Sentencing outside of the guidelines
The courts are provided with guidelines to assist in determining the appropriate sentence for a wide, and ever-expanding, range of offences.
The guidelines provide guidance on factors the court should take into account that may affect the sentence given.
Different levels of sentence are set out based on the harm caused and how blameworthy, or culpable, the offender is.
Once the level of harm and culpability are decided, the person sentencing is provided with a sentencing range.
That range could be a fine up to a community order, or, for example, a range of two to six years' imprisonment.
Do courts have to sentence within the "range"?
Section 125(1) of the Coroners and Justice Act 2009 makes it clear that every court must follow any relevant sentencing guideline:
"unless the court is satisfied that it would be contrary to the interests of justice to do so".
In addition, a Judge is entitled to determine that a case falls within a higher category, without actually departing from the guideline in accordance with section 125.
An example case
Anthony Owen was convicted of burglary with intent to steal, and he was sentenced to nine years' imprisonment.
The conspiracy was in relation to commercial premises where it was intended that four trailer units filled with tobacco would be stolen. The value of the goods would have been in the region of £12 million.
Owen was aged 64 at the time he was sentenced and had some convictions, although they were old and therefore ignored.
The maximum sentence for a non-dwelling burglary is ten years.
In Owen's case, the judge decided it was a case of greater harm and higher culpability, which meant it was a category one offence. That provided a range of one to five years.
The Court of Appeal agreed that this was a case where it was appropriate to go outside of the sentencing levels in the guideline.
It was a serious offence, with high culpability in a number of different respects. Although Owen wasn't a ringleader, he was integrally involved, and the trial judge had been in a good position to assess his role.
Having considered all relevant factors, the Court of Appeal decided that the sentencing judge had adopted too high a starting point. A sentence of seven years and six months was substituted.
The substituted sentence was still outside of the sentencing range as although there had been no financial loss; the loss would have been substantial. The judge had also rejected the suggestion that there had been poor planning and execution and the Court of Appeal saw no reason to interfere with that assessment.
Complexity in sentencing
The above case illustrates very well just how complex sentencing can be, even when we have guidelines to assist. In some cases, we can give very accurate sentencing predictions, but in some instances, there will be a margin of appreciation that can be very wide.
We scrutinise all sentencing decisions with great care and will not hesitate to advise on appeal when the Judge has stepped outside the acceptable range. Our detailed knowledge of the guidelines and caselaw means that you can always be assured of a fair outcome.
How can we help?
If you need specialist advice, then get in touch with Balaal Khan on 0800 999 247 2 and let us help. We can advise on a plea, defences and potential sentences in a wide range of circumstances.