Sentencing
| Pages | 359-429 |
| Author | Patricia Lees,Eleanor Laws |
12
SENTENCING
A. Introduction 12.01
B. Indications of Sentence (Goodyear
Indications) 12.16
C. Sentencing Multiple Offences 12.19
1. Associated Oences 12.20
2. Sample Counts and Multiple Incident
Counts 12.22
3. Multiple Extended Sentences 12.24
D. Suspended Sentence Orders and
Community Orders 12.25
1. Suspended Sentence Orders 12.26
2. Sexual Oending Programmes 12.31
3. Custodial and Community Sex Oender
Programmes; e Dierence 12.32
4. Community Sentences 12.33
5. Children and Young People (up to
18 years) 12.35
6. Adult Oenders (18 years and over) 12.37
E. Offences which Straddle Different Acts 12.43
1. Oences Straddling the Implementation
of the Sexual Oences Act 2003 12.45
2. Oences Listed in the Violent Crime
Reduction Act 2006, s 55(2) 12.49
3. Oences Listed in the Violent Crime
Reduction Act 2006, s 55(5) 12.50
F. Sentencing Regimes for Dangerous
Offenders 12.51
1. Denition 12.51
2. Specied Oences 12.52
3. e Approach to Sentencing a
Specied Oence 12.53
4. Dangerous Oenders under 18 at Time
of Sentence 12.56
5. Discretionary Life Sentence: D under
18 (Required Sentence of Custody
for Life for Oence Carrying Life
Sentence) 12.57
6. Extended Sentence: D under 18 12.60
7. Dangerous Oenders aged 18– 20 at
Time of Sentence 12.64
8. Dangerous Oenders aged 21 or over
at Time of Sentence 12.68
9. Extended Sentences: e Approach for
Oenders of Any Age 12.72
10. Calculating the Custodial Term: e
Approach when Sentencing More than
One Oence 12.78
11. Calculating the Extension Period 12.83
12. Imposing Consecutive Extended
Sentences 12.85
13. Imposing Extended and Determinate
Sentences Together 12.87
14. Imposing Consecutive Extended and
Determinate Sentences 12.88
15. Informing the Oender of the Eect of
the Sentence 12.90
16. Extended Sentences; Release
Provisions 12.91
17. Determinate Sentences for Specied
Oences; Release Provisions 12.92
18. Pre- Sentence Reports and
Dangerousness 12.96
G. Offenders of Particular Concern 12.101
H. The Calculation 12.108
1. Release Provisions 12.111
2. Imposing Both Consecutive
Determinate and s 265/ 278 Sentences 12.114
3. Sentencing Oences which Straddle
the Sexual Oences Act 2003 12.116
I. Current Dangerousness Provisions:
Offences Committed Post the
CJA 2003 and LASPO2012 and
Incorporated into the Sentencing
Code 2020 12.117
1. Life Sentence 12.118
2. Discretionary Life Sentence 12.120
3. Statutory Life Sentences, ss 273, 274,
283, and 285 Sentencing Code 2020
3.12.2012 to present 12.123
4. Whole Life Sentence 12.132
J. Sentencing Historic Offences 12.135
1. e Fundamental Principles 12.138
2. General Principles to be Drawn from
Forbes 12.139
3. Abuse of Trust 12.143
4. Sentencing Relatively Young Oenders
for Sexual Oences Committed Some
Years Before and When ey Were
under 18 12.156
5. Sentencing Geriatric Oenders 12.157
K. Release, Licence, and Supervision
Requirements 12.158
1. Sentencing for Oences Committed
under a Dierent Licensing Regime 12.159
2. Fixed Term Oenders 12.160
3. Licence Period for Sentences of
Imprisonment of Less than
12 Months: Oender Rehabilitation
Act 2014 12.161
4. Extended Sentence: Release on Licence 12.164
.
5. e Release of Prisoners (Alteration
of Relevant Proportion of Sentence)
Order 2020 12.165
L. Application of the Sentencing
Guideline and Recent Changes 12.169
1. Recent Changes to the Denitive
Guidelines 12.175
2. Harm and Culpability 12.180
3. Determining Culpability when No
Sexual Activity Has Taken Place 12.182
4. Psychological Harm 12.185
M. General Principles 12.186
1. Good Character and/ or Exemplary
Conduct 12.189
2. Good Character Since the Oences 12.190
3. Ostensible or Apparent Consent 12.191
4. e Need to Consider the Overall
Picture 12.193
5. Indecent Images 12.194
6. Sentencing Adult Oenders with
Mental or Developmental Disorders
or Neurological Impairments 12.201
7. Sentencing Children and Young people
with Mental Health Disorders 12.203
N. Sentencing Children and
Young People 12.204
1. Factors Not Envisaged by the
Sentencing Council Guidelines 12.216
O. Orders and Requirements after
Conviction 12.217
1. e Children and Adult Barring Lists 12.217
2. e Lists of Oences Attracting
Automatic Inclusion 12.219
3. Restraining Orders 12.224
4. Sexual Harm Prevention Orders 12.230
5. Notication Requirements 12.231
6. Orders under the Modern Slavery
Act 2015 12.236
7. Serious Crime Prevention Orders,
s 19 Serious Crime Act 2007 12.240
8. Recommendation for Deportation 12.242
P. Prosecution Reviews of Sentence
(Attorney General’s References) 12.247
1. Oences Referable to the Court of
Appeal by the Attorney General 12.248
2. Checklist of Matters to be Included in
Attorney General’s References 12.250
A. INTRODUCTION
Oenders must be sentenced according to the sentencing regime in place at the time the
oence was committed. e maximum sentences available are set out within the chapters of
this Referencer at the sentencing paragraph for each oence.
Following its review of sentencing legislation, the overall recommendation of the Law
Commission was for the implementation of a new Sentencing Code to substantially sim-
plify the law of sentencing by removing the need to make reference to historic versions
of sentencing legislation when dealing with older oences. It will instead apply the cur-
rent law to all oenders whose convictions occur aer the Sentencing Code has come
into force (subject to limited exceptions necessary to respect the fundamental rights of
oenders).
e Sentencing Act (SA) was implemented on 1.12.2020. It applies to those convicted on or
aer 1.12.2020. Anyone convicted before that date will be sentenced according to the pre-
existing law.1
e Act introduces the ‘Sentencing Code’ in Parts 2– 13; a framework which consoli-
dates and streamlines a substantial body of complex and voluminous sentencing laws
currently spread across multiple statutes. It is intended to ensure greater transparency
and clarity is achieved by Courts when passing sentences. Part 1 of the Act contains an
overview (s 1) and deals with the application of the Code (s 2). Consequently, when
1 Schedule 27 to the Act (transitional provisions and savings) provides for continuity of the law if a Court faces
pre- Code and Sentencing Code matters.
12.01
12.02
12.03
12.04
. 361
referring to Parts 2– 13 inclusive, the terms ‘Sentencing Act’ and ‘Sentencing Code’ are
interchangeable.
For cases where the conviction pre- dates 1.12.2020, the now ‘old’ law, principally contained
in the CJA 2003, PCC(S)A 2000 and CJIA 2008 will apply. e SA is now the principal
source of sentencing procedure legislation, with cross- references to other pieces of relevant
legislation such as the Road Trac Oenders Act 1988 and the Proceeds of Crime Act 2002.
e SA does not remove any sentencing disposals or introduce new ones. It does not subject
the oender to a harsher penalty than was available at the time of the oence and it does not
replace Sentencing Guidelines or the work of the Sentencing Council. Pre- existing case law
in these areas will, therefore, continue to be germane to the Sentencing Code.2
e ‘Sentencing Code’ is a consolidation of existing sentencing procedure law. It brings to-
gether over 50 pieces of primary legislation relating to sentencing procedure into one single
Act. at exercise provided an opportunity to remove ambiguities in draing, produce a
more coherent structure to the order in which provisions appear, and introduce greater
consistency of language. It has been draed with the needs of judges in mind and seeks to
make the law more readily accessible. It will mean that any sentencing exercise should be
capable of being resolved by reference to the Code, Sentencing Council Guideline(s) and
the CrimPR/ CrimPD.3
e Code applies only to convictions on or aer commencement date (1.12.2020). But the
‘Clean Sweep’ approach in the Code means that it applies to all convictions on or aer that
date irrespective of the date of the commission of the oence. ere will be transitional
cases where some oences before the court for sentencing will be governed by the Code
and others by the pre- Code law but this will diminish quickly with time. What matters is
the date of conviction. Judges will need to be vigilant as to the date of conviction if, for
example, an oender absconds and is apprehended, was convicted in absence or, for ex-
ample, the conviction was before 1.12.2020 but sentencing is aer that date because reports
were sought. Schedule 27 (transitional provisions) provides for continuity of the law if a
court faces pre- Co de and Code matters. e Code applies to England and Wales. It extends
to Scotland and Northern Ireland only where it is necessary, for example to facilitate the
transfer of orders (eg a community order) and the oender proposes to move from order)
and the oender proposes to move from one jurisdiction to another.4
e most innovative aspect of the Code is that it will apply to every person convicted on
or aer the date of the commencement of the Code (1.12.2020). is is subject to the im-
portant safeguard that, because of the way the Code has been draed, no- one will be at risk
of being sentenced to a heavier penalty than could have been imposed at the date of the
commission of his or her oence. e way that has been achieved is by a technical draing
device in the Sentencing (Pre- consolidation Amendment) Act 2020. All that any judge or
advocate applying the Code needs to know is that where someone is being sentenced under
the Code, the provisions already guard against any unfair retrospectivity. Where there was
2 Sec tion 17(2) Interpretation Act 1978.
3 From ‘Sentencing Code— 10 things you need to know’ written by Professor David Ormerod QC CBE, then
Law Commissioner for Criminal Law who led the work of the Law Commission to produce the Sentencing Code.
4 From ‘Sentencing Code— 10 things you need to know’ written by Professor David Ormerod QC CBE.
12.0 5
12.0 6
12.07
12.0 8
12.0 9
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