Principles on which sentencing decisions are based

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Sentencing: 

Principles on which sentencing decisions are based have to be considered in the light of the available penalties which a criminal court may impose on a defendant. Whatever principles there are will be reflected in the types of sentence available and the way in which the courts choose between alternative penalties.

The valuable penalties are first of all determined by the offence for which the defendant has been convicted: many minor offences for example will be punishable only by way of fine. In addition if the matter is disposed of in the Magistrates’ Court or Youth Court (for juveniles) there are additional restrictions on the powers of sentence. Generally no custodial term may exceed six months (12 months exceptionally where more than one offence is involved) nor may any fine exceed five thousand pounds.

However, in these cases if the offence is ‘triable either way’ the magistrates may commit the offender to the Crown Court for sentence only where the Crown Court has powers to impose any sentence permitted by the offence (although in the case of juveniles, except in very restricted cases, any custodial term must not exceed one year).

The courts broadly have a choice between a discharge (conditional or absolute), fine, community sentence (there are six type of community sentence: probation order, community service order, combination order, curfew order, attendance center order and supervision order), imprisonment, suspended imprisonment and in the case of juveniles (up to and including 17 year olds) and young offenders (up to and including 20 year olds) detention at a youth offender institution.

The separation of young offenders from adult offenders in custody reflects a general underlying theme of treating juveniles in a different way from adult offenders.

Both the courts and policy makers have recognised the existence of the range of principles on which sentencing decisions may be made. The policy underlying sentencing was subject to a major view in the late 1980’s culminating in the government White Paper ‘Crime, Justice and Protecting the Public’. The proposals in the White Paper were then turned into law by the Criminal Justice Act (CJA) 1991, which has, as a result of wide criticism, been amended by the CJA – 1993. The key effect of the CJA – 1991 was to make sentencing of the basis of ‘desert’ or what the offender deserved for the offence the basis of all sentencing decisions.

Deterrence is an obvious aim of sentencing. The idea is simply that if a penalty is imposed for committing a crime this should deter both the particular offender and others from committing that type of offence. This may involve the imposition of exemplary sentences: a sentence to make an example of a particular offender as occurred in Freeman (1989), where a persistent pick pocket was sentenced to five years’ imprisonment for a theft on the London Underground.

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It seems unlikely that such an approach would be permissible under the CJA – 1991 because of the desert-based approach. It is also the case that exemplary sentencing with a view to punishing one offender particularly harshly to deter others in undesirable as it is unjust to the person who is being made an example. In addition, deterrence as a basis for sentencing is not well founded empirically. Although it is difficult to show the effect of sentences on individuals or society generally (as if there is a deterrent effect the person deterred commits no offence and is therefore untraceable) ...

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