PCD Solicitors are often asked by potential and existing clients what sentence will I receive if I am convicted at trial or plead guilty. This is of course a very important question but a very difficult one to give specific advice to due to the variation of powers the court has when imposing sentence. In addition to applying the sentencing guidelines relevant to the specific offence, defendant's must also be aware of the potential orders the courts are likely to impose upon conviction of a sexual offence, such as a Sexual Harm Prevention Orders (SHPO) and the prohibitions such orders place on them. The purpose of this article is to explain the steps the court will take when sentencing a person convicted of a sexual offence and why each case should be meticulously prepared uniquely to a persons specific circumstances in order to obtain the most lenient and fair sentence possible.
What is a sentence?
A sentence is a punishment a judge or magistrate must decide when a person has been convicted of a crime. The court uses sentencing guidelines to determine sentence which are set by the Sentencing Council. The guidelines vary for different offences and offer a wide range of sentences, they also provide judges and magistrates with guidance as to how the sentences should be applied.
The court use Sentencing guidelines which are in place to ensure judges and magistrates in courts across England and Wales take a consistent approach to sentencing. The Sentencing Code states that the court must follow any relevant guidelines unless it is contrary to the interests of justice to do so. Although the courts must sentence in accordance with the guidelines there is a wide range as to what sentence could be imposed.
A range of guidelines is necessary as offences happen in many different ways with many different results. Guidelines provide the court with a non exhaustive list factors that should be taken into account when considering the circumstances of the offence. The kind of factors the judge or magistrates will consider will include seriousness of the offence, harm caused to the victim, the offender’s level of blame, their criminal record, their personal circumstances and whether they have pleaded guilty. A guilty plea to offences can result in a reduction in sentence. The reductions begins at one third, this would be the amount a sentence is reduced by where a defendant pleads guilty at their first appearance in court, following the first appearance credit starts to reduce.
Specific to sexual offences there are also a number of orders the court can make as part of a defendant's sentence such as a requirement to sign the sex offenders register for a certain length of time and a Sexual Harm Prevention Order which prohibits a defendant from carrying out certain activities and also allows for monitoring of offenders in the community.
Types of Guidelines
There are two types of sentencing guidelines, those used by the magistrates courts and those for use in the crown court. The sentencing council also produces overarching guidelines on general sentencing issues and principles for purposes such as sentencing children and young people. The overarching guidance is to provide the court with guidance on issues that may not be addressed within the sentencing guidelines.
The magistrates courts sentencing powers are much less than the crown court and their maximum sentence is six months imprisonment. Where an offence carries a much lengthier sentence their case is sent to the crown court.
Sexual harm prevention order imposed when convicted of a sexual offence
The court will consider the making of a sexual harm prevention order where a person is convicted or pleads guilty to a qualifying offence. Qualifying offences are listed in schedule 3 and 5 of the Sexual Offences Act 2003. A SHPO can be imposed where a person is found guilty by reason of insanity or found to be under a disability and to have done the act charged, or cautioned etc.
When making an order the court must be satisfied that the offender poses a risk of harm to the public or to particular members of the public and therefore, the partiualrs of each case are relevant. The court will consider the offenders previous convictions, warnings or cautions (where relevant), probation pre-sentence report and any other material provided to the court to assist at sentence. The court will ask themselves whether the order is necessary, is it proportionate and whether it can be policed effectively.
Prohibitions places on offenders vary in each case and it is important defence solicitors view the proposed order prior to it being imposed by the court. Any issues regarding the proposed order can be put forward at court at the sentencing hearing by the defendant's legal representative. It is only negative prohibitions that can be put in place and must only be done so where it is necessary to protect the public from sexual harm. Examples of prohibitions that can be imposed are; prohibiting a person from taking part in certain activities (sports clubs, tutoring), undertaking certain forms of employment (working with children/vulnerable adults) and having electronic devices without monitoring software installed.
SHPO's must be imposed for a fixed period which is no less than five years. The order can state that it is to remain in place until the court makes a further order to remove the prohibitions.
Popular sentencing myths
1. Do criminals get out of prison early without serving their full sentence?
An offender will always serve their full sentence set by the judge. However half of this sentence is usually served in prison (where a custodial sentence has been imposed) and the remaining half on licence in the community. The courts do not have control over this and it is a rule set by parliament.
2. Does a life sentence really mean life?
A life sentence does mean that an offender will serve a life sentence however, only a minimum term will be served in prison this term is set by the judge. On release the offender will then remain on licence for the rest of their life and can be sent back to prison should they breach their licence. For the most serous offences an offender can receive a whole life tariff which means they will send the rest of their life in prison.
3. Why aren't all offenders sent to prison?
One of the courts aims when sentencing an offender is to prevent re-offending. Prison is not always the most productive place to send an offender in order to prevent them from offending in the future. It is sometimes in the best interests of the victim, the public and the offender to rehabilitate outside of the prison under supervision of the police, courts and probation service whilst in the community.
If you have any questions regarding sentencing please contact one of our specialist sexual offence lawyers who can guide you through the courts sentencing procedure specific to your case and provide you with the best possible advice. You can contact us on 0151 705 8488 for initial free and confidential advice. Alternatively, you can leave an enquiry on our website and we will contact you.