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Easton & Piper: Sentencing and Punishment 4e

Chapter 7: Guidance for end-of-chapter questions

At the end of chapter 7 you were given:

  • Discussion questions focusing problematic issues around mitigation and sentence impact. 
  • A sentencing case study about Zack. 

A. Discussion questions

You were given the following scenario:

Amy is a mother with four children under 10 years of age. The children?s father, Ben, has been in prison for two years. Amy has several convictions for theft, all preceding the period in which she went to live with Ben and had her children. Amy got into severe financial difficulties two years ago and agreed to deliver packages of drugs, on a regular basis, to distributers. By the time she was caught she had delivered a very large quantity of a Class B drug. She pleaded guilty shortly after her arrest to a charge of possession with intent to supply under the Misuse of Drugs Act 1971, s 5(3) although she insisted that she had been led to believe the drugs were only ketamine (Class C). She received a sentence of 18 months.
Ben?s family have always rejected her; her own family consists of an ill and elderly mother and a sister who has two children. No one offers to look after her children and she agrees that they be voluntarily accommodated by the local authority. A recent review by the local authority noted the children?s distress in their new homes (they cannot all be accommodated in the same foster family). Amy appeals her sentence.

You were then asked to think about the following questions:

  • How might it be possible?if at all?for the Court of Appeal to justify a decision to substitute a community order for Amy?s custodial sentence?

Guidance  

The Court of Appeal might refer to the Mills (2000) case to take into account the fact that Amy is the sole caregiver and is more likely than a male prisoner to be allocated to a prison a long distance away from her children. However, the Court will first assess the seriousness of Amy's offending - the harm done and her culpability - and may well decide that her offending was too serious for the Court to be able to take account of mitigation. On the other hand, the court may consider earlier appeal cases where the offender's family circumstances had been dire and the effect on the children had been excessive and substitute a lesser sentence.

If Amy was sentenced after 27 February 2012 the latest Drug Offences Guideline applies. For this offence - where the maximum is 14 years - the penalty range is given as a fine to 10 years custody for Class B drugs. The chart on p.11 of the Guideline would suggest that Amy?s culpability is at the lowest level as she had ?a lesser role?. To determine the category for harm would require information as to the exact quantity of the drug in her possession. For Class B drugs, the starting point for a ?lesser role? is custody in the higher 2 of the 4 categories (1 and 2) and a community order in categories 3 and 4.  The factors reducing seriousness and mitigating the sentence include ?Mistaken belief of the offender regarding the type of drug? and ?Involvement due to pressure, intimidation or coercion falling short of duress? and so there is an arguable case for reducing Amy?s sentence.

You might note, however, that if the courts uphold a custodial sentence they are apparently more likely to impose a suspended sentence with a supervision requirement than a community sentence if they are minded to avoid an immediate custodial sentence: 'The sentencing data suggest that the use of immediate custody for indictable offences committed by women has remained at a constant rate (17 per cent of sentences) and that the growth of the Suspended Sentence Order has been at the expense of the Community Order and the fine' (Patel and Stanley 2008: 35). Having said that, according to the SC?s Analysis and Research Bulletin, ?In 2009, the most common outcome received by adults sentenced for drug offences was a fine. 20% of adults were sentenced to a community order whilst 18 % of adults sentenced were sent to prison? (Sentencing Council 2012: 3) although 39% of Class B supply offences resulted in an immediate prison sentence (ibid: 10). 

  • What solutions to this type of situation?other than at the sentencing stage?can you suggest?

Guidance

Here you might consider ways in which family bonds can be supported within prison, for example with extended family visits, more financial support for visits and by allocation to a prison near her home as well as possible release on temporary licence to deal with family problems.

  • If Amy?s offences has involved supplying drugs to local teenagers would your attitudes and responses be different? Why/why not?

Guidance

The SC Guideline, at Step 2 has the following as factors aggravating the seriousness of the offending:

Offender 18 or over supplies or offers to supply a drug on, or in the vicinity of, school premises either when school in use as such or at a time between one hour before and one hour after they are to be used
Targeting of any premises intended to locate vulnerable individuals or supply to such individuals and/or supply to those under 18
Presence of others, especially children and/or non-users
(Sentencing Council 2012: 14).

This reflects public concern regarding children taking drugs and could easily justify a different response. 

  • Consider the situation of the victims. If Amy?s offences had, instead, been a series of thefts from elderly neighbours do you think they would have access to adequate support and ?remedies?? 

Guidance

You might consider the victims? entitlements set out in the latest Code of Practice for Victims of Crime (2013) ? see section 7.1.2 of Chapter 7 ? and assess the extent to which the listed entitlements would provide helpful support. You might also consider whether the elderly neighbours could access them or ensure they were implemented. You could also discuss the use of compensation orders and the limitations of that remedy (see section 7.2.3 of Chapter 7).

Further reading

Jacobson, Kirby, and Hough (2011) Public Attitudes to the Sentencing of Drug Offences. London, Office of the Sentencing Council.
Sentencing Council (2012) Drug Offences: Definitive Guideline. London, Office of the Sentencing Council.
Sentencing Council (2012) Drug Offences: Analysis and Research Bulletin. London, Office of the Sentencing Council.
Sentencing Council (2015) Theft Offences, Definitive Guideline. London, Sentencing Council.

B. Case study

At the end of Chapter 7 we provided a sentencing exercise which draws on the material in Chapter 5 (particularly section 5.4) and Chapter 6 (section 6.4) as well as on the themes discussed in this chapter. It brings together difficult questions relating to proportionality, dangerousness, mentally disordered offenders, and personal mitigation.  You were asked to take the role of Zack?s solicitor and to explain to him what options would be open to the Magistrates? Court at the sentencing hearing (including referral to the Crown Court for sentencing) and what the judge was most likely to decide.

The facts of the case are as follows:

Zack is 38 years old and has suffered from mild schizophrenia for almost 20 years. Three years ago he spent a month in hospital for psychiatric treatment to establish a new medication regime. His condition has since been stable and he works as a labourer. He has always lived with his mother who is now elderly and infirm and depends on him for her shopping, laundry, and meals.

When doing building work over a period of time in a family home Zack made friends with Yasmin, the 7 year old daughter of the family, and persuaded her to let him take several photos of her, in particular poses, when she was undressing. He told her to keep the ?photo shoot? as their little secret but Yasmin was excited, thinking she could become a model when she grew up, so she told her parents about the photos. They contacted the police and the photos were found on the computer in Zack?s house. The computer provided evidence that he had copied the photos to three friends.

Zack pleaded guilty at the Magistrates? Court to a charge of taking and distributing indecent photographs of a child (section 1 of the Protection of Children Act 1978). The maximum penalty for this offence on indictment is 10 years and it is a specified offence listed in Schedule 15 para 99 of the CJA 2003 (and also listed in Schedule 15B which was inserted by LASPO 2012 and available for convictions on or after 3rd December 2012). The photos were referred to COPINE (Combating Paedophile Information Networks in Europe) which graded the images as being of the lowest category of obscenity. Zack has two previous convictions (for being drunk and disorderly and for theft in breach of trust) for which he received a fine and a short custodial sentence respectively.

Guidance  

You should explain that the normal sentencing framework is based on seriousness and proportionality but that his offence is a an offence listed in Schedule 15 of the Criminal Justice Act 2003 so it is a ?specified offence? for the purposes of the provisions for ?dangerous offenders? in the CJA 2003. Therefore the judge must consider whether the criteria are met for any of the orders available and whether such sentences are mandatory. When the 3rd Ed was written the IPP sentence was available but because of changes made by legislation in 2008 and 2012 and since brought into force the IPP sentence is not available for anyone convicted on or since 3rd Dec 2012.

In relation to the current law you should, therefore, explain the import of the criteria for the life sentence under s225 and the new indeterminate sentence under s224A as well as the extended sentence in s226A, the distinction between serious specified offences and other specified offences, and the statutory guidance in s229 and in case law on assessing risk of future harm to the public. If you do not think that Zack is a risk you cannot consider s225 or s226A orders but you can consider a s224A order. If you consider Zack to be a risk you will note that, although Zack?s offence is a ?serious? specified offence in relation to s225, he could not be given a s225 life sentence because his offence does not carry a maximum sentence of life imprisonment. You can consider a s224A sentence because Zack?s offence is listed in Schedule 15B but his previous offence was not a Schedule 15B offence so he does not fulfil the ?sentence condition?. You should then look at the extended sentence and will note that condition B might be met.

So whether you are considering condition B or you have decided that Zack is not a risk, you will need to use the just deserts sentencing framework (to determine whether condition B applies or to set a proportionate sentence). So you need to apply to the facts of the case the aggravating and mitigating factors listed in the latest guideline. When the 3rd Edition of this text was published the guideline was that of the Sentencing Guidelines Council (SGC 2007: 113-14) but a revised guideline has been in effect since 1st April 2014 (SC 2014: 75-79). That gives the sentencing range as being from a community order to 9 years? custody but, in line with more recent guidelines, sets out a two-step process for determining offence category by seriousness. It notes at Step One that ?the intrinsic character of the most serious of the offending images will initially determine the appropriate category?, with Category A being for the most serious images and Category C being the least. At Step Two starting points and sentencing ranges are given for the 3 categories in relation to possession, distribution and production of images. There are then lists of aggravating and mitigating factors to allow movement up or down from the starting point (e.g. vulnerable victim, breach of trust, child known to the offender, previous convictions) and any mitigation relating to the offending or the offender (health).

You will probably conclude that the offending falls within Category C but should also consider Category B. The sentencing range for Category C for possession is medium level community order to 26 weeks? custody and for distribution is high medium level community order to 26 weeks? custody. Only for production does the range extend to 4 years so you may argue that a 4 year sentence is not applicable and therefore a s226A sentence is not possible. You may decide that the very small number of photos and distribution, together with Zack?s health problems and the dependent mother would mitigate this down to a community sentence or you might consider whether his offending surmounts the custody threshold. You should also note Zack?s registration on the Sex Offenders Register.

You were also asked whether your answer would be any different if Zack was, at the time of conviction, still attending regular out-patient appointments at the local hospital?s mental health unit.

Guidance

Explain to Zack whether the provisions of the Mental Health Act (MHA) 1983 might apply to his situation and whether the court would have to use such provisions. (See Chapter 6 section 6.4.3.) You would also need to explain to Zack what the judge might do if he came to the conclusion that he should use the orders provided for in the MHA 1983 Part III (rather than punitive sanctions). If Zack is not treated as mentally disordered and if the court decides that a community order is appropriate then a mental health treatment requirement might be added.

Further reading

Sentencing Council (2014) Sexual Offences, Definitive Guideline, London, Sentencing Council.
SGC (2008, updated 2014) Magistrates Courts Sentencing Guideline, Definitive Guideline: on-line version available at http://www.sentencingcouncil.org.uk/offences/item/possession-of-indecent-photograph-of-child-indecent-photographs-of-children/.