Criminal courts and Lay people - Sentencing and court powers: aims, factors and types of sentences for adults Flashcards
Describe the aims and factors which affect the sentencing of adult offenders (8 markers)
Explain the different types of sentences available to the courts for adult offenders (8 marks)
Discuss the different aims or principles behind sentencing (8)
Explain the different factors that courts consider which can effect sentencing (8)
Describe the aims and factors which affect the sentencing of adult offenders (8 marks)
Section 142 of the Criminal Justice Act 2003 defined the aims of sentences as punishment of offenders, the reduction of crime by deterrence, the reform and rehabilitation of offenders, the protection of the public and the making of reparation by offenders to their victims. This is now part of the Sentencing Act 2020.
Retribution simply means that a person who has broken the law shall be punished. It also includes the idea that an individual defendant should receive a punishment that reflects the seriousness of the offence committed. There is an element of revenge here and the idea that the defendant is getting their just desserts. An example is the life sentence for Murder or before 1965, the death penalty for Murder. This is based on the biblical phrase “an eye for an eye, a tooth for a tooth, a life for a life”.
Deterrence can be of two types. Individual deterrence aims to prevent a particular offender from committing a further offence through fear of FURTHER punishment. General deterrence aims to deter other potential offenders from committing the same offence. This often requires media attention to work, such as in R v Whitton where a football hooligan was given Life and this made all the papers. Deterrence can also be seen to prevent many traffic offences - things like speed bumps and speed cameras put people off wanting to break the speed limit.
Rehabilitation is to reform the offender so that he or she will not reoffend. The aim is to improve an offender’s character or behaviour to reintegrate them into society. This is often seen in community sentences where defendants have to get drug or alcohol treatment orders.
Incapacitation or Protection of the public, this aim requires that serious violent offenders should be imprisoned as custody is often the only way in which the safety of the public can be guaranteed. It can also include curfews and tags to stop offenders going out at night and even chemical castration for sex offenders.
Increasing attention is being given to the needs and views of victims and this is where Reparation comes in. They can be compensated through a financial payment or by a community order providing for the offender to put right damage done, for instance by repairing something or painting over graffiti.
When deciding on the sentence, the judge or magistrates will consider information about the offender’s background, particulars of the actual offence and the offender’s plea. These can be split into both mitigating and aggravating factors. The sentencing guidelines will advise Judges and magistrates how much importance to place on each.
Mitigating factors are pleaded on behalf of the defendant to persuade the judge to reduce the sentence. Mitigating factors include a first offence, the age of the offender, a guilty plea, previous good character, whether the defendant has shown remorse and if the defendant was provoked. If the defendant pleads guilty at the earliest opportunity, this can reduce their sentence by one third – if they wait until the trial is underway their sentence will only be reduced by one tenth.
Aggravating factors are issues that would normally result in a higher sentence being imposed. They include the vulnerability of the victim, i.e. particularly old or young, that the offence was committed when the defendant was on bail, a weapon was used, the defendant has a history of previous convictions and that the defence was racially or religiously motivated.
The court may also refer to a pre-sentence report providing information on the defendant’s background. Victim statements will also be prepared and read to the court. These will be taken into account in deciding the sentence to be imposed.
The judge is responsible for sentencing in the Crown Court and Magistrates are responsible for sentences in the Magistrates’ Court.
Sentencing Act 2020
What act or legislation demonstrated all courts must have regard to the following purposes of sentencing and name the purposes (basically this act set out the aims of sentencing)
S.142 Criminal Justice Act 2003
-The punishment of offenders
-the reduction of crime (deterrence)
-the reform and rehabilitation of offenders
-the protection of the public
-the making of reparation by offenders
What act are these aims now part of
The aims of sentencing are now part of the sentencing act 2020
Aims: Retribution
Explain this aim
-Classic aim of sentencing
-Punish the defendant because they have committed a crime and therefore they are to be blamed.
-Punishment must fit the crime (proportionate) therefore it must be proportionate
- element of revenge against offender on behalf of the victim and society ‘eye for an eye, a tooth for a tooth and a life for a life’
- Basis for argument retaining death penalty
-EXAMPLE - until 1965 England and Wales had the death penalty for murder. We now take a life for murder by imposing a life sentence
Aims: Reduction of crime (Deterrence)
Explain what this means
- individual deterrence is where the individual offender is deterred from offending again in the future for example a prison sentence
-general deterrence aims to deter others from committing a crime, showing society the potential consequences of breaking the law and making an example of the offender
- the harsher the sentence, the more likely it is to be a deterrent
-general deterrence relies on publicity so that potential offenders are aware of the level of punishment they are likely to receive.
Provide a statistic which shows the effectiveness of individual deterrence
However about 65 percent of adult prisoners reoffend within 2 years of release and it is even greater with young offenders
Provide a case for general deterrence
R v Whitton (1985)
A life sentence of imprisonment was imposed on a football hooligan as a warning to others. This was reduced to 3 years on appeal
Aim: Protection of the public (incapacitation )
Explain this aim
- public protection is usually provided through incarceration - dangerous offenders are removed from society by long prison sentences
- other means of protection limit the defendants behaviour so they are unable to commit the crimes that make them a danger to the public eg curfews, electronic tagging, exclusion orders, driving bans.
Provide stat for expense of public protection
Extremely expensive way of dealing with offenders - 43k per year, per person
Aim: reform and rehabilitation
Explain what the English Legal System, C Elliott and F Quinn, 2008 stated about rehabilitations aim and how they achieve it
’’ the aim of rehabilitation is to reform offenders, so that they are less likely to commit offences in the future - either because they learn to see the harm they are causing, or because, through education, training and other help, they find other ways to make a living or spend their leisure time
Describe the problems with rehabilitation
- Many rehabilitation programmes that have been used in prisons over the years have had very little success.
- prisoners are required to undertake a variety of prgorammes whilst in prison to address their offending behaviour. Longer term prisoners may not be released early until they have completed such programmes.
- the problem arises once they are released and have no job prospects
- the prblem here is that it could lead to inconsistent sentencing. An offender who is seen as likely to reform could be given a treatment order, whilst another offender may simply be sent to prison
Provide an example as to what type of sentencing is used for rehab
This can be seen in community sentencing. The abuse of drugs causes many crimes and there have been new punishments introduced to help rehabilitate offenders. For example drug testing and treatment orders.
Aim: Reparation
- One way of doing this is through ‘restorative justice’
- all about offender trying to repair some of the damage done to the victim and society
- allows victim to come face to face with offender and explain the effect of their offence, whilst also having a say in what the offender will do to put things right
What are the limitations and advantages of reparation
- Had some success, mostly with young offenders
-However depends on the crime eg an offender can paint a wall hes put graffiti on or mend a park bench hes destroyed
-Limited as doesn’t work in cases of rape and murder
Aim: Bonus Aim - Denunciation
Explain
- This is a bonus aim but not included in the Sentencing Act 2020- the sentence given allows society to show its disapproval of the offenders criminal behaviour
- it provides moral boundaries within society and can shape the views of the general public
Provide an example of denunciation
e.g. campaigns against drink driving and its effects have changed society’s view and drinking and driving is now significantly frowned on and severe sentences are given to those who do drink and drive. The same now applied with using a mobile phone behind the wheel.
Sentencing Powers: factors which affect sentencing - court powers
What are the sentencing powers of the Magistrates’ court
-5000 max fine (can be UNLIMITED for SOME level 5 offences) like Ants fine for driving
-WAS Max 6 months in prison - now 12 months since May 2022
-Youth Detention and Training Order for up to 2 years
What are the sentencing powers of the Crown Court
- UNLIMITED fine
- Max life imprisonment
What are the 4 things the court will look at when sentencing
When determining the tariff (length) of sentence, the court will consider:
- Age of offender
- Likelihood of further offences being committed
- Seriousness of the offence
- Extent of harm likely to result from further offences
Maximum sentences:
How are Magistrates and Judges restricted by maximum sentences
- Magistrates and Judges are restricted to maximum sentences that are laid down by Parliament in the statute covering each offence.
- for example, the maximum sentence for theft is 7 years, the maximum sentence for rape is a discretionary life sentence
- Murder has a mandatory life sentence so it quite unique
What do we mean by the terms; ‘Discretionary’ and ‘Mandatory’
Minimum sentences:
What act introduced minimum sentences for both persistent offenders, drug dealers and burglars
- The Crime (Sentences) Act 1997
What did this act also introduce
- The act also introduced an automatic life sentence for offenders convicted of a second serious or violent offence.
