Thursday Law Report: When a custodial sentence is justified

THE COURT of Appeal, in giving judgment on conjoined appeals against sentence, gave guidelines for sentencing judges when considering whether an offence was so serious as to justify only a custodial sentence.

Philip Richards (Registrar of Criminal Appeals) for Howells; Jo Collins (Registrar of Criminal Appeals) for Ashby; E.L. Whaites (Registrar of Criminal Appeals) for Glowacki; Stephen Franklin (Registrar of Criminal Appeals) for Robson and Howard; Mark van der Zwart (Registrar of Criminal Appeals) for Jervis; Martin Butterworth (Registrar of Criminal Appeals) for Marston; D. Williams (Registrar of Criminal Appeals) for Shanoor.

Lord Bingham CJ said that, although it would be dangerous and wrong for the court to lay down prescriptive rules governing the exercise of a sentencing court's judgment whether, under the provisions of sections 1 and 2 of the Criminal Justice Act 1991, justice required the passing of a custodial sentence in a particular case, nevertheless, in approaching cases which were on or near the custody threshold a court would usually find it helpful to begin by considering the nature and extent of the defendant's criminal intention and the nature and extent of any injury or damage caused to the victim.

Other things being equal, an offence which was deliberate and premeditated would usually be more serious than one which was spontaneous and unpremeditated or which involved an excessive response to provocation; an offence which inflicted personal injury or trauma, particularly if permanent, would usually be more serious than one which inflicted financial loss only.

In considering the seriousness of any offence the court might take into account any previous convictions of the offender or any failure to respond to previous sentences, and was obliged to treat it as an aggravating factor if the offence was committed while the offender was on bail. The court would have regard to an offender's admission of responsibility for the offence, particularly if reflected in a plea of guilty tendered at the earliest opportunity and accompanied by hard evidence of genuine remorse.

Where offending had been fuelled by addiction to drink or drugs, the court would be inclined to look more favourably on an offender who had already demonstrated, by taking practical steps to that end, a genuine, self-motivated determination to address his addiction. Youth and immaturity, while affording no defence, would often justify a less rigorous penalty than would be appropriate for an adult.

Some measure of leniency would ordinarily be extended to offenders of previous good character, the more so if there was evidence of positive good character as opposed to a mere absence of previous convictions. It would sometimes be appropriate to take account of family responsibilities, or of physical or mental disability.

While the court would never impose a custodial sentence unless satisfied that it was necessary to do so, there would be an even greater reluctance to impose a custodial sentence on an offender who had never before served such a sentence. Courts should always bear in mind that criminal sentences were in almost every case intended to protect the public, whether by punishing the offender or reforming him, or by deterring him and others, or by all of these things.

Courts could not and should not be unmindful of the important public dimension of criminal sentencing and the importance of maintaining public confidence in the sentencing system. Where the court was of the opinion that an offence, or the combination of an offence and one or more offences associated with it, was so serious that only a custodial sentence could be justified and that such a sentence should be passed, the sentence imposed should be no longer than was necessary to meet the penal purpose which the court had in mind.