How do courts arrive at a sentencing decision?
The High Court of Justiciary has approved the Sentencing Process guideline. This guideline, for the first time in Scotland, sets out steps which courts should follow in order to reach a sentencing decision, including some of the factors which may be taken into account. This guideline will promote a consistent approach to the process of sentencing in Scotland’s courts, and will enhance understanding of that process.
The Sentencing Process
Arriving at the headline sentence (steps 1-4)
The first step in sentencing is an assessment of the nature and seriousness of the offence.
The seriousness of an offence is determined by two things: the culpability of the offender and the harm caused, or which might have been caused, by the offence. As either or both culpability and harm increase, so may the seriousness of the offence.
The assessment of seriousness is a key factor in deciding the appropriate type of sentence (for example, whether to impose a fine, a community payback order, or a custodial sentence). It is also important in deciding the level of sentence to be imposed (for example, the amount of any fine, the requirements to be included in a community payback order, or the length of a custodial sentence).
In assessing the seriousness of a particular offence, the court should also refer to any applicable sentencing guideline which lists any factors relevant to the consideration of culpability and harm.
The court should next select the sentencing range. This is the range of sentences within which the appropriate headline sentence for the offence appears to fall, having regard to the assessment of seriousness at step 1. If there is a sentencing guideline which applies to the offence before the court it may offer further guidance on how to select the sentencing range, and should be consulted at this point.
The court should also have regard to the following:
1) any relevant guideline judgments
2) any statutory provision relevant to the offence, including any maximum and minimum sentence, and
3) any statutory provision applicable to the sentencing of the offender, including the presumptions against:
passing a sentence of imprisonment on a person aged 21 or over who has not previously been sentenced to imprisonment or detention
imposing custodial sentences of under 12 months, and
passing a sentence of detention on a person aged under 21
Aggravating factors are facts and circumstances which may make the offence more serious for sentencing purposes. Mitigating factors, including factors personal to the offender, may lead to a less severe sentence being imposed.
Cases may have both aggravating and mitigating factors. Whether any factor has an aggravating or mitigating effect will depend on all of the circumstances of the case. Some aggravating factors can be integral features of certain offences. In such cases, the court will already have reflected this in assessing seriousness at step 1, and they should not be used as a reason for further increasing the sentence.
Having completed steps 1, 2, and 3, the court should select the headline sentence. This is the sentence which is appropriate for the offence after consideration of all of the matters contained in steps 1-3 of this guideline, but before any adjustment as a result of steps 5-7 of this guideline.
When determining the headline sentence the court should have regard to the Council’s guideline ‘Principles and purposes of sentencing’, in particular to the purpose or purposes the sentence is intended to achieve. The purposes of a sentence may include, in no order of priority: protection of the public; punishment; rehabilitation of offenders; giving the offender the opportunity to make amends; and expressing disapproval of offending behaviour. The court should also have regard to any statutory provisions relating to the specific offence for which the offender is being sentenced.
Other considerations (steps 5-7)
This step applies where the offender has pled guilty to the offence or offences for which they are being sentenced.
In these circumstances section 196 of the Criminal Procedure (Scotland) Act 1995 provides that the court must take into account the stage in the proceedings at which, and the circumstances in which, the offender indicated their intention to plead guilty.
The effect of this is that where an offender has pled guilty a court will consider reducing the sentence to be imposed, applying what is known as a ‘discount’ to the headline sentence.
This step applies only where:
the court is imposing a custodial sentence (a sentence of imprisonment or detention), and
any of the circumstances in section 210 of the Criminal Procedure (Scotland) Act 1995 apply: most commonly that the offender was in custody on remand awaiting trial or sentence.
In these circumstances the court must, in deciding on the length and commencement date of the custodial sentence, have regard to the period of time spent in custody.
Ancillary orders are orders which are imposed by the court in addition to a sentence or, in some instances, as an alternative to the sentence which the court could have imposed.
Some ancillary orders are mandatory and other ancillary orders are discretionary, depending on the circumstances of the case.
At the end of the process set out in steps 1 - 7 the court will have decided on the sentence to be imposed.
The court should always be satisfied that the overall sentence, taken together with any ancillary order to be imposed, is fair and proportionate.
When imposing the sentence the court should, as provided in the Council’s guideline ‘Principles and purposes of sentencing’, set out the reasons for its decision as clearly and openly as circumstances permit.
The court must also state its reasons if it decides not to follow, or departs from, an applicable sentencing guideline