Damage limitation: Sentencing.
If and when it comes to sentencing our experience and knowledge counts for a lot. We need to be robust, our clients should only be punished for what they’ve admitted or been proven to have done wrong. We have to highlight where the law or the facts demand leniency or mercy. We have to set a tone that respects the seriousness of the sentencing exercise as well as seeking the fairest outcome for our client.
On a guilty plea or a guilty finding then the court is likely to sentence the same day. If sentencing is going to be delayed it is going to be for information to be obtained to help with the final decision. If the seriousness of the offence means that a community order or imprisonment is likely then the probation service that manages offenders will usually be asked to report on the defendant. The case might be put off (adjourned) for an hour or so for a meeting between the defendant and an officer from probation, leading to the preparation of a short report or the case might be put off for a few weeks whilst a fuller assessment is prepared by probation. Reports will examine the alternatives to imprisonment and the sort of community orders that might be recommended to the court. The report will examine the impact of imprisonment on the defendant and their family.
It is essential that the defendant realises that what is said to the probation officer is going to be reported back to the sentencing judge or magistrates. It’s not rocket science to realise that the court will be looking for the defendant to show signs of understanding into what they have done wrong and to want to work with probation to address the issues behind that. Not cooperating with probation in the making of their report is going to look poor to the sentencing court.
As well as a report from probation, a sentencing court will consider references from people who know the defendant well and can give their impression of their character. This can be done in person in court or through a piece of writing. Medical information, a psychiatric assessment or employment information might be produced on the defendant’s behalf. The defendant might even write their own letter to the sentencing judge.
If time is needed after a guilty finding or guilty plea to gather information then in a small number of cases, particularly if the defendant is facing a long prison sentence, bail is withdrawn and the defendant is remanded to prison until sentencing. This can come straight after a guilty verdict at trial in serious cases.
As experienced criminal advocates, we tend to know what will help and what might aggravate the sentencing situation at that final hearing. Part of our skill is knowing what to say as well as what not to say. We don’t want to stumble into upsetting the sentencing court just as it is going to make a key decision on our client’s immediate future. We will advise on what letters and information to put before the court for sentence. We will go through the probation report with our client and either we will use the information in it to help the client or we may have to consider how we explain more challenging parts of a report, if there are any. It is rare a probation report makes the situation worse and if it does, it is usually because the defendant went into the probation report process in a confrontational mood.
Sentencing is based on the seriousness of the offence assessed by the judge and on any law or formal guidance on the sort of sentencing that should follow. In recent years the courts have relied less on previous recorded court cases that have set the principles and tests for how sentencing should be calculated in a particular case. Instead sentencing is determined more and more by the Sentencing Council Guidelines that a lawyer will reference in their submissions on the client’s behalf at sentencing. The Judge will quote those guidelines when announcing what they consider the correct punishment for the offence before them.
Have a look at the Sentencing Council’s website see the how sentencing is broken down for each offence.
Finally, when we speak on our client’s behalf at sentencing we will make sure the judge has the information, the material and the law to give our client the best possible chance of the most merciful outcome. We have to be sensible in what we suggest to the court or the judge will stop listening to our recommendations. That is all part of the balance of being a good, experienced advocate.
Sentences (from least to most severe)
Absolute discharge – A rare outcome because it represents no penalty at all and the matter is spent straight away.
See this link for more about when a conviction might be SPENT and what that means:www.nacro.org.uk/resettlement-advice-service/support-for-individuals/disclosing-criminal-records/rehabilitation-offenders-act/
Conditional discharge – For a period set by the Court, any sort of punishment for the offence is put off and if at the end of that period there has been no further offence then the matter is spent and there will be no further penalty. If there is an offence committed in that period then the court will consider reopening sentencing to impose something more significant.
Fine – Based on the ability of the defendant to pay and on the seriousness of the offence, a fine is an amount of money to be paid to the court. In all cases the defendant can be expected to be asked to pay towards the costs of bringing the prosecution (the amount will be less on an early plea than if found guilty after trial). In all cases if there is a victim then compensation will take priority over any other financial orders the court might make. In all but a few cases a victim surcharge is imposed whose value depends on the type of punishment. Having added up all that is owed, the court will then determine an amount to be paid each week or month, consistent with the earning potential and savings of the defendant. Failure to pay can have consequences, including imprisonment if non payment is wilful and continued. It is always better to contact the court fines office to talk about problems paying before it gets that bad.
Community orders – If the offence is serious enough and falls short of being an imprisonment case then the defendant might be required to serve a community order. In situations that an offence is going to be so serious that prison is justified then your lawyer is going to want to investigate with the court suspending that prison term with community order-style requirements attached. For a suspended prison sentence to be a realistic possibility then 1) the sentencing judge, after taking time off for any credit for an early plea and any personal mitigation, has to think they can impose a prison term of 2 years or less for the offence and 2) the sentencing judge is usually looking for some work that can be done with probation that will reduce the future risk of offending or to do some significant work to improve the defendant’s prospects. For a suspended sentence there also needs to be a punishment element, sometimes that’s just a fine but often the judge wants to impose more community order elements like hours of work or a curfew.
So if our clients are convicted then being able to work with probation on a community order is important. Community order options are most often supervision with rehabilitation activity requirement days (RAR days), hours of unpaid work and curfews.
Supervision – the defendant has to attend the RAR or programme dates given by the probation and engage with the work being done at those appointments. Missing an appointment without proving a good reason or missing too many or poor engagement can result in breach proceedings.
Unpaid work – the defendant must carry out the number of hours work set by the sentencing court over 12 months and failure to attend or participate properly without good reason will result in breach proceedings.
Curfew – the defendant must remain at their home over the days and times required of them as punishment by the sentencing court. The curfew is monitored by a machine – so the defendant has to wear a leg tag that detects if they are present when they should be. If the machine detects that the curfew has been broken then there will be breach proceedings.
Breach proceedings mean the defendant is returned to court. If breach of the order is admitted or proven then sentencing can be reopened. If it isn’t reopened then the order should be made harder or longer in some way. If the community order element was attached to a suspended prison sentence then the term of imprisonment will be activated in full or part unless the judge decides doing so would be unjust.
Imprisonment – will only be imposed if the offending is so serous that no other punishment can be justified. As described above that term can in some circumstances be suspended. If the term of imprisonment is not suspended then the defendant will leave the court straight away with security, to be taken to the prison. The lawyer will come straight down to the court cells to talk them through what just happened and set a timetable for considering any appeal. The defendant can take some of their own property with them from the sentence hearing if they came prepared. For male offenders sentenced in Exeter, the most likely prison they will be sent to after being refused bail or imprisoned is HMP Exeter. Here is more information about that prison:
Female prisoners are most likely to go to HMP Eastwood Park, half an hour north of Bristol. Young people may go to YOI Parc (Wales) or Portland.
As a rule a defendant can expect to serve half the term of imprisonment in a prison and the rest on license out of prison. If the prison term is less than 12 months then the defendant will be on license and post sentence supervision for a period of 12 months after release, which is like a license period (breach of the terms of post sentence supervision can result in an extra 14 days back in prison). For the period of license, until the full term is over, the offender is subject to the supervision of the probation service. If the offender does not cooperate with probation or it appears that the offender is raising a risk of offending again then recall for part or all the license term is possible.
If an offence triggers a life sentence or the offender is properly labelled as dangerous by the sentencing judge then release on license comes under the control of the parole board.
Mentally disordered offenders can be made the subject of special Mental Health Act disposals, including hospital orders, restriction orders and hybrid orders on sentencing. Such orders put the decision making whether that defendant is eligible for release or whether they serve their detention in a hospital or prison in the hands of specialist mental health tribunals.
Young people at the youth court have a different sentencing set of rules and principles. Custody is a very last option. Most options are about getting the young person working with the young offenders team. We have experienced and trained lawyers to advise youths who have to face court and we recommend a meeting in the office to talk it over in advance. Here is a link to the youth justice board with more about how youth sentencing works: https://www.sentencingcouncil.org.uk/about-sentencing/young-people-and-sentencing/types-of-sentences-for-young-people/
Other orders on sentencing
We can advise on these and there are many: Almost all such orders criminalise behaviour that in any other situation would be quite legal and normal. So someone might be banned from drinking in public as part of a criminal behaviour order, or stopped from entering a street (where their ex-partner lives or works) as part of a restraint order, or they may be stopped from visiting family with children (as part of a sexual harm prevention order). Sentencing rules and the orders that can be made at the time are complex and we will try to advise our clients throughout the process what is at risk and plan ahead to convince the court to take the fairest and most reasonable options.
We can advise on whether court orders such a sexual harm prevention orders, or restraint orders or criminal behaviour orders might be varied or discharged.