Update: sentencing.

The Sentencing Guidelines Council and the Court of Appeal recently issued new sets of draft and final guidelines.

Sentencing Guidelines Council

Since the summer of 2006 the Sentencing Guidelines Council has issued four further final guidelines on various aspects of sentencing. They are:

• Definitive Sentencing Guideline on Robbery (July 2006).
• Breach of a Protective Order and Over-arching Principles: Domestic Violence (December 2006).
• Definitive Sentencing Guideline on Sexual Offences Act 2003.
• Definitive Revised Sentencing Guideline on the Reduction in Sentence for Guilty Plea (July 2007).

The guideline on sexual offences was issued to address the new and amended offences introduced by the Act in respect of which there was no sentencing case law. It is a lengthy document covering general principles and 71 statutory sections relating to specific offences.

The guideline on reduction for guilty plea was issued to account for the change in the law since the original guideline was published in 2004. The revision incorporates consideration of the Criminal Justice Act 2003 and clarifies the purpose and extent of sentencing reduction.

The reduction should be no more than one-third with a lower level of reduction in cases where the plea is not entered at the first reasonable opportunity or where the case against the defendant is 'overwhelming'. Remorse and other mitigating factors must be taken into account when fixing sentence before any reduction is given for the guilty plea.

The recommended level of reduction is set on a sliding scale at one-third for a plea at the first reasonable opportunity to one-quarter where a trial date has been set to one-tenth when the plea is entered just before or during the trial.

Concerns were raised about the full reduction being available for offenders who faced an overwhelming case from the prosecution and the revised guideline now gives the sentencer discretion to lower the level of reduction in such cases to 20 per cent although the reason for departing from the guideline judges can reduce to 20 per cent but must give reasons for any reduction from one-third to 20 per cent must be given. Explanation of the term 'first reasonable oppor- tunity' is provided in an annex to the guideline and it includes the opportunity to indicate a guilty plea at the police station as well as on first appearance at court.

Draft guidelines and consultation papers

Two draft guidelines have been issued this year:

• sentencing offenders who fail to surrender to bail (May 2007); and
• sentencing of adult offenders for assault and other offences against the person and assault on children and cruelty to children (June 2007).

In August 2007 consultation papers were issued on sentencing for fraud offences and sentencing for breach of Anti-Social Behaviour Orders (ASBOs).

Court of Appeal guidelines

An update to the Guideline Judgments Case Compendium was issued on 3 April 2007. It covered generic sentencing principles and specific offences of homicide, causing grievous bodily harm with intent, driving offences resulting in death (which will be affected by the Road Safety Act 2006), affray, and health and safety offences. Many cases have arisen over the interpretation of 'dangerousness' in sentencing and on 21 September 2007 a guide on dangerous offenders for sentencers and practitioners was published.

This is a timely review of the legislation included in the Criminal Justice Act 2003 and how it has been applied and interpreted by the courts. It considers the following aspects:

• criteria for imposing sentences for dangerous offenders under ss224 to ss229 of the Act in respect of both adults and youths;
• questions on jurisdiction for youths;
• the giving of Goodyear indications of sentence in the Crown Court;
• the procedure for assessment of dangerousness based on case law;
• the imposition and practical effect of sentences of life imprisonment (or custody or detention for life) and sentences for public protection for youths; and
• sentencing for multiple offences.

The sheer length of the contents list indicates the complexity of these provisions and the continuing confusion over their application. There is a glossary of terms and helpful flowcharts together with lists of serious and specified sexual and violent offences all of which is invaluable as a quick reference.The guide refers to at least 16 cases decided since the provisions came into effect. It also is clear that this is still a work in progress which will be updated to incorporate future inevitable case law.

Assessment of dangerousness

The relevant cases are Lang [2006] 2 Cr App R (S) 3; Johnson [2007] 1 Cr App R (S) 674; Considine and Davis [2007] 3 All ER 621.

The principles from these main cases are identified as follows:

• A two-part test applies, such as, is there a significant risk of the offender committing further specified offences (either serious or not) and is there a significant risk of serious harm to members of the public being caused by the offender committing such offences in future.
• A pre-sentence report should be obtained by the court to assist in assessing dangerousness unless in the case of an adult the court considers a report unnecessary. The prosecution and defence should address the court on dangerousness and the court must give the reasons for any assessment of dangerousness whether it is found or not.
• The statutory assumption of dangerousness applies to adults who have previously been convicted of a specified or serious offence (s229) but this may be displaced on the grounds of unreasonableness. It may be unreasonable to apply the assumption if the offender would not be found to be dangerous except for the fact of previous convictions.
• The information to be taken into account under s229 when assessing dangerousness includes details of the nature and circumstances of the offence and any pattern of behaviour in offending together with any other information about the offender which is before the court. Through case law various factors are identified which may assist in assessing the significance of the risk of further relevant offences. The previous convictions are important, whether for specified offences or not, but they are not a determinative factor of dangerousness. Misconduct short of a conviction may also be relevant but a Newton hearing if the misconduct is disputed is not appropriate as it may deprive the offender of a right to a fair trial. Information leading to the imposition of an ASBO may be considered. Information which may have arisen during trial but was not actually relied upon may be taken into account unless it would have been ruled as inadmissible but any dispute of fact must be resolved fairly. The offenders social and economic circumstances including accommodation, employability, education, associations, relationships and drug or alcohol abuse and the offender's thinking, emotional state and attitude towards offending and supervision should all be taken into account remembering that an offender who is vulnerable, suggestible or inadequate may yet be dangerous.
• A significant risk of serious harm should not be assumed simply because the anticipated offences are serious offences. The future offending must have the potential to cause serious harm. If the anticipated offences are specified offences these are unlikely, of themselves, to give rise to a significant risk of serious harm. The fact that no actual harm was caused with respect to the offence being sentenced does not negate the risk of serious harm in future.

Youths and dangerousness

The statutory assumption of dangerousness does not apply to youths who should, wherever possible, be tried in the Youth Court rather than the Crown Court. A particularly rigorous approach must be taken in assessing dangerousness for offenders under the age of 18 years old. The offender's maturity and opportunity to change must be considered and a report from the Youth Offending team is essential. It will still be open to the Youth Court to commit the offender for sentence after conviction when much more information will be available (CPS v South East Surrey Youth Court [2006] 2 Cr App R (S) 26). For the purposes of these provisions the relevant date is the date of conviction. If the offender has reached the age of 18 by then he is sentenced as an adult (Robson [2007] 1Cr App R (S)).

Multiple offences

For multiple offences where a life sentence is imposed on one offence all other sentences should be concurrent. The notional determinate sentence may be increased to reflect the totality of the criminality. If the other offences are specified but not serious offences, the concurrent sentence must be an extended sentence (O'Halloran [2006] EWCA Crim 3148).

Indication of sentence

A Goodyear indication of sentence may be given in the Crown Court to an offender charged with a specified offence but the court must have sufficient information available at that early stage to assess dangerousness. In respect of youths the option of an extended sentence must not be discounted. The court that imposes sentence must assess dangerousness (Kulah [2007] EWCA Crim 1701).

Making mistakes

Finally it is recognised in the guide that mistakes will inevitably be made. It is pointed out that the Crown Court has power under s155 of the Powers of Criminal Courts (Sentencing) Act 2000 to vary a sentence within a time limit of 28 days. This includes a power to increase a sentence which may be exercised if the dangerousness provisions have been overlooked or misapplied. Where time or circumstances do not permit for the sentence to be varied within the 28-day limit, the court may rescind the sentence and adjourn the case to a later date for reconsideration of sentence. If the mistake is not corrected at the Crown Court the proper course is to appeal to the Court of Appeal, but that court has no power to increase the sentence (Reynolds [2007] EWCA 538 ).