According to Andrew Ashworth, Section 142. The criminal justice act 2003 appears to embody the worst of a pick and mix sentencing, and one which invites inconsistency. In the light of this statement discuss, and comment on the aims and purpo

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According to Andrew Ashworth, Section 142. The criminal justice act 2003 appears to embody the worst of a “pick and mix” sentencing, and one which invites inconsistency. In the light of this statement discuss, and comment on the aims and purposes of sentencing. To what extent are they a reflection of sentencing currently practiced by the courts?

It can be said that the sentencing guidelines in England and Wales has been quite a difficult issue to understand, with incoherent ideas, which is further more complicated by the judiciary and government. Following the Criminal Justice Act 1991, a number of legislative changes were made, this however led to judicial confusion on which would be the appropriate rationale to be used. The Criminal justice Act 2003 was introduced and for the first time s.142 (1) defined the aims and purposes of sentencing through; Deterrence, Reparation, Rehabilitation, Desert, Incapacitation and Protection of the Public. But there was no apparent understanding of what the primary rationale to be used was, therefore judicial sentences became inconsistent due to the ‘menu like approach’. The Halliday Report (2001) and the Sentencing Guidelines Council have contributed to sentencing framework by placing greater emphasis on the rationale of ‘desert’.

Should the desert rationale be the primary rationale of sentencing? Other rationales will be discussed further on. It is difficult to determine whether the failure of ‘desert’ in 1991 was due to the changes made to the legislation or perhaps the pressure amounted to the government from the public, because this remained unanswered, it therefore allows us to evaluate its effectiveness as the main rationale or if it still remains inconsistent, as it did in 1991.

There is a range of circumstances for the court to consider when deciding on what sentence to hand out. Section 143 (1) allows a judge to decide upon which rationale is suitable. The punishment should fit the crime, and meet the needs of the offender to prevent them from re-offending. Proportional sentencing, as encouraged by the ‘just deserts’ theory is designed to avoid unjust sentences, through giving ideals of fair justice a leading role in the sentencing process. The desert rationale lays on the idea that the sentence given should fairly represent the seriousness of the offence, and the culpability of the offender. So theoretically the desert rationale seems to be an adequate way of dealing with offenders. Section 142-146, makes provisions for things to be taken into account when sentencing, Which consist of the principles for determining the seriousness of an offence, reduction in sentences for early guilty pleas along with other forms of mitigation, aggravating factors where the offence was motivated by the offender's race, religion, disability etc, are factors courts take into account as deserved of a harsher sentence.  The primary rationale used in Sweden is desert, and this has shown to be very effective. In England the desert rationale has also been used correctly and appropriately, as in the case such as Grad [2004] where an unintentional punch to the victim resulted in death, in which the offender couldn’t have predicted, taking into account the circumstances and the seriousness of the offence, a nine month sentence could be satisfied on the grounds that the action didn’t intend to cause serious harm. It was found that the victim died from medical conditions.

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A case that demonstrates the problems that desert is connected with, is that of Lumsden [2006] where a five-year sentence was ordered for the murder of his wife who was having and affair, he was convicted of manslaughter on the grounds of diminished responsibility. However he served less then half his sentence before being released. Therefore, it can be said that it has become harder to meet the aims of s. 143 (1). In regards to this view and to desert, Ashworth states, ‘no aggravating or mitigating factors should be allowed to take a sentence outside the sentencing range, due ...

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