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Easton & Piper: Sentencing and Punishment 4e

Chapter 5: Guidance for end-of-chapter questions

At the end of chapter 5 you were given:

  1. Discussion questions focusing on ethical and moral issues related to sentencing on risk.
  2. A case study about Jack.

A. Discussion questions

At the end of Chapter 5 we suggested you might review the ethical and moral issues raised by the practice of sentencing for public protection, and also the justifications for a policy of selective or categorical incapacitation. To help you focus on these issues we provided a summary of the results of a recent Home Office Research Study (see below) and asked you to decide how much inaccuracy of prediction of risk can be justified on the grounds of public good.

A study of reconviction rates years after their release from long determinate prison sentences among serious sex offenders who were classified as high risk by the Parole Board, found the proportion reconvicted of another sexual offence during both follow-up periods was under 10 per cent, but those who were reconvicted had committed very serious offences (Hood et al. 2002). The figures varied according to the type of victim. None of those imprisoned for an offence against a child in their own family unit was reconvicted of a sexual or serious violent crime. Just over one-quarter of those imprisoned for a sexual offence against a child outside the family were reconvicted of another sexual offence and nearly one-third were imprisoned for a sexual or violent crime. Of those imprisoned for an offence against an adult, one in 13 was reconvicted of an offence against an adult and one in seven was imprisoned for a sexual or violent offence within six years of release from prison. All the offenders who were reconvicted of a further sexual offence within the four-year follow-up period, and all but one followed up for six years, had been identified as high risk or dangerous by at least one member of the Parole Board. Where no member of the Parole Board panel had identified a sex offender as high risk, only one was reconvicted of a sexual offence after six years.

Guidance: In answering this question you need to consider the problems which arise in making accurate predictions of risk, and given this, whether incapacitative policies may be justified in the specific example given or more generally. You might also consider whether predicting future sex offences raises problems unique to those crimes or extends to other offences. This was also an issue you also briefly considered at the end of Chapter 1.
Given the issues discussed in Chapter 5 can we be confident in making risk assessments? What are the implications of under-estimating and over-estimating risk? If we could achieve a high degree of certainty, would incapacitation on grounds of risk then be ethically acceptable? Should individuals be detained on the basis of crimes not yet committed and which may not be committed?
In incapacitative theories the individual is sacrificed for the good of the community as a whole and you may wish to consider whether this is morally justified and how the rival theories of utilitarianism and retributivism might approach this question.

B. Case scenario

You were also asked to read the following case scenario and then sentence Jack in three different ways.   

Jack and Jill lived together. Jill stopped loving Jack and left him. Jack was very angry and broke into Jill?s hairdressing salon and trashed it, causing ?25K worth of damage. He was arrested, pleaded guilty and was convicted at the Crown Court, under s 9 of the Theft Act, of burglary in a non-dwelling for which the maximum penalty is 10 years? imprisonment. The relevant Sentencing Council (SC) Guideline (2011) states that the ?starting point? for the highest level of seriousness is two years with a range from 12 months to five years.

First, sentence him under the normal retributivist framework.

Guidance: The SC Burglary Guideline (2011) states that the full range of penalties for this offence is a fine to 5 years custody but if, after considering the factors listed at Step 1, you place Jack?s offending in the highest category (greater harm and higher culpability) the starting point given at Step 2 is 2 years custody. In category 3 the starting point is a medium level community order. Therefore, you should consider the statutory factors which must aggravate seriousness and the other factors on the ?non-exhaustive list of additional factual elements providing the context of the offence and factors relating to the offender? (p 13 of the Guideline). Note that ?Theft of/damage to property causing a significant degree of loss to the victim and trauma to the victim? indicate greater harm and ?Premises or victim deliberately targeted? indicates greater culpability. This might put the offence in to the highest category of seriousness but you would first need to consider whether any of the listed mitigating factors apply. On the facts of this case it would appear that the only ?mitigation? is that relating to a guilty plea applies which is dealt with at Step 4. You would then need to decide on sentence and on the compensation order.

Secondly, sentence Jack with the knowledge that s 9 of the Theft Act is a ?specified offence? for the purposes of s224 of the Criminal Justice Act (CJA) 2003  when the intention was to cause unlawful damage in the building in question and that Jack had, some years ago, been convicted of assaulting a former girlfriend.  Do those facts make any difference to your sentence? Why?

Guidance: As this is a ?specified? offence the provisions for ?dangerous offenders? must be considered (see Chapter 5 sections 5.3 and 5.4). If you assess Jack as being a risk (see CJA 2003 s. 229) then you need to consider whether you can and should impose an extended sentence of imprisonment (s. 226A). An IPP sentence is not available for offenders convicted after 3 December 2012 and a life sentence cannot be imposed as the maximum for this offence is (only) 10 years.   You would note that ? if you sentence Jack as a dangerous offender then the custodial and/or supervised release on licence periods would almost certainly be longer than if sentenced under the normal retributivist framework.  

Thirdly, sentence Jack on the basis that his previous conviction was for an offence on the Schedule 15B list. Does that make any difference or not?

Guidance: You should first check whether Jack?s current offence is also on the new Schedule 15B. If it is you could consider the new s.224A life sentence. However, one condition for imposing this sentence is that Jack was given a life sentence with a minimum term of at least five years or a custodial sentence of at least ten years for the previous offence. The other condition is that court would otherwise be imposing a sentence of at least ten years for the current offence, and that it would not be ?unjust? to impose a life sentence under s224A. If these conditions apply then it would make a difference, especially as the ?dangerousness? condition does not apply.

Further reading

Attorney General's Reference (No.27 of 2013) [2014] EWCA Crim 334; [2014] 1 W.L.R. 4209 (CA (Crim Div))
Checklist provided in Chapter 3, section 3.2.2 of the book.
Sentencing Council (2011) Burglary Offences, Definitive Guideline, London, SC.