More on Sentencing Guidelines

Sentencing guidelines exist for the majority of offences that come before the court.

The rationale for the guidelines is that a person committing an offence in Bodmin should receive the same sentence as another person committing the same offence, in identical circumstances, in Berwick-upon-Tweed.

Of course no two offences, or indeed offender personal circumstances, are ever the same, but the guidelines at least allow the court to take a considered, structured approach to its sentencing decisions. They also mean that there shouldn't be any nasty surprised when a sentence is announced.

Section 59(1) of the Sentencing Act 2020 requires that the court applies any relevant sentencing guidelines, unless it is of the view that it would be contrary to the interests of justice to do so.

In practice this means that nine times out of ten the court applies the relevant guideline, just as the legislation requires it to.

In theory the court can impose any sentence up to the statutory maximum for any particular offence, but doing so will sometimes require deviation from the guidelines.

If the court chooses to sentence outside the guidelines, then it needs to give clear reasons for its decision. If those reasons are tenuous, then the sentence imposed is liable to appeal.

In my view the guidelines are generally pretty good. However, in the last few weeks I have come across two guidelines I consider to be flawed. Below I briefly explore each of them.

The criminal damage (>£5000) Crown Court guideline:

I have become a lot more familiar with this guideline in the wake of the recent Sycamore Gap trial. The statutory maximum sentence for criminal damage is 10 years' custody (section 4(2) Criminal Damage Act 1971). However, the relevant guideline places the top of the sentencing range at only 4 years' custody. That is a big difference between guideline maximum and statutory maximum.

If the guideline was applied rigidly then there is no way anyone would ever be sentenced anywhere near the 10 year statutory maximum. In other words application of the guideline undermines the intention of Parliament, which is clearly not right.

The exposure guideline:

Exposure is an either-way offence, which can nearly always be dealt with within the sentencing powers of the Magistrates' Court. There are two elements to exposure. Firstly the offender must intentionally expose their genitals; secondly they must intend another person to be caused alarm or distress as a result.

The statutory maximum sentence for exposure is 2 years' custody (section 66(2)(b) of the Sexual Offences Act 2003). However, the relevant guideline places the top of the sentencing range at only 12 months' custody, which again is far less than that intended by Parliament.

The main problem with this guideline is the very limited circumstances in which an offence is deemed to be one of greater harm. The guideline gives only two factors indicating greater harm - the offender masturbated; or the victim was followed/pursued.

In reality, there are clearly many other factors that could indicate greater harm - e.g. an offender who brazenly shows their genitals to the whole world (e.g. trousers down, letting it all hang out, screaming "come and get a bit of this" whilst gesturing towards their nether regions) causes a lot more harm than an offender who gives a quick, surreptitious flash of their genitals beneath clothing.

Conclusion:

The Sentencing Council, which is responsible for drafting these guidelines, periodically reviews and amends them as necessary. I'm sure there are many more dubious examples out there, but given the prevalence of these offences it would be nice if the Council put these two guidelines towards the top of its "to do" list.