What sentence would you give?

Watch the video above about Andrew's court case - and then take our polls on what sentence you would give him, if you were the Sheriff. See what factors might be taken into account in making the decision. Then see what sentences practising Sheriffs would give Andrew. Our case is fictitious, but realistic. 

The video starts with a sentencing statement from the Sheriff (played by an actor). This provides some background to the offence. The sentencing statement says:

“Andrew Wilson please stand. You were found guilty by a jury last month of a serious assault. This involved a planned attack where you struck your neighbour Chris Robertson on the head with a baseball bat causing severe injury after he complained about your loud music late at night. You also have a previous conviction for assault and an offence of this sort may result in a prison sentence. I therefore adjourned the case for preparation of pre-sentence reports. I have read these carefully and heard your lawyer’s submissions on your behalf this morning. This includes information on an anger management programme you have enrolled in.”

The Sheriff has said that “an offence of this sort may result in a prison sentence.” She has ordered a pre-sentence report for more information about Andrew to assist with her decision.

Let’s consider the factors in this case and then see what difference more information from the pre-sentence report might make to the sentence you give in the next poll. Let's start with the facts and circumstances in the sentencing statement provided in the video. 

A guideline on the sentencing process assists judges in deciding a sentence by setting out guidance on the process, or steps, to follow. However, this is not a rigid process, and in court judges may appear to consider relevant factors at the same time. In deciding the sentence, you first need to determine the seriousness of the offence by considering the culpability, or level of blame, of the offender and the harm caused to the victim. 

You can consider that:

• the assault was planned
• the assault was serious involving a weapon
• the assault caused a severe injury.

The victim told us that:

• the injuries were bad but are now better
• he had to take time off work when he couldn't earn a wage
• he still gets anxious about leaving the house.

You must ensure that the sentence is fair and proportionate, and that the sentence is no more severe than is necessary to achieve the appropriate purposes of sentencing in each case. You must consider what purposes the sentence should serve. In this case, it is likely that the sentence should serve a number of purposes, for example this might include, among others, punishment, protection of the public, and rehabilitation to help ensure that Andrew does not commit another offence causing further harm to the victim, or to another victim, in the future. 

After determining the seriousness of the offence, you should consider the sentencing range (which can be imprisonment or community-based) that you would select. You must then consider the factors that can make the offence more, or less, serious.

Factors that might make this offence more serious include:

• • Andrew has a previous conviction for assault

Factors that might make this offence less serious include:

• • Andrew enrolled in an anger management programme.

You must consider all these factors when deciding the purposes of the sentence. For example if you decided that the sentence should protect the public and rehabilitate the offender so that he does not cause more harm in the future, you must decide how those purposes are best served. A prison sentence would take Andrew out of the community for a period of time and may provide a prison programme to address offending behaviour.

A community sentence might mean Andrew can continue his anger management programme and work with a social worker to address his offending behaviour. You may wish to consider punishment. A prison sentence would mean Andrew loses his liberty for a period of time, while a community payback order might include (in addition to work with a social worker) up to 300 hours of unpaid work for the community, as well as a compensation payment to Chris.

If Andrew were jailed, he could lose his flat and his job, and no longer be able to provide support to anyone in his household. If he were ordered to do up to 300 hours of unpaid work, this would be on top of any paid work and could take many months to complete.

Let's consider a fuller picture. From the sentencing statement, we know that Andrew planned the assault using a baseball bat, and that the assault caused a severe injury. We also know that he already has a conviction for a previous assault. Finally, we know that he enrolled in a programme to manage a problem with anger.

During evidence at the trial, further information was also provided about Chris's injuries. The court heard that he was struck twice by Andrew. The first blow caused severe bruising and swelling to his face. The second blow caused a broken (but now healed) small finger when he raised his hand to protect his face.

The Sheriff will also take into account other facts and circumstances about the case. This will include details of Andrew's previous conviction, and information from any background reports.

In this case the Sheriff ordered a pre-sentence report. A social worker has interviewed Andrew and provided further information about him. Let's look at what difference this additional information makes to a sentence. We will look at two different possible reports for this case.

In this scenario, the report states that Andrew has a previous conviction for assaulting a different neighbour during a disagreement two years ago when aged 39. Now aged 41, he has not committed another offence since. Andrew acknowledges that he has an issue with his anger and is currently attending an anger management programme. However, he continues to blame his victim for making an official complaint against him, and has shown no remorse for the injuries he caused. He has a part-time job in construction, and shares his flat with his brother. He has no health issues. He is assessed as being of high risk of re-offending.

In this scenario, the report states that Andrew has a previous conviction for assaulting a former friend during a disagreement years ago when aged 17. Now aged 41, he has not committed another offence since. He is currently attending an anger management programme. He now accepts his guilt and has expressed remorse for the injuries he caused. He has a part-time job in construction. He shares his flat with his brother who is disabled, and Andrew is his sole carer. Andrew has a history of childhood trauma and now suffers poor mental health. The author of the social work report understands that Andrew is working hard to overcome his anger problem, and he is assessed as being of low risk of re-offending. Separate to the report, the course leader of the anger management programme has provided a supportive letter saying that Andrew is committed to addressing, and controlling, his anger, and is making real progress.

We asked practising Sheriffs what sentence they would give Andrew in each version of this case. 

Podcast

For a longer version of the interviews from our video on the sentencing process, listen to our podcast, which provides additional footage from all the contributors.