First Time Lucky? Exploring Whether First-Time Offenders Should Be Sentenced More Leniently
| Author | Elaine Freer |
| DOI | 10.1350/jcla.2013.77.2.834 |
| Published date | 01 April 2013 |
| Date | 01 April 2013 |
| Subject Matter | Article |
First Time Lucky? Exploring
Whether First-time Offenders
Should Be Sentenced More
Leniently
Elaine Freer*
Abstract This article explores the normative position and theoretical just-
ifications for sentencing first-time offenders more leniently than repeat
offenders, and examines whether such a practice is defensible. Those
justifications include a lack of awareness of the gravity of criminal behavi-
our, a single lapse, that no censure has previously been communicated by
the criminal justice system to that person, adolescent-limited offending,
the impact of being in a minority group, and non-uniform impact. It
examines whether various sentencing philosophies support sentence re-
ductions for first-time offenders, and whether the justifiability of such
practices depends on the theoretical basis and aims of sentencing, for
instance the role of proportionality and deterrence.
Keywords Sentencing; First-time offenders; Proportionality; De-
terrence; Philosophy of sentencing
Sentencing issues are often political ‘hot potatoes’. Different parties
have different views on the amount of punishment that is appropriate in
any given situation. A particularly controversial sentencing context is
that of those people who have committed a criminal offence for the first
time. The relevance of previous convictions and, more importantly for
this question, a lack of them, has also long been debated amongst
academics. The current position regarding first-time offenders is that, in
the case of some offences, it is a mitigating factor if a defendant coming
before the court has no previous convictions. For example, the new
guidelines issued by the Sentencing Council for burglary state that a lack
of previous convictions will be seen as a ‘Step Two’ consideration. That
is, it affects the sentencing within the category which a determination of
seriousness and culpability has placed the offender.1
However, the question posed in this article is a normative one; ‘should
first-time offenders be less severely sanctioned?’ as opposed to whether
or not they are under the current system. Before dealing directly with
the issue of whether or not first-time offenders should be offered a
discount, it is necessary to consider the theoretical problems which may
be caused by doing so.
* BA (Hons) (Cantab), MPhil (Cantab), non-practising Barrister; e-mail: ef269@
hermes.cam.ac.uk. This article is adapted from one submitted towards the MPhil in
Criminology.
1 Sentencing Council, Burglary Offences Definitive Guideline (Sentencing Council:
London, 2011), available at http://sentencingcouncil.judiciary.gov.uk/docs/Burglary_
Definitive_Guideline_web_final.pdf, accessed 19 February 2013.
163The Journal of Criminal Law (2013) 77 JCL 163–171
doi:10.1350/jcla.2013.77.2.834
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