Today a new sentencing guideline, ‘General Guideline: Overarching Principles’ becomes effective. Published by the Sentencing Council following a period of consultation it is to be used, ‘For sentencing offences for which there is no offence specific sentencing guideline, and for use in conjunction with offence specific sentencing guidelines.’
The guideline is to be welcomed as it includes an expanded explanation for the mitigating factor ‘sole or primary carer for dependent relatives’ which will give clarity to sentencers as to how they should consider dependent children when sentencing mothers and fathers. This is a very significant step forward, and one that was recommended by the Human Rights’ Committee in their report published on 9th September 2019. I can only hope that all other recommendations in the report are followed with such alacrity!
I have some concern that the expanded explanation is buried in a fairly detailed guideline, rather than being set out, as I’d hoped, in a separate guideline on the sentencing of primary carers. Although it is mandatory for sentencers to follow the sentencing guidelines published by the Sentencing Council my concern is that not all sentencers will be aware of the expanded explanation. My purpose in writing this summary is to bring the new guidance to the attention of sentencers, solicitors, barristers, and defendants, who may otherwise miss its importance.
The guideline sets out a 10 step sentencing process, but this summary covers steps 1 and 2 only.
‘Step 1 Reaching a provisional sentence’
Where there is no definitive sentencing guideline for the offence, the court should take account of the statutory maximum (and minimum) sentence for the offence, sentencing judgments of the Court of Appeal (Criminal Division) for the offence and definitive sentencing guidelines for analogous offences. The ‘court will be assisted by the parties in identifying the above’, therefore the burden of bringing case law to the attention of the court is placed on the advocates or defendants, if acting in person.
The seriousness of the offence it to be assessed by considering the culpability of the offender and the harm caused by the offending. The court should then consider which of the five purposes of sentencing it is seeking to achieve through the sentence. The purposes are:
- The punishment of offenders
- The reduction of crime (including its reduction by deterrence)
- The reform and rehabilitation of offenders
- The protection of the public
- The making of reparation by offenders to persons affected by their offences
Step 2 provides for the consideration of Aggravating and Mitigating factors
Additionally Step 2 provides more guidance on the imposition of fines, community orders and custodial sentences. Of particular note are the following sections which do not introduce new concepts but do set out important principles, making it clear that they are to form part of every sentencing calculus.
- ‘Community orders can fulfil all of the purposes of sentencing. In particular, they can have the effect of restricting the offender’s liberty while providing punishment in the community, rehabilitation for the offender, and/or ensuring that the offender engages in reparative activities.
- A suspended sentence MUST NOT be imposed as a more severe form of community order. A suspended sentence is a custodial sentence.
- Sentencers must consider all available disposals even when the threshold for a sentence has been passed (whether community or custodial). A fine or discharge, or community sentence, may be appropriate.
- Sentences should not necessarily escalate from one community order range to the next on each sentencing occasion. The decision as to the appropriate range of community order should be based upon the seriousness of the new offence(s).’
The guidance for sentencers on the imposition of custodial sentences is structured around four questions:
- Has the custody threshold been passed? It is only passed if the offence was so serious that neither a fine alone nor a community sentence can be justified for the offence. The guideline reiterates ‘The clear intention of the threshold test is to reserve prison as a punishment for the most serious offences.’
- Is it unavoidable that a sentence of imprisonment be imposed? The guideline states that passing the threshold test does not mean a custodial sentence is deemed inevitable. ‘Custody should not be imposed where a community order could provide sufficient restriction on an offender’s liberty (by way of punishment) while addressing the rehabilitation of the offender to prevent future crime.‘ It also states (importantly for mothers and fathers of dependent children) ‘For offenders on the cusp of custody, imprisonment should not be imposed where there would be an impact on dependants which would make a custodial sentence disproportionate to achieving the aims of sentencing.’
- What is the shortest term commensurate with the seriousness of the offence? Sentencers should be trying to minimise the length of time spent in prison.
- Can the sentence be suspended? A ‘factor indicating that it may be appropriate to suspend a custodial sentence’ is that ‘immediate custody will result in significant harmful impact upon others’.
And now we come to the bit which is possibly of the most interest to readers of this blog. Within the list of ‘Factors reducing seriousness or reflecting personal mitigation’, ‘sole or primary carer for dependent relatives’ is listed, and an expanded explanation of the factor is included. Since its first inclusion in a sentencing guideline in 2011 (‘Assault: Definitive Guideline’) until now, there has not been a clear explanation as to how this factor is to be considered within sentencing decisions, resulting in inconsistency of approach and a failure to uphold children’s rights when parents are sentenced.
In interviews with Crown Court judges (Minson, 2017), when asked to identify personal mitigation which influenced them in sentencing decisions, 50% of the judges interviewed did not mention the factor ‘sole or primary carer for dependent relatives’ or make any mention of family or dependents when answering the question. When asked to rate this factor on a scale of 1-10 (the higher the number the more weight it was likely to carry in a sentencing decision), it received the second lowest cumulative score across the ten factors on the list, and was the only factor which scored both a 1 and a 10. These answers indicated the extreme variability of judicial consideration of dependents in sentencing, and the generally low importance attached to it by the judiciary. When judges were asked directly if they thought that being the sole or primary carer for dependent children was a relevant matter in mitigation a few did not consider that it should have any impact on sentence and described it in the following terms:
‘I don’t think it’s of great significance’; ‘Usually I put it to one side’; ‘Only if there’s no one else to care for them and that’s seldom the case so no’; ‘most judges are still of the school of thinking, that family mitigation is neither here nor there.’
In the last two years, influenced by the ‘Safeguarding children when Sentencing Mothers’ training, the judiciary have taken on board the need to observe case law and existing sentencing guidelines and I think the situation has improved. However by setting out in the way that a defendant’s sole or primary caring responsibilities for dependents should be taken into account in sentencing decisions in a guideline, the rights of children within sentencing decisions are more likely to be observed.
The key elements of the expanded explanation are as follows: :
- the court should not impose a sentence of imprisonment where the impact on dependants would make a custodial sentence disproportionate to achieving the aims of sentencing
- the court should consider the impact of the sentence length on dependants and whether the sentence can be suspended
- the court should consider the effects on dependants when deciding on the requirements of community sentences
- when the defendant is a pregnant woman the relevant considerations should include the effect of a sentence of imprisonment on the woman’s health and any effect of the sentence on the unborn child.
- the court must ensure that it has all relevant information about dependant children before deciding on sentence (in accordance with the case of R v Bishop )
- the court should consider whether proper arrangements have been made for dependant children when imposing a custodial sentence, and consider adjourning sentence in such cases in order for proper plans to be in place for children
- the court should ask the National Probation Sentence to address the defendant’s caring responsibilities and the impact of any sentence on the care of their dependants in a Pre Sentence Report
There is also reference to the Equal Treatment Benchbook, and to the fact that if the sentence will be one of significant length then the impact on dependents will carry less weight, however it does not say that it is ever irrelevant.
I am hopeful that this new guideline will ensure that in every case in which a mother or father is the primary carer of dependent children, there will be full and proper consideration of the impact of any sentence on those children, and sentences will be adjusted accordingly, so that a proportionate sentence does not become disproportionate because of the effect it has on dependents.
[Below is the full text of the expanded explanation for ‘sole or primary carer of dependent relatives’:
‘This factor is particularly relevant where an offender is on the cusp of custody or where the suitability of a community order is being considered. See also the Imposition of community and custodial sentences guideline.
For offenders on the cusp of custody, imprisonment should not be imposed where there would be an impact on dependants which would make a custodial sentence disproportionate to achieving the aims of sentencing.
Where custody is unavoidable consideration of the impact on dependants may be relevant to the length of the sentence imposed and whether the sentence can be suspended.
For more serious offences where a substantial period of custody is appropriate, this factor will carry less weight.
When imposing a community sentence on an offender with primary caring responsibilities the effect on dependants must be considered in determining suitable requirements.
In addition when sentencing an offender who is pregnant relevant considerations may include:
- any effect of the sentence on the health of the offender and
- any effect of the sentence on the unborn child
The court should ensure that it has all relevant information about dependent children before deciding on sentence.
When an immediate custodial sentence is necessary, the court must consider whether proper arrangements have been made for the care of any dependent children and if necessary consider adjourning sentence for this to be done.
When considering a community or custodial sentence for an offender who has, or may have, caring responsibilities the court should ask the National Probation Service to address these issues in a PSR.
Useful information can be found in the Equal Treatment Bench Book (see in particular Chapter 6 paragraphs 94-100)’