any combination of these, or other relevant factors, should result in an upward or downward adjustment from the sentence arrived at so far. In some cases, having considered these factors, it may be appropriate to move outside the identified category range.

Step 3 – Minimum term and exceptional circumstances

Minimum term

1. Where the minimum term provisions under section 311 and Schedule 20 of the Sentencing Code apply, a court must impose a sentence of at least five years’ custody irrespective of plea unless the court is of the opinion that there are exceptional circumstances relating to the offence or to the offender which justify its not doing so.

Applicability

2. The minimum term provisions apply when sentencing an offence under the Firearms Act 1968, section 5(1)(aba) committed on or after 22 January 2004. Note: the minimum term provisions do not apply to offences charged as conspiracies.
3. The minimum term applies to all such offences including the first offence. Where it applies the sentence cannot be reduced below the minimum term for a guilty plea (see step 5 – Reduction for guilty pleas).
4. The minimum term of five years applies to offenders aged 18 or over when the offence was committed. See below for guidance when sentencing offenders aged under 18 when the offence was committed.
5. Where the minimum term applies, this should be stated expressly.

Exceptional circumstances

6. In considering whether there are exceptional circumstances that would justify not imposing the statutory minimum sentence, the court must have regard to:

• • the particular circumstances of the offence and
  • the particular circumstances of the offender

either of which may give rise to exceptional circumstances

7. Where the factual circumstances are disputed, the procedure should follow that of a Newton hearing: see Criminal Practice Directions 9.3.3 Sentencing.
8. 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.

Principles

9. Circumstances are exceptional if the imposition of the minimum term would result in an arbitrary and disproportionate sentence.
10. The circumstances must truly be exceptional. It is important that courts do not undermine the intention of Parliament and the deterrent purpose of the minimum term provisions by too readily accepting exceptional circumstances.
11. 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.
12. The mere presence of one or more of the following should not in itself be regarded as exceptional:

• • One or more lower culpability factors
  • The type of weapon or ammunition falling under type 2 or 3
  • One or more mitigating factors
  • A plea of guilty

Where exceptional circumstances are found

13. 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. Note: a guilty plea reduction applies in the normal way if the minimum term is not imposed (see step 5 – Reduction for guilty pleas).
14. The court may find it useful to refer to the range of sentences under culpability A of Table 2 (Offences not subject to the statutory minimum sentence) in step 2 above. The court should impose a sentence that is appropriate to the individual case.

Step 4 – 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 5 – 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 has been imposed under section 311 of the Sentencing Code, the court must ensure that any reduction for a guilty plea does not reduce the sentence to less than the required minimum term.

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.

Step 7 – Ancillary orders

In all cases the court should consider whether to make ancillary orders.

Forfeiture and destruction of firearms and cancellation of certificate

The court should consider ordering forfeiture or disposal of any firearm or ammunition and the cancellation of any firearms certificate. Section 52 of the Firearms Act 1968 provides for the forfeiture and disposal of firearms and the cancellation of firearms and shotgun certificates where a person is convicted of this offence and is given a custodial sentence or a community order containing a requirement not to possess, use or carry a firearm.

Serious Crime Prevention Order

The Crown Court may consider the criteria in section 19 of the Serious Crime Act 2007 for the imposition of a Serious Crime Prevention Order.

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.

Fraud Act 2006 (section 1)

Triable either way
Maximum: 10 years’ custody
Offence range: Discharge – 8 years’ custody

It applies to all individual offenders aged 18 and older who are sentenced on or after 1 October 2014, regardless of the date of the offence. The maximum sentence that applies to an offence is the maximum that applied at the date of the 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.

Step 1 – Determining the offence category

The court should determine the offence category with reference to the tables 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 to determine the offender’s role and the extent to which the offending was planned and the sophistication with which it was carried out.

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.

Harm

Harm is assessed by the actual, intended or risked financial loss and the impact on the victim.

The values in the table below are to be used for actual or intended financial loss only. Intended loss relates to offences where circumstances prevent the actual loss that is intended to be caused by the fraudulent activity.

Risk of loss (for instance in mortgage frauds) involves consideration of both the likelihood of harm occurring and the extent of it if it does. Risk of loss is less serious than actual or intended loss. Where the offence has caused risk of loss but no (or much less) actual loss the normal approach is to move down to the corresponding point in the next category. This may not be appropriate if either the likelihood or extent of risked loss is particularly high.

Financial harm – Loss caused or intended
Category 1	£500,000 or more	Starting point based on £1 million
Category 2	£100,000 – £500,000 or Risk of category 1 harm	Starting point based on £300,000
Category 3	£20,000 – £100,000 or Risk of category 2 harm	Starting point based on £50,000
Category 4	£5,000 – £20,000 or Risk of category 3 harm	Starting point based on £12,500
Category 5	Less than £5,000 or Risk of category 4 harm	Starting point based on £2,500
Risk of category 5 harm, move down the range within the category

The court should then take into account the level of harm caused to the victim(s) or others to determine whether it warrants the sentence being moved up to the corresponding point in the next category or further up the range of the initial category.

Step 2 – Starting point and category range

Having determined the category at step one, the court should use the appropriate starting point (as adjusted in accordance with step one above) to reach a sentence within the category range in the table below. The starting point applies to all offenders irrespective of plea or previous convictions.

Where the value is larger or smaller than the amount on which the starting point is based, this should lead to upward or downward adjustment as appropriate.

Where the value greatly exceeds the amount of the starting point in category 1, it may be appropriate to move outside the identified range.

	Culpability
Harm	A	B	C
Category 1 £500,000 or more Starting point based on £1 million	Starting point 7 years’ custody	Starting point 5 years’ custody	Starting point 3 years’ custody
	Category range 5 – 8 years’ custody	Category range 3 – 6 years’ custody	Category range 18 months’ – 4 years’ custody
Category 2 £100,000 – £500,000 Starting point based on £300,000	Starting point 5 years’ custody	Starting point 3 years’ custody	Starting point 18 months’ custody
	Category range 3 – 6 years’ custody	Category range 18 months’ – 4 years’ custody	Category range 26 weeks’ – 3 years’ custody
Category 3 £20,000 – £100,000 Starting point based on £50,000	Starting point 3 years’ custody	Starting point 18 months’ custody	Starting point 26 weeks’ custody
	Category range 18 months’ – 4 years’ custody	Category range 26 weeks’ – 3 years’ custody	Category range Medium level community order – 1 year’s custody
Category 4 £5,000- £20,000 Starting point based on £12,500	Starting point 18 months’ custody	Starting point 26 weeks’ custody	Starting point Medium level community order
	Category range 26 weeks’ – 3 years’ custody	Category range Medium level community order – 1 year’s custody	Category range Band B fine – High level community order
Category 5 Less than £5,000 Starting point based on £2,500	Starting point 36 weeks’ custody	Starting point Medium level community order	Starting point Band B fine
	Category range High level community order – 1 year’s custody	Category range Band B fine – 26 weeks’ custody	Category range Discharge – Medium level community order

The table below contains a non-exhaustive list of additional factual elements providing the context of the offence and factors relating to the offender.

Identify whether any combination of these or other relevant factors should result in an upward or downward adjustment from the sentence arrived at so far.

Consecutive sentences for multiple offences may be appropriate where large sums are involved.

Step 3 – Consider any factors which indicate a reduction, such as 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.

Step 5 – 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. 

Step 6 – Confiscation, compensation and ancillary orders

Confiscation orders under the Proceeds of Crime Act 2002 may only be made by the Crown Court. The Crown Court must proceed with a view to making a confiscation order if it is asked to do so by the prosecutor or if the Crown Court believes it is appropriate for it to do so.

Where, following conviction in a magistrates’ court, the prosecutor applies for the offender to be committed to the Crown Court with a view to a confiscation order being considered, the magistrates’ court must commit the offender to the Crown Court to be sentenced there (section 70 of the Proceeds of Crime Act 2002). This applies to summary only and either-way offences.

Where, but for the prosecutor’s application under s.70, the magistrates’ court would have committed the offender for sentence to the Crown Court anyway it must say so. Otherwise the powers of sentence of the Crown Court will be limited to those of the magistrates’ court.

Confiscation must be dealt with before, and taken into account when assessing, any other fine or financial order (except compensation).

(See Proceeds of Crime Act 2002 sections 6 and 13)

Where the offence has resulted in loss or damage the court must consider whether to make a compensation order. The court must give reasons if it decides not to award compensation in such cases (Sentencing Code, s.55).

If the court makes both a confiscation order and an order for compensation and the court believes the offender will not have sufficient means to satisfy both orders in full, the court must direct that the compensation be paid out of sums recovered under the confiscation order (section 13 of the Proceeds of Crime Act 2002).

The court may also consider whether to make ancillary orders. These may include a deprivation order, a financial reporting order, a serious crime prevention order and disqualification from acting as a company director.

Step 7 – Reasons

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

Step 8 – 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.

Common Assault and battery (sometimes described as assault by beating), Criminal Justice Act 1988 (section 39)
Racially/religiously aggravated common assault, Crime and Disorder Act 1998 (section 29)
Assaults on emergency workers, Assaults on Emergency Workers (Offences) Act 2018 (section 1)

Section 39
Triable only summarily
Maximum: 6 months’ custody

Offence range: Discharge – 26 weeks’ custody

Racially or religiously aggravated offence – Section 29
Triable either way
Maximum: 2 years’ custody

Offence committed against an emergency worker – Section 1
Triable either way
Maximum: 2 years’ custody (1 year’s custody for offences committed before 28 June 2022)

Racially or religiously aggravated common assault 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.

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

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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.

For racially or religiously aggravated offences and aggravated assaults on emergency workers the category of the offence should be identified with reference to the factors below, and the sentence increased in accordance with the guidance at Step Three

Step 1 – Determining the offence category

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

Step 2 – Starting point and category range

Having determined the category, the court should use the corresponding starting points to reach a sentence within the category range below. The starting point applies to all offenders irrespective of plea or previous convictions. A case of particular gravity, reflected by multiple features of culpability in step one, could merit upward adjustment from the starting point before further adjustment for aggravating or mitigating features, set out below.

Harm	Culpability
	A	B
Harm 1	Starting point High level community order	Starting point Medium level community order
	Category range Low level community order – 26 weeks’ custody	Category range Low level community order – 16 weeks’ custody
Harm 2	Starting point Medium level community order	Starting point Low level community order
	Category range Low level community order – 16 weeks’ custody	Category range Band C fine – High level community order
Harm 3	Starting point Low level community order	Starting point Band C fine
	Category range Band C fine – High level community order	Category range Discharge – Low level community order

The table below contains a non-exhaustive list of additional factual elements providing the context of the offence and factors relating to the offender. Identify whether any combination of these, or other relevant factors, should result in an upward or downward adjustment from the starting point. In some cases, having considered these factors, it may be appropriate to move outside the identified category range.

Step 3 – Aggravated offences

RACIALLY OR RELIGIOUSLY AGGRAVATED OFFENCES

Having determined the category of the basic offence to identify the sentence of a non-aggravated offence, the court should now consider the level of racial or religious aggravation involved and apply an appropriate uplift to the sentence in accordance with the guidance below. The following is a list of factors which the court should consider to determine the level of aggravation. Where there are characteristics present which fall under different levels of aggravation, the court should balance these to reach a fair assessment of the level of aggravation present in the offence.

Maximum sentence for the racially or religiously aggravated offence is 2 years’ custody

Care should be taken to avoid double counting factors already taken into account in assessing the level of harm at step one

HIGH LEVEL OF RACIAL OR RELIGIOUS AGGRAVATION	SENTENCE UPLIFT
Racial or religious aggravation was the predominant motivation for the offence. Offender was a member of, or was associated with, a group promoting hostility based on race or religion. Aggravated nature of the offence caused severe distress to the victim or the victim’s family (over and above the distress already considered at step one). Aggravated nature of the offence caused serious fear and distress throughout local community or more widely.	Increase the length of custodial sentence if already considered for the basic offence or consider a custodial sentence, if not already considered for the basic offence.
MEDIUM LEVEL OF RACIAL OR RELIGIOUS AGGRAVATION	SENTENCE UPLIFT
Racial or religious aggravation formed a significant proportion of the offence as a whole. Aggravated nature of the offence caused some distress to the victim or the victim’s family (over and above the distress already considered at step one). Aggravated nature of the offence caused some fear and distress throughout local community or more widely.	Consider a significantly more onerous penalty of the same type or consider a more severe type of sentence than for the basic offence.
LOW LEVEL OF RACIAL OR RELIGIOUS AGGRAVATION	SENTENCE UPLIFT
Aggravated element formed a minimal part of the offence as a whole. Aggravated nature of the offence caused minimal or no distress to the victim or the victim’s family (over and above the distress already considered at step one).	Consider a more onerous penalty of the same type identified for the basic offence.

Magistrates may find that, although the appropriate sentence for the basic offence would be within their powers, the appropriate increase for the aggravated offence would result in a sentence in excess of their powers. If so, they must commit for sentence to the Crown Court.

The sentencer should state in open court that the offence was aggravated by reason of race or religion, and should also state what the sentence would have been without that element of aggravation.

 

ASSAULT ON EMERGENCY WORKER AGGRAVATED OFFENCES

Maximum sentence for the aggravated offence of assault on an emergency worker is 2 years’ custody (1 year’s custody for offences committed before 28 June 2022)

Having determined the category of the basic offence to identify the sentence of a non-aggravated offence, the court should now apply an appropriate uplift to the sentence in accordance with the guidance below. The uplifted sentence may considerably exceed the basic offence category range.

Category A1	Increase the length of custodial sentence if already considered for the basic offence or consider a custodial sentence, if not already considered for the basic offence.
Category A2 or B1	Consider a significantly more onerous penalty of the same type or consider a more severe type of sentence than for the basic offence.
Category A3 or B2 or B3	Consider a more onerous penalty of the same type identified for the basic offence.

Magistrates may find that, although the appropriate sentence for the basic offence would be within their powers, the appropriate increase for the aggravated offence would result in a sentence in excess of their powers. If so, they must commit for sentence to the Crown Court.

The sentencer should state in open court that the offence was aggravated by reason of the victim being an emergency worker, and should also state what the sentence would have been without that element of aggravation.

Step 4 – Consider any other factors which indicate a reduction, such as 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 5 – 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.

Step 6 – Dangerousness

Racially or religiously aggravated common assault is a specified offence. The court should consider whether having regard to the criteria contained in Chapter 6 of Part 10 of the Sentencing Code it would be appropriate to impose an extended sentence (sections 266 and 279).

Step 7 – 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 offending behaviour. See Totality guideline.

Step 8 – 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 9 – Reasons

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

Step 10 – 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.