Crime and Punishment - the Judge and Sentencing
^ TOPFollowing a guilty verdict
The jury has found a defendant guilty. Alternatively, whether on a first appearance or before or at trial, the defendant has pleaded guilty. The judge then has to go about deciding on the correct sentence. How does he do this?
^ TOPSentencing tariffs
One of the important things he has to consider is the nature of the offence and the level of sentence that that type of offence attracts. Obviously each offence will have a maximum penalty. It goes without saying that the judge cannot sentence a defendant to more than that. However within various offences there will be rough guidelines as to what the appropriate sentence is for a particular type of offence. This is known as the "tariff". Decisions from the Court of Appeal will usually be the ones that set the tone for particular types of offence.
For example, within rape cases there may be a tariff level that you would normally expect for any rape, and then an increased tariff for certain "aggravating" features which make the offence even worse (use of a weapon or violence etc).
^ TOPJudges have discretion
If the judge is either too severe or too lenient having regard to the guidelines and the particular circumstances of the offence then his decision can be successfully appealed. However he does have a level of discretion. Sometimes the circumstances of the offence may make what would otherwise be a serious offence look less severe. The position of the offender may also be relevant. You have to know all the circumstances of the case in order to know precisely why that sentence was passed. Always be wary of newspaper stories which give a very brief account of the crime, say what the sentence was, and then say how outrageous the sentence was. If you do not know the details, you do not know the reason why that particular sentence was passed.
^ TOPWorking within the guidelines
Judges are well aware of the tariff guideline restraints under which they operate. Let us say the tariff for a particular crime was between four and six years imprisonment, and the circumstances of the particular offence put it in the mid range of the tariff. The judge might personally think that a nine-year sentence was more appropriate, but he has to be guided by the tariff. Nonetheless he will still have a degree of discretion. Some judges are inclined to give harder sentences than others, but they are still operating within the same overall framework. If the sentence is outside the range of sentence is which any reasonable judge could pass, then the appeal court can interfere. Any sentencing judge knows that perfectly well.
I was recently at a retirement dinner for a judge who had been marked out in a certain national newspaper as the "worst offender" for soft sentencing. He read out part of a letter he had received. The letter was from a serving prisoner. It went roughly like this. "I recently read in a newspaper that you are the softest judge in the country. I suppose therefore I should be grateful that you only sentenced me to a total of 18 years, and that someone else would have been worse, you soft b*stard".
^ TOPImpact statements and mitigationt
If there has been a trial the facts will already be known. If the defendant admits his guilt and pleads guilty the prosecution will outline the facts. There are two particular aspects of considering sentencing which it is worth looking out in some more detail. Those are the victim impact statement, and a plea in mitigation made by or on behalf of the defendant (seeking to justify a more lenient sentence). We will look at each of those in the succeeding articles over the next two weeks.