Summary
The following summarises the section in the draft
guideline covering General Principles.
Introduction
It is essential that there be flexibility for these
types of offence, where circumstances can vary so widely. The
sentencing ranges are not designed to be rigid, and movement between
them may occur, depending on the aggravating and mitigating factors
in each case.
Courts may sensibly suggest interventions that could
be useful, either during the custodial period or on release, as
a helpful guide for the probation service, rather than a part
of the sentence.
Seriousness
The seriousness of an offence is determined by the
culpability of the offender and the harm caused, or risked, by
the offence, including the impact on the victim (Section 143 Criminal
Justice Act (CJA) 2003). The Guideline on seriousness[4]
states that it is the relative impact of the culpability of the
offender and the actual or foreseeable harm caused to the victim
that will determine seriousness. Where there is "an imbalance
between culpability and harm", culpability will be the primary
factor.[5] (This is particularly
important in sex offences, where many perpetrators do not intend
or foresee harm.)
The Court of Appeal in Millberry and others
ruled that:
"there are, broadly, three-dimensions to consider
in assessing the gravity of an individual offence of rape. The
first is the degree of harm to the victims; the second is the
level of culpability of the offender; and the third is the level
of risk posed by the offender to society".[6]
This forms the basis for sentencing for other serious
sexual offences.
Harm
Non-consensual, coercive, or exploitative sexual
offending inevitably results in physical and/or psychological
harm; and the same applies where victims ostensibly consent, but
cannot do so in an informed way because of their youth or mental
disorder. The draft guideline lists some of the possible effects:
- Violation of sexual autonomy
- Fear or humiliation
- Shame, degradation or embarrassment
- Inability to trust, or to form relationships
in the future
- Self harm or suicide.
Culpability
The Seriousness guideline indicates that culpability
is measured in line with the intention to cause harm. Sexual offending
may be motivated by the desire to obtain sexual gratification,
financial gain, or some other objective, rather than to harm.
Nevertheless, culpability will be high where there is non-consensual,
coercive or exploitative activity, because of its inherent harmfulness.
This will be the primary factor in determining seriousness; and
harm and risk will be integral to the sentence.
The culpability of young offenders
Youth is always relevant to sentencing. In those
offences involving "ostensible consent" there are lower
maximum sentences for under 18-year-olds (five years as opposed
to 14 years for adults).
In non-consensual offences, such as rape or sexual
assaults, there are no separate provisions; but youth and immaturity
are always potential mitigating factors, in accordance with the
welfare principle set out in Section 44 (1) of the Children and
Young Person's Act 1933.[7]
A conviction for raping an under 13-year-old attracts a maximum
of life imprisonment, but where the offender is very young and
the disparity in age very small, this should be taken into account.
The "child on child" offences attract lower
maxima.[8] Some of these
will be committed to the Crown Court, as especially grave offences,
and may result in extended or indeterminate sentences in some
cases. The sentencing framework that applies to young offenders
under 18-years-old is different from that for adults. The main
features are:
- the principal aim of the youth
justice system is to prevent offending[9]
- courts imposing sentences on young people must
have regard to their welfare[10]
- where a youth pleads guilty for the first time,
courts must impose a referral order unless either an absolute
discharges or a custodial sentence is warranted
- 12, 13, or 14-year-olds may not be sentenced
to custody unless they are "persistent offenders" or
have been convicted of a "grave crime" justifying detention
for more than two years[11]
- custodial sentences are not available in the
youth court for 10 or 11-year-olds
- Detention and Training Orders (sentences imposed
by youth courts) can only be for 4/6/8/10/12/18 or 24 months
- Crown Courts may impose DTOs or detention for
a period up to the maximum.
The nature of the sexual activity
Sentences will need to reflect the precise nature
of the activity, and take account of the impact on the victim,
as well as the relationship, if any, between victim and offender.
Penetrative acts are more serious, as is partial or total nakedness
(especially that of the victim). Where the victim's ability to
consent is impaired by youth or mental incapacity, the offence
becomes more serious.
Aggravating and mitigating factors
There is a long list of general aggravating factors,
and a shorter list of mitigating factors reproduced below. More
specific factors are suggested in relation to each offence in
the individual charts in the draft guideline.
Factors indicating higher culpability:
Offence committed whilst on bail for other offences
Failure to respond to previous sentences
Offence was racially or religiously aggravated
Offence motivated by, or demonstrating, hostility
to the victim based on his or her sexual orientation (or presumed
sexual orientation)
Offence motivated by, or demonstrating, hostility
based on the victim's disability (or presumed disability)
Previous conviction(s), particularly where a pattern
of repeat offending is disclosed
Planning of an offence
An intention to commit more serious harm than actually
resulted from the offence
Offenders operating in groups or gangs
'Professional' offending
Commission of the offence for financial gain (where
this is not inherent in the offence itself)
High level of profit from the offence
An attempt to conceal or dispose of evidence
Failure to respond to warnings or concerns expressed
by others about the offender's behaviour
Offence committed whilst on licence
Offence motivated by hostility towards a minority
group, or a member or members of it
Deliberate targeting of vulnerable victim(s)
Commission of an offence while under the influence
of alcohol or drugs
Use of a weapon to frighten or injure victim
Deliberate and gratuitous violence or damage to property,
over and above what is needed to carry out the offence
Abuse of power
Abuse of a position of trust
Factors indicating a more than usually serious
degree of harm:
Multiple victims
An especially serious physical or psychological effect
on the victim, even if unintended
A sustained assault or repeated assaults on the same
victim
Victim is particularly vulnerable
Location of the offence (for example, in an isolated
place)
Offence is committed against those working in the
public sector or providing a service to the public
Presence of others e.g. relatives, especially children
or partner of the victim
Additional degradation of the victim (e.g. taking
photographs of a victim as part of a sexual offence)
In property offences, high value (including sentimental
value) of property to the victim, or substantial consequential
loss (e.g. where the theft of equipment causes serious disruption
to a victim's life or business)
Factors indicating significantly lower culpability:
A greater degree of provocation than normally expected
Mental illness or disability
Youth or age, where it affects the responsibility
of the individual defendant
The fact that the offender played only a minor role
in the offence
Personal mitigation
Section 166(1) CJA 2003 makes provision for a sentencer
to take account of any matters that 'in the opinion of the court,
are relevant in mitigation of sentence'.
When the court has formed an initial assessment of
the seriousness of the offence, then it should consider any offender
mitigation. The issue of remorse should be taken into account
at this point along with other mitigating features such as admissions
to the police in interview.
The risk of re-offending
Part 2 of the Sexual Offences Act 2003 strengthens
the system of registration of sex offenders, and introduces a
number of new orders, some of which are available on conviction,
and others by application to the magistrates' court. The arrangements
for the registration of sex offenders follow automatically on
conviction, and are not part of the sentence, although sentencers
are expected to explain the implications of the sentence in line
with their general duty to give reasons for, and explain the effects
of, sentencing.[12]
Pre-sentence reports should be prepared for any sexual
offences, as they may contain useful information about any sexually
deviant tendencies, as well as assessing the likelihood of re-offending.
Psychiatric reports may also be appropriate; and courts must ensure
that victims have been given the opportunity to make personal
statements. These are clearly in the interests of public protection,
as is effective treatment of sex offenders at the earliest opportunity.
Dangerous offenders
Most offences under the Act will be "specified"
offences, coming within the ambit of the dangerousness provisions:[13]
and thus potentially attracting discretionary life sentences,
indeterminate sentences of imprisonment of public protection,
or extended sentences. Courts will have to consider whether there
is a significant risk of serious harm in the event of further
"specified" offences being committed.[14]
(There is a list of "specified" offences at Schedule
15 CJA 2003.)
"Specified" offences which are not "serious",
but where the risk criterion is met, will result in extended sentences,
involving an extended period of licence to ensure public protection.
"Serious" offences (punishable with 10 years' imprisonment
or more) must result in life or indeterminate sentences if the
risk criterion is met.
Other orders
Schedule 1 requires the inclusion of offenders' names
on a sex offenders' register, and it follows conviction or caution
for a sexual offence involving children. [15]
It is used for risk management where individuals are thought to
pose an ongoing risk to children.
Notification orders impose a registration requirements
on offenders in the UK who have been convicted of a sexual offence
overseas.[16] These are
available on application to a magistrates' court.
Sexual offences prevention orders may be made either
at the time of sentence, or by complaint to a magistrates' court
in respect of someone already convicted of a sexual offence, where
behaviour suggests the possibility of re-offending.
Disqualification orders must be imposed on offenders
convicted of offences against children unless the court is satisfied
that further offences are unlikely. They disqualify the offender
from working with children
Courts have a duty to consider prevention or disqualification
orders when sentencing for sexual offences.
Community orders
Sex offender treatment programmes are now available
in the community as well as in prison, and where courts impose
community orders, they should also consider imposing a requirement
to attend such programmes.
Curfews and electronic monitoring may be used to
restrict offenders' movements at sensitive times, and can be combined
with the residence requirements—in approved accommodation,
for example—where behaviour and compliance can be monitored.
Financial orders
Courts should consider making confiscation orders
to recover the proceeds of crime; and deprivation orders to take
possession of property used, or intended to be used, in connection
with offending. For example, a camera or computer used to make
or store sexual material, or a car used to convey prostitutes
to their "patch". Restraint orders may be made prohibiting
offenders from dealing with any realisable property where they
are believed to have benefited from criminal conduct.
Compensation orders
Victims' views must be obtained on compensation,
as it may cause additional humiliation, degradation and distress
in the context of sexual offending. Courts should respect such
views, and acknowledge them at the time of sentencing, if appropriate.
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