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Easton & Piper: Sentencing and Punishment 4e

Chapter 6: Guidance for end-of-chapter questions

At the end of Chapter 6 you were asked to reflect on the three issues covered:

  1. A colour association test about reparation
  2. A discussion question and a case study about approaches to children and young people who offend
  3. A discussion question and a case study focusing on the mentally disordered offender.
A. Reparation exercise

You were asked to decide what colour you think of when focusing on the word ?reparation? without taking time to think in any conscious or considered way. We said that you might wish to consider what parts of section 6.2 of Chapter 6 most influenced your response or, if you completed this exercise when you first started reading Chapter 6, you might wish to note whether your ideas had changed. We provided some comments on the exercise at the end of Chapter 6 and here are some more.

In our experience, students have responded with a range of colours that they associate with reparation. Some have thought of green; 'explained' afterwards as having connotations of spring and new growth. Subconsciously, these students may have conceptualized reparation as a process that allows participants to experience positive new beginnings. Other students have thought of red, perhaps, they suggest, because of associations with 'being in the red' and notions of the paying back of a debt, or giving what is due to another. Others, possibly because of the same association with debts repaid, 'saw' reparation as black, though this may also have signified loss and punishment. Yellow and blue have been other associations, stemming, it was believed, from notions of brighter, new, 'blue skies' ways of dealing with, and thinking, about offending. Purple - perhaps a more considered option - mixed the red of punishment with the blue of harmony and reconciliation. This wide range contrasts with the unanimity of responses when asked what colour is associated with 'dangerousness' in sentencing, when the response is nearly always red or black, with connotations of blood, danger notices or dark, threatening situations.

Thinking about reparation, and making amends more generally, in this way emphasizes the disparate theoretical bases for those reparative options available at, or instead of, the sentencing stage of the criminal process. Whilst restorative justice may be the obvious justification for such options, some, as Chapter 6 notes, have not been so theorised. Further, there are the older forms of reparation which we discuss in Chapter 7 (section 7.2) and most restorative and reparative options still remain alongside or within a largely retributivist system.

B. Young offenders

You were asked to debate the following statement about youth cautions: ?The benefits of the current system of youth cautions and youth conditional cautions outweigh the disadvantages??

Guidance

You might consider the benefits of youth cautions and youth conditional cautions (YCCs) to be the following:

  • the system has a statutory basis: cautions were introduced by LASPO 2012 and the criteria for youth cautions were amended by the same Act.
  • police powers to impose both forms of caution are regulated by detailed guidance
  • young offenders must be referred to the youth offending team (YOT) for assessment and the YCC must be accompanied by supportive and preventative programmes as specified in the conditions. .
  • children and young people are diverted from the courts and prosecution.

On the other hand you should consider the research on the effectiveness of rehabilitative programmes, and the concerns of those who fear that the more invasive intervention of a YCC (including a financial penalty and attendance for up to 20 hours at a specified programme or activity) might 'label' children and confirm them in a pattern of offending rather than ?reform?. You might also consider the fact that failure to comply with any of the conditions attached to the YCC may result in the offender being prosecuted for the offence.  Other issues to consider might focus on ?net-widening? ? that such diversionary options might instead draw more young people in to the youth justice system -  and ?injustice by geography?  - that programmes are not uniformly available in all areas.

You were provided with a sentencing exercise: 

Ade, a student aged 20, worked on Saturdays in the local newsagents until the proprietor?Mr B?cut down on part-time staff. Because she knew about a dodgy window catch she broke into the shop one night and took several boxes of crisps and chocolate. She sold these to a local youth club for ?50 (having been asked to get new supplies), saying that she had lost the till receipt. At the local magistrates? court she was found guilty of burglary. She has no previous convictions.

You were asked to decide what outcome was most appropriate for Ade in the scenario above.
You were also asked whether:

  • your answer would be different if Ade had worked in an electronics factory and had stolen goods worth ?5,000?
  • there are any restorative justice options that the police and CPS could have used instead of prosecution? 

Guidance

The normal 'just deserts' approach to sentencing Ade applies here as there is no indication that the Mental Health Act 1983 options or the special provisions for 'dangerous offenders' apply. Further, as this is Ade's first burglary offence and is not in relation to a domestic property the 'three strikes' provision in the PCCSA 200 section 111 does not apply. You need to know that the maximum penalty for the offence of burglary of non-residential premises is 10 years but that the sentencing powers of the Magistrates' Courts are limited to Level 5 fine and/or 26 weeks? custody in relation to this offence.

In category 3 ? the lowest level of seriousness for this offence in the latest Guideline (Sentencing Council 2011) - the starting point is a medium level community order but the range is a band B fine (see Chapter 10) to 18 weeks custody. You need to consider the relevant mitigating and aggravating factors. Whilst there is an element of breach of trust, the amount taken was small and the planning minimal. There are also no previous convictions and Ade is relatively young.  You might therefore consider a fine to be appropriate. You could also impose a community order with a suitable requirement (see Chapter 10) if you believed that the offence was serious enough to warrant such a sentence but that is unlikely. You should also impose a compensation order and, if Ade does not have the resources to pay both the fine and the compensation order the fine could be omitted.  

If Ade had worked in an electronics factory and had stolen goods worth ?5,000 then the offence would be treated as more serious because of the amount taken. The magistrates could consider the options open to them in the requirements that can be added to a community order if they considered the offence to be serious enough to justify such a sentence (CJA 2003 section 147-8 and 177). They might select an unpaid work requirement or an attendance centre requirement. If they considered the offence was not sufficiently serious for a community sentence they would impose a fine. Whatever they decide they MUST impose a compensation order or give reasons why they are not doing so. In this case the compensation would be for the amount taken and for any damage done in entering the property. In relation to theft of goods worth ?5,000 the difficulty would be - if they could not be recovered because Ade had sold them at a fraction of their value - the calculation of a compensation order that Ade could realistically pay over a period of 12, or exceptionally 24, months.

Options short of prosecution which can include restorative measures and which were mentioned in Chapter 6 are the following:

  • A community resolution - a non- statutory informal action - which can include restorative justice components.
  • Youth cautions ? restorative or other activities can be added to a youth caution but participation is voluntary.
  • YCC (youth conditional caution) - the youth offending team is involved with the police in setting the conditions which can include restorative measures.  Restorative justice processes and initiatives - for example a restorative conference - may be used to help inform the decision as to the conditions to be attached to a YCC.Mentally disordered offenders

C. Mentally disordered offenders

Statement for discussion:

You were asked to read the following statement and decide whether you think the reason given is the main reason:

?There is an established policy of diversion of mentally disordered offenders from prison and yet there is a much higher incidence of mental illness in the prison population than in the general population. The reason is that the orders in Part III of the Mental Health Act 1983 are not fit for purpose.? 

Guidance

It might be helpful to review the policy of diversion and provide a summary of the orders in Part III and, in particular, the criteria for imposing a hospital order under s37 of the MHA 1983; good students will also refer to the other orders in Part III. You might then discuss the legal difficulties of using the provisions in practice, notably the need to determine whether doctors believe imposing a hospital order is ?appropriate? and the courts that it is the ?most suitable? option, and that a hospital bed is available.  You should balance this material against the other possible reasons for the under-use of hospital orders. Such reasons might include the attitude of judges and the influence of public opinion, the lack of clear rationales for diversion at the sentencing stage, and the lack of resources. You would then decide where the weight of evidence lies.

Case study

You were referred to the sentencing exercise about Zack at the end of Chapter 7 (section 7.5.3) because that is also relevant to this issue: see the end-of-chapter guidance for Chapter 7.