Sentencing is the stage of a criminal case where the court decides what penalty to impose on a convicted offender. It is not arbitrary. Courts follow a structured process set out in the Sentencing Act 2020 and guided by the definitive guidelines published by the Sentencing Council. The process ensures consistency: similar offenders committing similar offences in similar circumstances should receive similar sentences, wherever in England and Wales they are tried.

The Sentencing Council

The Sentencing Council for England and Wales was established by section 118 of the Coroners and Justice Act 2009. It replaced the earlier Sentencing Guidelines Council and the Sentencing Advisory Panel. The Council is an independent, non-departmental public body. Its members include judicial members (appointed by the Lord Chief Justice) and non-judicial members (appointed by the Lord Chancellor).

The Council's primary function is to prepare sentencing guidelines. Under section 120 of the Coroners and Justice Act 2009, every court must, in sentencing an offender, follow any sentencing guideline that is relevant to the offender's case, unless the court is satisfied that it would be contrary to the interests of justice to do so. This is a strong duty: departure must be justified, and the court must explain its reasons.

The Sentencing Guidelines Framework

Most offences have a definitive sentencing guideline published by the Sentencing Council. The guideline sets out a step-by-step process that the court follows:

Step 1: Determining the Offence Category

The court assesses the seriousness of the offence by reference to two factors: the culpability of the offender and the harm caused (or risked). Each guideline defines levels of culpability (typically A, B, and C, from highest to lowest) and categories of harm (typically 1, 2, and 3). The combination of culpability and harm produces an offence category, which determines the starting point and category range for the sentence.

Step 2: Starting Point and Category Range

Each offence category has a starting point (the sentence the court uses as a base) and a category range (the range within which the sentence will normally fall). For example, a starting point might be 2 years' custody with a range of 1 to 4 years. The starting point assumes a first-time offender convicted after trial.

Step 3: Aggravating and Mitigating Factors

The court then adjusts the sentence within (and in some cases beyond) the category range, taking into account aggravating factors that increase seriousness and mitigating factors that reduce it.

Statutory aggravating factors (which the court must treat as increasing seriousness) include:

• Previous convictions, having regard to the nature and relevance of the convictions and the time elapsed (section 65 of the Sentencing Act 2020).
• Committing the offence while on bail (section 64 of the Sentencing Act 2020).
• Hostility based on race, religion, disability, sexual orientation, or transgender identity (sections 66 to 69 of the Sentencing Act 2020).

Common non-statutory aggravating factors include: planning and premeditation, targeting of vulnerable victims, abuse of a position of trust, use of a weapon, and commission of the offence in the presence of children.

Common mitigating factors include: no previous convictions, good character, genuine remorse, mental health conditions, sole or primary carer responsibility, age (youth or old age), and the fact that the offender has cooperated with the investigation.

Guilty Plea Reduction

The court must reduce the sentence to reflect a guilty plea. Section 73 of the Sentencing Act 2020 requires the court to take into account the stage at which the offender indicated the plea and the circumstances in which it was given. The Sentencing Council's definitive guideline on guilty pleas provides that:

• A plea at the first stage of proceedings (typically the first hearing at which the defendant could have pleaded guilty) attracts a reduction of one-third.
• A plea after the first stage but before the trial date attracts a reduction of one-quarter.
• A plea on the day of trial or after the trial has begun attracts a reduction of one-tenth.

The maximum reduction is one-third. There are exceptions: where the evidence against the defendant is overwhelming, the court may reduce the discount to not less than one-fifth. The guideline reduction applies regardless of the nature of the offence.

Newton Hearings

Where the defendant pleads guilty but disputes the prosecution's version of the facts, and the dispute is material to sentencing, the court may hold a Newton hearing (named after R v Newton (1982) 77 Cr App R 13). This is a hearing without a jury in which the judge hears evidence and determines the factual basis for sentencing.

For example, if the defendant pleads guilty to assault but says the injury was accidental while the prosecution says it was deliberate, the difference could materially affect the sentence. The judge resolves the dispute by hearing evidence from both sides. If the judge finds against the defendant, the full guilty plea reduction may be reduced. If the judge finds in the defendant's favour, the sentence is based on the defendant's version of events.

Pre-Sentence Reports

Before passing a custodial or community sentence, the court will normally obtain a pre-sentence report (PSR) from the Probation Service. Section 30 of the Sentencing Act 2020 provides that a court must obtain and consider a pre-sentence report before forming an opinion about the suitability of a community or custodial sentence, unless the court considers that it is unnecessary.

A pre-sentence report assesses: the offender's background and circumstances, the nature and seriousness of the offending, the risk of further offending, the risk of harm to the public, and the suitability of available sentences. Reports may be oral (given in court) or written. Written reports are more detailed and are usual in cases involving custody or complex community orders.

Victim Personal Statements

The victim of a crime may make a victim personal statement (VPS) describing the impact of the offence on them. The court must consider the VPS when sentencing. The statement cannot directly suggest a sentence, but it informs the court about the harm caused. Where the victim chooses, the VPS may be read aloud in court.

The importance of victim personal statements was emphasised by the Victims' Code, issued under the Domestic Violence, Crime and Victims Act 2004, which entitles victims to make a statement and to have it considered by the court.

Totality Principle

Where an offender is sentenced for more than one offence, the court must consider the totality of the offending. The Sentencing Council's definitive guideline on totality requires the court to ensure that the overall sentence is just and proportionate to the totality of the offending behaviour. This may involve making sentences concurrent (to run at the same time) rather than consecutive (one after another), or adjusting individual sentences downward so that the aggregate is not disproportionate.

The Sentencing Hearing

The sentencing hearing follows a structured format. The prosecution outlines the facts of the offence and the defendant's criminal record. The defence presents a plea in mitigation, drawing the court's attention to any mitigating factors. The court considers any pre-sentence report. If a victim personal statement has been made, it is presented.

The judge or magistrate then passes sentence, explaining the reasons. Under section 52 of the Sentencing Act 2020, a court sentencing an offender must state in open court its reasons for deciding on the sentence. Where the court departs from a sentencing guideline, it must explain why.

Dangerous Offenders

Special provisions apply to offenders who are assessed as dangerous. Sections 274 to 282 of the Sentencing Act 2020 provide for extended sentences and life sentences for offenders convicted of specified offences who pose a significant risk of causing serious harm through the commission of further offences. An extended sentence comprises a custodial term and an extended licence period (of up to 5 years for violent offences and 8 years for sexual offences). A life sentence may be imposed where the offence carries a maximum of life imprisonment and the court considers that the seriousness of the offence (or of the offence and associated offences) justifies it.

Appeals Against Sentence

A defendant convicted in the Crown Court may appeal against sentence to the Court of Appeal (Criminal Division) with leave. The court may reduce, increase, or otherwise vary the sentence. The Attorney General may also refer sentences to the Court of Appeal as unduly lenient under the Criminal Justice Act 1988 (sections 35 and 36), though this power is limited to offences specified by statutory order.

From the magistrates' court, a defendant may appeal against sentence to the Crown Court as of right, where the case is reheard.

For a guide to the different types of penalty a court may impose, see Types of Penalties. For the statutes governing sentencing, see Key Legislation. For further reference, visit Penalties.uk.