Download Overarching Principles: Seriousness and New Sentences

CLSA
SAP’s consultation paper on the review of the definitive guidelines
Overarching Principles: Seriousness and New Sentences: Criminal
Justice Act 2003.
Response from:
Criminal Law Solicitors’ Association
Suite 2 Level 6
New England House
New England Street
Brighton, BN1 4GH
DX 2740 Brighton
Email: [email protected]
Tel: 01273 676725
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SUMMARY OF QUESTIONS
Question 1
Do you consider that any of the statutory purposes of sentencing is more important than
another? If so, how should this influence the approach to sentencing?
We agree that the statutory purposes of sentencing (punishment, crime
reduction, reform and rehabilitation, public protection and reparation) should
rank equally in order that the sentencer retains flexibility in the imposition of
the correct sentence for the crime committed. We agree also that the
seriousness of the offence should dictate the sentencing threshold. It is
inappropriate to select a sentence that is designed for a more serious offence
when sentencing an offender for an offence that does not meet the relevant
threshold simply by reason of expedience.
Question 2
Do you agree that culpability should be redefined, in descending order of severity, as:
(i) intention and/or knowledge; and
(ii) recklessness and/or negligence?
If not, how should the varying levels of offender culpability be categorised?
For the reasons stated in the consultation paper we agree the proposed
redefinition of culpability in so far as it relates to intention only. This state of
mind should clearly be designated as the highest level of culpability. In most
cases, knowledge will also equate to intention. However, knowledge of risk is
an essential ingredient of recklessness and at that point the distinction
between knowledge and recklessness becomes blurred. Moreover, we do not
accept that recklessness can always be equated with negligence.
Recklessness has traditionally been used to describe behaviour in which a risk
is taken knowingly. Negligence does not necessarily imply the same degree of
culpable behaviour. We believe that there is a significant risk of losing
important nuances in culpability by adopting a two tier approach to
culpability. This may be particularly the case as between co-defendants or
when establishing sentencing case law if intention was always to be equated
with knowledge and recklessness with negligence.
Question 3
Do you agree that the factors identified above are relevant to the assessment of offence
seriousness where there is an imbalance between the harm intended and the harm
caused by an offence?
We agree the approach taken to those cases where the actual harm is less
than the harm intended to be caused by the offender. It is clearly appropriate
in those circumstances to look beyond the actual harm caused and to the
intention when considering the true seriousness of the offence.
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Where we have greater difficulty is in adopting a similar approach to those
cases where the actual harm caused is far greater than the level of the
culpable act. In strictly jurisprudential terms, the concept of the punishment
being enhanced (and sometimes radically so) way beyond the level of
culpability for the act due to its consequence seems to us to be wrong in
principle. However, the sentencing guidelines on, for instance, causing death
by careless driving have been formulated on the basis that the consequences
could profoundly affect the level of seriousness when considering sentence.
For that reason it may be that we are swimming against the tide (both of
judicial and public opinion) in arguing for a different approach. To the limited
extent that the proposed factors (i.e. relevant to the assessment of offence
seriousness) take in to account that there may be reasons beyond the power
of the offender to influence we agree that factor (i.e. number five) is
appropriate.
Other wise, and in general, we agree the proposed factors.
Question 4
To what extent in and what circumstances do you consider that the presence of
previous convictions should impact on the sentence imposed?
The now out-moded principle introduced less than 20 years ago that previous
convictions should not be relevant in determining seriousness was clearly
wrong. In our view it is proper that convictions that are both relevant and
current should be used to determine seriousness.
Question 5
Do you think that any of the suggested approaches to assessing the impact of
aggravating factors would be helpful? Do you have any other suggestions?
This is a complex area. Of the three options a – c, it seems to us that option c
has the most merit. In that context, the groupings 1 –3 will have the greatest
effect on assessment of seriousness.
Question 6
Are respondents aware of any more recent research into the deterrent effect of
sentencing?
No
Question 7
Do you agree that there should be a presumption of a custodial sentence where the
factors identified above are present? If not, why not?
We are concerned that the definition of some of the terms, which would come
to be adopted as terms of art, might not be so easy to define. For instance,
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what is “serious financial harm”; “social harm”, “serious social harm” and
“callous disregard”? Moreover, how will a sentencer know whether “public
policy demands” a custodial sentence such that only a custodial sentence can
be justified in those circumstances – the examples given are current and well
known but is it intended that there should be additional categories? If so,
how will they be determined?
We are unsure what this new grading of offence (i.e. by way of imposition of
a presumption of custodial sentence) adds to the sentencing process over and
above the finding of aggravating features. Even more so where footnote 79
informs us that it is intended that “it will always be possible for the particular
circumstances of a case to lead the court to select a non-custodial sentence”.
Incidentally, a “callous disregard” such as described here might be referred to
as recklessness but is unlikely to be referred to as negligence (see our
comment to Question 2 above).
Further, we observe that the adoption of these factors in establishing a
presumption of custody would not support the imposition of a custodial
sentence, for instance, for causing death by careless driving, even where
additional aggravating features are present (see our response to Question 3).
Question 8
Do you have any comments on the Panel’s assessment of offender mitigation factors
and their potential impact on sentence selection?
The factors appear to have been comprehensively discussed and we have
nothing to add save that we agree that the move away from formulaic
sentencing towards greater judicial discretion is the correct approach.
Question 9
Do you agree with the Panel’s assessment of the factors that are likely to influence the
choice of disposal for offences where custody is justified but not essential?
Yes
Question 10
In what circumstances, if any, and to what degree, should requests for leniency from
the victim (or victim’s family) influence the sentence imposed?
It is our view that any request for leniency by the victim or the victim’s
family should be of great significance to a sentencer. There will be
instances of public policy no doubt where a sentencer will choose to
disregard those views but those instances should be rare. The caveat
should of course be that the sentencer is satisfied that the views are freely
and honestly held.
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Question 11
Do you agree with the Panel’s assessment of the circumstances in which a suspended
sentence order should be imposed?
Yes.
Question 12
Other than the issues already discussed, have any problems arisen in practice of which
the Panel needs to be aware?
In our experience it has been difficult for judges to square the perceived level
of seriousness of an offence with the need for a community order greater in
length than the maximum period of a suspended sentence (two years). This
has led to, for instance, two year suspended sentences being imposed,
because the seriousness of the offence requires it to be marked by custody,
but with a requirement to attend a sex offenders program. These programs
run for three years when combined with a community sentence and the
consequence is that the work that would otherwise have been done over a
three year period has to be squeezed in to two. The suggested approach will
give greater flexibility to the sentencer in these types of cases.
Question 13
Do you agree with the Panel’s assessment of the circumstances in which a community
order is likely to be the most appropriate starting point for sentence?
In principle, yes but we repeat our concern about the definition of phrases
which will become terms of art in this context (see response to Question 7)
Question 14
Do consultees have anything to add to the discussion about the use of fines and
discharges?
We agree this approach to the use of fines and discharges which does not
confine the sentencer to the straight jacket of seriousness in determining the
appropriate penalty.
Question 15
Do you have any comments about the way in which deferred sentences are currently
being used and whether they could be used in a wider range of circumstances?
Deferred sentences are not used frequently. In the right case they are very
effective and an appropriate sentence. They generally apply where the
defence is able to demonstrate an existing propensity to change behaviour
which post dates the offence.
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We are unclear whether the intention is for consideration to be given to the
use of a deferred sentence in the circumstances described and where the
offence is close to either the fine/community sentence threshold of
seriousness or the community sentence/custody threshold. If that is the case
(as appears to be indicated by the second guideline at page 94) then it is not
compatible with the fifth guideline which requires the court to specify
custody if any part of the deferment is not complied with. That should only
apply to cases in which the case is on the border of the community
sentence/custody threshold.
Question 16
Do you have reason to believe that any of the Panel’s proposals is likely to impact
disproportionately on certain offenders by reason of their gender, age, disability, race or
ethnic group or any combination of those factors?
We remain concerned that there is anecdotal evidence to suggest that certain
racial groups serve a greater proportion of custodial sentences. We are not,
however, in possession of any independent statistical evidence to support
that assertion. In any event, it is unlikely that the Panel’s proposals
themselves would contribute to any such malaise in the system as they
appear to us to be neutral in effect on gender, age, disability, race and ethnic
group.
Question 17
Do you agree with the principles relating to the sentencing of women offenders
identified by the Panel? If not, why not? Are there any other factors that should be
taken into account?
The proposal to introduce principles of sentencing specific to the imposition
of custodial sentences on women provoked some discussion. On the one
hand, the research clearly indicates that the effect of custody on women can
be substantially more deleterious than on a male counterpart. On the other
hand, the development of principles of sentencing that are dependent solely
on gender and not on an offender’s social and familial responsibilities
(regardless of gender) might be viewed as inappropriate. On balance and on a
strict application of the proposed principles, it seems to us that the purpose
of the principles is simply to require a sentencer to ascertain whether there
are genuine reasons (backed up by careful research – both generic and
offender specific) for not imposing a custodial sentence on a woman and only
to impose a custodial sentence where that penalty will not disproportionately
affect the life of either the woman or a dependent child. On that construction
alone we can see a place for the principles in the sentencing framework.
Having said that, many of the concerns expressed in the consultation
document concerning the effect on dependent children of the incarceration
of their mother apply equally where the sole carer is their offending father.
In the light of the research and the statistics referred to in the consultation
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document, we would expect mitigation based on an offender caring solely for
children to be viewed in a similar light regardless of gender.
Question 18
Do you agree that a court should be able to give a non-binding indication of its
assessment of offence seriousness when requesting a pre-sentence report?
Yes. Such an indication is helpful to both the probation service in targeting
sentencing options and to the defence in formulating and focusing mitigation
in circumstances where the alternative would simply be for the requesting
court to repeat the mantra “all options are open”.
It should not, however, prevent a sentencer from giving a binding indication
in appropriate cases that would bind not only the sentencer but also any
other sentencer acting in his place. We accept that such a binding indication
can only properly be given if the sentencer has had placed before him the
facts of the case and full mitigation.
Question 19
Do you have any suggestions for a formula that might assist the courts when
considering whether a sentence is proportionate to the totality of the offending
behaviour?
No
Question 20
Are you content with the current guidance on calculating a reduction for time spent on
remand when sentencing or re-sentencing an offender?
Yes
Question 21
In what circumstances (other than those provided in Rules) is it just to refuse to give
credit for time spent on remand in custody or on bail subject to curfew with electronic
monitoring?
We believe that it is right in principle to give credit for time served (whether
in custody or on bail subject to curfew) and that the occasions when such
credit is not given should be rare. Ample provision is given for those
occasions in the current guidelines.
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