Puzzling Section 29 (1
| DOI | 10.1177/026455059404100105 |
| Published date | 01 March 1994 |
| Date | 01 March 1994 |
| Subject Matter | Articles |
Puzzling Section
29(1)
Nigel Stone considers the new sentencing provisions relating to
previous convictions and failure to respond to previous sentences.
sentencing prmciple that a good record
s29 (1)
mitigates and a repeat offender progressively
loses mitigation, but that the current offence
’In considering the seriousness of any
should be regarded as setting a ’ceiling’
offence, the court may take into account
beyond which the sentence cannot properly
any previous convictions of the offender
go’. Indeed, Lord Taylor CJ has endorsed
or any failure of his to respond to
this interpretation in his address to NACRO’s
previous sentences’
1993 AGM.
Such ’progressive loss of mitigation’ is
said to reflect a legitimate intuitive degree
of tolerance for the first time offender, a
mplemented with unusual haste in
August
recogmtion of human weakness or inex-
1993, the amended version of
perlence, together with a correspondingly m-
Criminal Justice Act 1991 s29, introduced by
creasing intolerance for those who have
Criminal Justice Act 1993 s66(6), remains
failed to respond appronately to the censure
an enigmatic feature of the sentencing jigsaw,
of prosecution. This precept is not entirely
as yet umnterpreted m
any published Court
self-evident or of universal applicability. For
of Appeal guidance. The revised Home Of-
example, should the principle be extended
fice/NACRO training materials became
equally to the meticulously planned or the
available only in December 1993 and the new
very grave first offence?
wisdom on addressing sentences past is still
Such quibbles apart, under the
percolating down to the PSR-face. However,
framework of the 1991 Act the absence or
any attempt to re-thmk the probation officer’s
relative lightness of previous record appears
contribution regarding the defendant’s
properly to be taken into account under the
sentencing career will be hampered by the
general mitigatory provisions of s28(1),
contradictions and ambiguities of the new
allowing consideration of factors unrelated
provisions.
to the seriousness of the present offence.
However, the new provision clearly seeks to
, ,
connect previous record to offence
seriousness, as reference to the Parliamen-
In regard to previous convictions, it has
tary debate helps to explain. Speaking for
been speculated that the new subsection
the Government in the Lords-’, Earl Ferrers
simply serves to remstate the pre-1991 Act
commented that the progressive loss of
23
mitigation principle did not fit easily within
essential ’get-out clause’ when dealing with
a just deserts framework and sought to
offenders who were prima facie eligible for
discredit it by characterising it thus:
a non-custodial sentence but declined to con-
sent or
’The offender
co-operate. This facility is preserv-
starts off with a certain
ed within the 1991 Act (see sl(3) and related
amount of mitigation &dquo;in the bank&dquo; as it
provisions in Schedule 2 para 3(2)(b) and
were,...
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