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Sentencing model, sentencing muddle , part two

Last week we looked at the tension between consistent sentencing and individual judicial discretion. How is this to be resolved?

Although judges will always be true to their oath, it is likely to be invidious to put a judge in a position where they are effectively passing a sentence they think is unjust just because of a guideline straitjacket. As against that, if the judge decides, sentencing becomes a lottery. We will see this when we compare sentences from different judges and different crimes.

Ultimately the level of sentence has to be a question of public policy. Public policy should therefore set out what the guideline sentence ought to be, what the bracket is, and what the relevant factors are. There must always be latitude for exceptional factors to operate but those must be properly exceptional factors and be sufficiently clear and cogent. They are ones which need to be referred to and explained as part of the sentence. That way it is not just a question of a judge passing whatever sentence he or she wants to but putting it in the guise of a sentence that is set for some reason to arise from exceptional circumstances when it is nothing of the sort.

Section 142 of the Criminal Justice Act 2003 requires, in respect of offenders aged 18 or more of the time of sentence, that the court have regard to 5 different purposes. These are punishment, crime reduction, reform and rehabilitation, public protection and reparation. The dominant principle is that the sentence must be proportionate to the seriousness of the offence. As to the five purposes, the sentence may obviously vary depending upon the circumstances and which of the purposes appears to be most relevant. Thus this is the context in which guidelines and recommendations have to operate.

The idea that the guidelines are likely to be unduly strict does not appear to be met by present proposals. For example the March 2010 proposals in relation to domestic burglary, suggested that for offences at the lowest end of the scale the usual penalty would be a community order, although this could rise to as high as 12 weeks imprisonment. Even with raised culpability or harm, although custody was the usual sentence, a community order was still possible. Only the level of seriously raised culpability or harm gave a sentencing range (1-4 years, with two the norm) which definitely involved custody. This could hardly be described as savage sentencing, or an indication that sentencing Council guidelines were likely to be very strict.

Disparities in apparent sentencing for different offences so that some people seem to be leniently treated and others more seriously treated for far less serious offences is precisely the type of thing which reduces public confidence in the law and bring it into disrepute. Therefore if in doubt, albeit allowing for individual discretion, there should if anything be more emphasis on guidelines.

Thus for example the recent ludicrous case of Joan Higgins illustrates both the folly of excessive and intrusive legislation, and brings sentencing policy into total disrepute. This dangerous criminal, a 66-year-old pet shop operator, was the subject of a prosecution brought pursuant to the Animal Welfare Act 2006. That act makes it illegal to sell domestic pets to children under the age of 16 unless accompanied by an adult. This includes fish, and most pertinently for present purposes includes goldfish. Joan Higgins sold a goldfish to a boy aged 14. (There was an additional charge regarding treatment of a cockatoo). This was a "sting" operation set up by Trafford council officials. Having been threatened with prison, she was fined 1000 and made subject to an electronic curfew. This was apparently on the basis that she could not fulfil a community order because she needed to work in the shop. Her son was fined 750 and made subject to a community order. They were both threatened that repetition of the offence could lead to imprisonment.

Apart from being a complete waste of public money, how on earth can this be regarded as comparable to a dwelling house burglary? However the punishment is directly comparable. Most people who were not completely demented would regard the protection of security within the home as rather more important than monitoring the age of purchasers of goldfish.

This is perhaps an extreme example, but illustrates why sentencing guidelines, whatever they are, have to be applied and applied consistently. That does not mean that individual factors cannot be taken into account, but if it is all left to judicial discretion (whether that of judges or magistrates) it effectively means that sometimes very serious offences will be treated in exactly the same way as minor ones. I would imagine Joan Higgins reads the newspaper accounts of lenient sentences with some dismay. She probably has plenty of time to read them, since given the curfew she now can no longer engage in her usual evening activities.

Michael J. Booth QC