Easton & Piper: Sentencing and Punishment 4e
Chapter 3: Guidance for end-of-chapter questions
At the end of chapter 3 you were given:
- A case study which asked you to sentence Tess
- Discussion questions focusing on seriousness and the Sentencing Council Guidelines.
A. Case study
At the end of Chapter 3 we included a sentencing exercise about Tess who was arrested, charged, and pleaded guilty to fraud by false representation under s2 of the Fraud Act 2006, for which the maximum penalty is 10 years? imprisonment. You were asked to sentence Tess, explaining and justifying your chosen sentencing framework and particular sentence. The facts of the case, on which the Crown Court Judge must pass sentence, are as follows:
Tess, a 21-year-old undergraduate, has been working part-time for the last two years as a care assistant at a Residential Home for the Elderly. In this capacity she persuaded six elderly residents to hand over ?60 each to her, ostensibly to pay into a Christmas fund. This they all did one morning as arranged and she told them she would collect another instalment the following month. Tess used the money to pay her rent as she had large debts and could not rely on her father whose business had just collapsed. She was seriously depressed and was attending counselling sessions. (You are not expected to use the provisions of the Mental Health Act 1983 in this exercise: these possibilities will not be dealt with until Chapter 6, section 6.4).
Tess?s deception was discovered before the next instalment was due because one of the residents from whom she had obtained money asked the manager about the Christmas fund. Tess did not at first plead guilty, fearful that she would never obtain employment on graduating and believing the elderly residents were too ill and mentally confused to give evidence. In the event, a change of medication dramatically improved the physical and mental health of one of them. Consequently, Tess, changed her plea to guilty before the trial.
In between the offending and trial, Tess graduated and was left a legacy of ?3,000 by an aunt. After paying her debts she has ?150 left. She was given a reprimand (Reprimands and warnings have been replaced by youth cautions: see Chapter 6, section 6.3. The court might view this as a previous conviction) at the age of 14 for shoplifting (under the Theft Act 1968, s 1) and had one previous conviction, at the age of 16, for burglary of a dwelling under s 9 of the Theft Act 1968, for which she received a referral order. (She was not given detention in a young offender institution because of mitigation in relation to the death of her mother and a subsequent depressive illness.)
You were also told that you might find helpful the checklist provided in section 3.2.1 and also the relevant guidelines:
Sentencing Council (2011b) Burglary Offences: Definitive Guideline, London, Sentencing Council.
Sentencing Council (2014a) Fraud, bribery and money laundering offences: Definitive guideline. London, Sentencing Council
1. As Tess has not committed an offence of violence and is not to be dealt with under the Mental Health Act 1983 provisions, the normal 'just deserts' sentencing framework applies, although the fact that Tess has suffered, and might still be suffering from, a depressive illness might be a factor in mitigation or the form of sentence. The main task is, then, to establish how serious the instance of offending was. You should consider the statutory factors which must aggravate seriousness and note that on the facts of this case only the aggravation relating to previous convictions is relevant. You should, therefore, apply CJA 2003 s143(2) to the facts of the case.
2. You then need to consider other factors which might mitigate or aggravate the elements of culpability and harm. In 2009 the, then, SGC issued a guideline on Sentencing for Fraud and guidance relevant to this case study was given in the section entitled ?Confidence fraud? (especially pp19-20) which dealt with all offences covered by the generic fraud offence in s1 of the Fraud Act 2006. Paragraphs 4 and 7 said the following:
?4. A factor common to many confidence frauds, is that the offender targets a vulnerable victim; it is therefore a determinant of seriousness for this type of fraud. An offender is more culpable if he or she deliberately targets a victim who is vulnerable as a result of old age, youth or disability and there is a more than usually serious degree of harm where the victim is particularly vulnerable.?
?7. A further determinant of seriousness is whether the fraud was a single fraudulent transaction or a multiple fraud. Most confidence frauds will by their nature involve many actual or potential victims and multiple transactions and should be regarded as multiple fraud.?
That guideline had a grid for confidence fraud on page 20 with the value of the property lost along the top (four categories) and four different offence descriptions (relating to the number of transactions and victims) down the left hand side. As the previous guidance for this case study noted, it was not easy to decide which of the 4 levels of seriousness for offences where the loss is less than ?20,000 most fits the facts of the offending by Tess.
However, that guideline has now been superseded by a new definitive guideline issued by the Sentencing Council and effective from 1st October 2014: Fraud, Bribery and Money Laundering Offences. The new guideline is in the now standard ?two-step? format and there is a new table at Step Two (page 8). This has five categories of harm down the left hand side and 3 categories of culpability along the top.
3. Before this table is used Step One now requires you to determine first whether the culpability (page 6) level is ?high?, medium? or ?low?. The facts show that Tess?s offence could be assessed as of high culpability (Category A) because it was an abuse of trust, targeting a relatively large number of vulnerable victims, and was intended to continue over a period of time. Secondly, you need to assess the amount of harm, first by positioning the loss caused or intended and then by assessing victim impact. Assuming two ?instalments? from each of the six residents the loss would have been ?720 and so within the lowest category (5) ? less than ?5,000. The loss is, therefore, very small in relation to a scale which rises to ?500,000 or more in Category 1. As regards impact on the victim you must exercise your discretion to decide whether or not the detrimental impact (financial and psychological) on the victims was ?serious? or ?considerable?, taking into account their age and financial resources, in the context of a relatively small financial loss. On the basis of your decision you would locate the impact as high, medium or lesser (page 7). You should then decide whether this level of impact requires you to move the harm level upwards, either within Category 5 or up to Category 4.
4. Assuming you leave the level of harm at Category 5 and assess culpability at Category A you now look at Table 1 in Step Two which gives you a starting point of 36 weeks? custody with a range of high level community order to 1 year?s custody. If you had decided on a lower level of culpability (medium ? B) your starting point would have been a medium level community order with a range of Band B fine to 26 week?s custody. Within either of these you would/might be required to consider whether the case surmounts the custody threshold. You should consider whether the facts of this case put the sentence above or below the starting point. However, there is also a list of ?additional factual elements? on page 10 of the guideline which lists other factors increasing or reducing seriousness or reflecting personal mitigation. This exercise does, therefore, reveal the difficulties of fitting the facts of a case into a sentencing grid. There is still discretion to be exercised.
5. You should at this point consider other factors including personal mitigation and decide whether there are any valid reasons to allow you to exercise your discretion to reduce the sentence on that basis. On the facts of this case you might consider the effect of Tess's depression, her financial difficulties and her family's problems. You might also note that she has paid off her other debts. Once you have established a sentence, you should decide the level of discount to give Tess for her plea of guilty under the Criminal Justice Act section 144, using the latest guideline and noting that her plea was given quite late in the process (Step Four at page 11). You should also consider the terms of a compensation order (Step Six): see Chapter 6 of Sentencing and Punishment for information.
You were then asked to decide whether your sentence would be different if the scenario were changed such that:
a) Tess had no previous convictions.
This requires you to think again as to the effect you gave to the fact that Tess had convictions for shop-lifting and burglary in the original scenario. You can then assess how different the outcome might be if she had no previous convictions. You need, therefore, to examine in detail the application of the provision in the CJA 2003 section 143(2):
In considering the seriousness of an offence ("the current offence") committed by an offender who has one or more previous convictions, the court must treat each previous conviction as an aggravating factor if (in the case of that conviction) the court considers that it can reasonably be so treated having regard, in particular, to?
(a) the nature of the offence to which the conviction relates and its relevance to the current offence, and
(b) the time that has elapsed since the conviction.
This issue of persistence is discussed in section 3.2.4 of Chapter 3 in the 4th edition. There is no Sentencing Council guideline and the importance of any previous offending depends, therefore, on assessments of the offence type and the frequency of previous offending. The first set of figures from the Sentencing Council?s Crown Court Sentencing Survey showed that ?59 per cent of offenders with one to three previous convictions taken into account were sent to immediate custody. This increased to 78 per cent for offenders with 10 or more previous convictions taken into account? (Sentencing Council 2011). In the latest Survey, Figure 4.7 ?shows that for all offence types, the presence of at least one recent and relevant previous conviction increased the chance of being sent to custody. The increase was most prominent for driving offences; the proportion sent to immediate custody increased from 26 per cent for cases with no previous convictions taken into account to 85 per cent for offenders with 10 or more (Sentencing Council 2015). Offenders sentenced for burglary and robbery were also more likely to have previous convictions taken into account in both these Survey periods.
b) Tess defrauded the residents because they were all South Asians.
This requires you to consider whether the motivation for the offence was the race of the victims so you must apply the statutory provision in relation to racial aggravation (CJA 2003 section 145). You then need to consider how much this increases the sentence. The Sentencing Advisory Panel (SAP) (2000) issued guidance on the amount of sentence enhancement to be imposed and suggested 40?70 per cent for fines, community, and custodial sentences unless this pushed the sentence over a threshold. In Kelly and Donnelly (2001) the Court of Appeal adopted the SAP?s list of factors to be used to scale gravity, but rejected formal percentage enhancements. All these statutory aggravations can be found on the list of ?factors indicating higher culpability? in the guidance on Seriousness (Sentencing Guidelines Council 2004: para 1.22). Note also that the guidance in the CJA 2003 about minimum terms to be served by those convicted of murder gives a starting point of 30 years for murders motivated by race, religion or sexual orientation (Schedule 21 para 5).
c) The current offence was committed whilst Tess was on bail awaiting trial for a drug offence ? a charge of which she was subsequently acquitted.
This requires you to consider the effect on the calculation of seriousness of the statutory aggravation relating to offending whilst on bail (CJA 2003 section 143(3)). It is irrelevant that Tess was not convicted of the charge in relation to which she was remanded on bail. Although this must be taken into account there is no guidance as to the weight to be given to this factor.
d) Tess?s current offence was burglary in a dwelling, not fraud.
Domestic burglary (Theft Act 1968 s9) carries a maximum penalty of 14 years? imprisonment. If the burglary was committed with intent to inflict grievous bodily harm on a person or to do unlawful damage to a building or anything in it then the offence is a serious specified offence for the purposes of s224 of the Criminal Justice Act 2003. Therefore the provisions for ?dangerous offenders? would need to be considered (see Chapter 5 sections 5.3 and 5.4). As the relevant provisions in the Legal Aid, Sentencing and Punishment of Offenders Act 2012 have been implemented a sentence of imprisonment for public protection (IPP) cannot be used if is assumed Jess was convicted of the offence on or after 3rd Dec 2012. You would, however, need to consider whether the facts of the offence fit the criteria for the rejigged extended sentence (CJA 2003 s226A) and whether Jess is assessed as ?dangerous? (CJA 2003 s229): and then decide whether to impose such a sentence.
If Tess had two previous convictions for domestic burglary then you would be required to impose a custodial term of at least 3 years under s111 of the Powers of Criminal Courts (Sentencing) Act 2000.
If you decide you can simply use the just deserts framework you need to apply the ?two step? guidance in the latest definitive guideline published by the Sentencing Council: Burglary Offences (2012: 7-10). The offence range given is community order ? 6 years custody which at Step Two is split into 3 offence categories with offence ranges within this overall range. You would need to determine the offence category and consider whether the factors indicating greater/lesser harm and higher/lower culpability listed in the guidelines at Steps One and Two are relevant to the facts of the case.
B. The importance of seriousness: questions for discussion
Policy debates in the last decade have been dominated by legislation and proposed changes in relation to the offender deemed to be a serious risk to the public and also in relation to the effectiveness of community punishment. However, in law and in practice it is the issues of seriousness, proportionality, and just deserts principles which are the bread and butter of those who sentence and the determinants of outcome for most offenders. Sentencing guidelines are making this process ever more technical and detailed but clearly within a retributivist framework. The riots in England in the summer of 2011 also revealed popular support for ensuring offenders received their just deserts as an aim of punishment, albeit that some calls were for a sentence which might be viewed as disproportionate. However, those riots also led to a focus on deterrence, a utilitarian aim, which we will consider in the next chapter.
We would also point out that issues regarding the victim, reparation, rehabilitation, and control are grafted on to this retributivist framework and we do not ignore the fact that another framework?for the dangerous?runs alongside it. In Chapters 5, 6, and 10 we will focus on these other issues.
How would you answer the following question?
Does the approach of the guidelines published since 2012 make sentencing too mechanical an exercise?
If you have already completed the end of Chapter 2 tasks you will appreciate that this is to an extent another way of approaching the questions about discretion and guidelines. If you have not done those exercises we recommend you do so and consult the guidance on the Online Resource Centre.
For this question you need to explain why 2012 is a significant date in the development of guidelines. The Sentencing Council has produced more structured and less narrative guidelines since then. It might be helpful to look at, say, the 2016 Robbery Guideline and compare it with the previous Robbery Guideline published by the SGC a decade earlier in 2006. The robbery in a dwelling section of the 2016 Guideline has nine ?steps?, divides culpability into 3 levels and harm into three categories at Step One and each of those sections has lists containing 1-7 factors. Step 2 for the starting point and category range has a harm/culpability grid containing nine sections. There is then a full page table (p.18) with additional factors to take into account at stage 2. The 2006 Guideline deals with mitigating and aggravating factors more generically, the Tables are less complicated and there are now ?steps?. However, there are almost the same length and the factors to be covered ? though arranged very differently, are not so different. Nevertheless, you might conclude that the Guidelines published since 2012 do appear, on the face, to present a more mechanical sentencing exercise.
The discussion relating to the Chapter 2 questions, however, should alert you to the fact that there is still space for discretion in both types of guidelines.