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How sentencing is worked out

Sentencing is the act of determining a suitable punishment after someone has admitted guilt, or been found guilty, of a crime. In the UK sentencing is usually carried out by a member of the judiciary, often a magistrate or judge.

Sentences for crimes vary enormously. They vary between crimes, with the seriousness of the offence usually calling for a harsher punishment, but they also vary for the same offence, reflecting differing circumstances that may have transpired when the offence was committed.

The result is that sentencing can seem very confusing, and it is often difficult to determine why one person was punished harshly, while another is given apparent leniency in their sentencing.

What factors affect sentencing?

When considering what sentence to hand down to an offender, a judge or magistrate will use sentencing guidelines, which sets out how they must approach the determination of a criminal sentence.

Judges will usually have a few different options for the type of sentence they are going to hand down, as well as degrees of severity of a particular type. For example, a prison or custodial sentence may be one of the options available, and having chosen this option the judge would then have to decide the length of the sentence.

When making this decision, lots of factors will come into the balance of the determination of the sentence. For example, the judge will consider the seriousness of the crime, and when considering this they may have to consider the impact on the victim, which is often brought to life with a Victim Statement.

Often the judge will also have to consider the level of fault, or blame. Here a relevant factor would be provocation, or the relative difference in power between the offender and their victim. The judge will also consider previous crimes committed by the offender and their personal circumstances. Finally the judge may consider the plea of the offender; often if an early guilty plea is made this can allow the judge to take up to one-third off the final sentence.

What are aggravating and mitigating factors?

Aggravating factors are elements of the case that make the offence more serious and increase the seriousness of the punishment. Examples of aggravating circumstances include offences committed whilst on bail, racial or religiously motivated offences, operating in gangs, professional offending and use of a weapon to frighten on intimidate.

Mitigating factors are those that serve to reduce your blame for a particular crime. Examples of mitigating circumstances include if you were provoked into committing the crime, if you were suffering from an impaired mind, or if you played only a minor role in the offence.

What types of sentence can be handed down?

A judge or magistrate may have a choice as to the type of sentence that is handed down. The most commonly known and the most serious is a custodial or prison sentence, where the offender is deprived of their liberty for a period of time to reflect the seriousness of the offence.

If a judge considers a prison sentence too harsh, the next level of sentence is a community sentence. This means that the offender is rehabilitated in the community, usually with a requirement to complete useful unpaid work for a certain number of hours. The maximum number of hours is 300. Other elements of a community sentence include completing specific activities, which can include making amends for the crime, changing behaviour, such as by attending drug and alcohol or mental health counselling and treatment, and various orders, for example restricting where the offender can and cannot go.

Another available sentence is a financial penalty, which is usually administered as a fine. This is the commonest sentence, and is usually set according to the severity of the offence, weighed against what the offender can afford.

The last type of sentence is a discharge. This means that the judge or magistrate views going to court as punishment in itself. Often, however, the judge or magistrate issues a ‘conditional discharge’, meaning that the offender is subject to conditions. If they reoffend they can then be sentenced for the new crime, and the previous crime at the same time.

Further reading

Sentencing Guidelines Council Overarching Principles: Seriousness (PDF) 

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