Sentencing Essay(s) by Charlotte Mitchell-Dunn (January 2006)

(1) Describe the different aims of sentencing

In 2001 the Home office undertook a review of sentencing and the way in which it is carried out, the investigation were carried out by John Halliday and after the final report government introduced reform through Section 142 of the Criminal Justice Act within this act the government laid out six main aims of sentencing for those age 18 or over. All magistrates and judges when passing sentence will now have to consider not only sentences available but also they must also consider what the punishment is trying to achieve, by assessing the aims of sentencing. The six main aims consist of punishing a defendant or retribution, reducing crime (including the reduction through deterrence, enabling reform or rehabilitation of an offender, reparation and the incapacitation of a defendant in order to protect the public. In this essay I will describe in depth the following listed aims.

Retribution refers to the idea that every crime demands payment in the form of punishment, this aim of sentencing is often attractive to the victim as it recognises that the person whom has made the victim suffer should suffer in turn. With the severe form of retribution reflecting the saying ‘an eye for an eye or tooth for a tooth’ alternatively leading to the idea of ‘a life for a life’ sentences such as these would have been used to justify the death sentence. This aim of sentencing is very much concerned with punishment and does not look to reduce crime or to change the offender’s future behaviour making it a short term or quick-fix approach to sentencing. However this form of sentencing does offers a superficial attraction to politicians, because by offering harsher punishments politicians are able to appeal to members of the public and therefore secure more votes. In the last years of the Conservative power in office, Michael Howard the Home Secretary of the time published the white paper of 1990 with the aim of ‘Criminal justice and public protection’ the paper often made references to sentences needing to achieve ‘just deserts’ stating that a punishment should match the harm done and show society an overall disapproval of the act. However this aim of sentencing opens up a number of disadvantages as it offers the idea that logically the worse the offence is the longer the prison sentence or greater the fine or alternative sentence and this does not address the individuality of each offence and forgets to address key factors which to often intervene with sentencing. An example of this is persons being given prison sentences because they are not in the financial position to pay a fine. It is fair to assume that this is a severe aim of sentencing and would generally not be consider a priority by judges and today the modern form of retribution is found only in the form of sentencing tariffs, the idea that each offence has a set tariff.

Unlike retribution, deterrence is an aim of sentencing, which considers the reduction of crime and change in an offender’s behaviour. Deterrents can work on an individual or general level and they aim to prevent an individual re-offending through fear of harsher punishment or they are used to deter other potential offenders and send out a message to members of society, that those who offend will be punished. This generally means harsher sentence. Long prison sentences and heavy fines are also promoted in order to deter. However this aim of sentencing can be very ineffective as figure show 55% of all adult prisoners will re-offend within two years and the figures for young offender show even high percentage of re-offences. This could be put down to the fact that the policy of deterrence relies on the idea that members of the pubic consider the consequences of their actions before committing a crime. This is however not the case with the majority of offenders (based on statistics of recorded crimes) acting on impulse and worrying about the consequence once a crime has been committed. This idea was strengthened by the 1990 Government White paper, which pointed out that
‘ Deterrence is a principle with much immediate appeal…But crime is committed on impulse, given the opportunity presented by an open window or unlocked door…it is unrealistic to construct sentencing arrangements on the assumption that most offenders will weigh up the possibilities in advance and base their conduct on rational calculation.
The introduction of closed circuit televisions however has been as successful deterrent with an 83% reduction in crime within a year from the date they were introduced. The government has also had success in society deterrents with regards to drink driving and crime, which has increased over recent years. Harsh sentences are now given to those who commit drink-driving offences and there has been increased awareness to the crime.

Rehabilitation and reform are the most important factor within the aims of sentencing and both judges and magistrates when giving a sentence to a defendant often heavily consider this factor. Rehabilitation focuses on what makes a person commit a crime and aims to reform this behaviour in order to stop an offender committing a crime in the future. There are different approaches to rehabilitation either through enabling a person to see the harm they are causing or by using learning skills or training in order to curve a person’s life so they can find other ways of making a living or spending their leisure time which stop them committing criminal offences. When a court considers rehabilitation the sentence used is created to suit the individual it is an individualised sentence that is aimed at the needs of the offender. This clashes with the idea of retribution and tariff sentences therefore this leads to the idea/criticism of inconsistent sentencing as offenders who have committed exactly the same type offence may be given different sentences because of the emphasis on the individual. Rehabilitation gained a great deal of emphasis in the 60’s and 80’s however the results were thought to be extremely disappointing. In 1974 Robert Martinson an American researcher denounced rehabilitation in his paper ‘What Works’ and explained ‘nothing works’. Bottom and Preston also argued in the ‘the coming penal system’ (1980) that rehabilitation sentences were fundamentally flawed, as such sentences assume that all crime is a result of some deficiency or fault in the individual defendant when Marx would argue most crime are the fault of the state. They also argue that retribution discriminates those less advantages in society as these people are seen those who need reform whereas if a defendant is from a more privileged background it assumes it is one-off or temporary slip on their part. However due to the growth in prison population in the last few year measure have been taken to improve rehabilitation with programmes being set up over England and Wales which offer a range of courses including anger management, alcohol and drug abuse help, domestic violence and victim awareness. These courses consist of 35 sessions and are run by both prison officers and psychologists. Each course will focus on six key areas which include impulse control, learning from experience, means end testing, perspective taking, problem solving and social skills.
Attendance to these sessions becomes voluntary after 20 sessions. However the effectiveness of rehabilitation is often questioned because when prisoners are released their prospects are unattractive therefore leading them to abandon rehabilitation and turn back to crime.

Denunciation is not an aim of sentencing included in the Criminal justice Act 2003, however it is very closely connected with reparation. Denunciation is however still considered as an effective aim, which consists of showing, that society expresses a disapproval of criminal activity. This should be indicated to both the offender and to other people that society condemns this certain type of behaviour, showing that justice is not only done but it is seen to be done. Lord Denning explains ‘punishment is the way in which society expresses its denunciation of wrong doing’. This means that denunciation put into place moral boundaries of accepted conduct and is often a shaper of societies view and morals for example a majority of society now see drink driving as an unacceptable behaviour this is a result of changes in the law and the increase of harsh sentences such as prison sentences, loss of licence and heavy fines. The criminal justice Act 1991, which was based on a government White paper of 1990 explain that ‘the first objective for all sentences is the denunciation of and retribution for crime’ explaining its importance to judges and magistrates when considering a sentence.

Reparation is a sentencing aim that involves giving compensating to the victim of a crime; usually this is done by the offender whom is generally ordered to pay a sum of money to the victim to compensate them or to returning stolen property to the owner. This idea goes back before the Norman Conquest to the Anglo-Saxon courts.
Once an offender is convicted the courts are required to consider ordering compensation to the victim as well as another appropriate penalty. The idea of restitution or compensation also includes providing reparation to society as a whole. This can be fulfilled through unpaid work requirements where offenders are required to serve a set number of hours completing community projects called community punishment orders; in addition to this they may order other penalties which they consider to be appropriate. Under section 130 of the Powers of Criminal Courts (sentencing) Act 2000 courts are now under a duty to give a reason if they do not award compensation. Courts have also recently introduced project, which bring offenders and victims together in order for victims to achieve direct reparation.

The final aim of sentencing is incapacitation or the protection of the public the concept of this ensures that a punishment serves a useful purpose and benefit society as a whole. It is explained that by placing an offender in custody, they are prevented form committing further offences and therefore the public is protected. In generally terms this means giving an offender a long-term prison sentence in order to remove the danger that the offender may cause. It can also be argued that this may help the offender in some ways. Also the use of minimum sentences for persistent offenders is aimed at protecting the public from their repeated criminal acts. The ultimate form of incapacitation is obviously the death penalty and in some countries the hands of thieves are cut of to prevent them committing further crime. Controversial methods of incapacitation are also used in some states of America in which medical procedure are used in order to incapacitate sex offenders.
There are also less harsh punishments, which are still considered a incapacitating for example driving bans, exclusion orders and curfew orders. However incapacitation where highly dangerous offenders are concerned is an extremely expensive way of dealing with crime prevention and prison can also be counter productive as it can often be a place where criminals pick up on new ideas and techniques.

In conclusion it can be seen that the Criminal Justice Act 2003 has produced a number of sentencing aim which are taken into consideration by judges and magistrates when passing sentence and each of these has its merits and criticisms.

(b) Illustrate the ways in which different sentences maybe used to support different aims of sentencing.

The courts have a number of different sentences available to them and there are many different sentences passed which may often be used to support the different aims of sentencing available. Sentences can be divided into four categories; custodial sentences, community sentences, fines and discharges. Within this essay I will illustrate the ways in which different sentencing may be used to support different aims of sentencing.

Custodial sentencing is the most serious punishment that a court can impose. The terms of imprisonment are variable from weekend prison sentences to life imprisonment depending on the severity of a crime. A custodial sentence is available for offenders aged 21 years old and above. When considering a sentence the judge or magistrate will consider the seriousness of the crime committed, the maximum sentence available for that particular crime, they may also take into consideration the defendant¹s previous record or convictions. There are five types of custodial sentence mandatory and discretionary life sentences, fixed term sentences, custody plus (short term sentence),intermittent custody, suspended sentences. Prisoners generally do not serve the whole of the sentence passed by the court as most are able to apply for parole. On the whole most custodial sentence would support the aims of retribution and incapacitation. This is because prison sentences are often given in order to protect the public and infringe on a persons liberty, with a custodial sentence being seen as the harshest form of punishment within this country; however custodial sentences can support other sentencing aims in some circumstances.
Mandatory, discretionary and fixed life sentences support the sentencing aims of retribution and incapacitation, with mandatory cases requiring a minimum in most cases of 12 years imprisonment. The idea that these sentences reflect the aims of retribution and incapacitation is strengthened by the use of extended prison sentences for offenders who are harmful to the public. Under section 85 of the powers of criminal courts Act 2000 courts have the power to extend sentences for sex offenders or violent offender, however extension periods cannot exceed ten years. Sentences for sex offenders are also seen as sentences which supports the following aims however they also tend to display the sentencing aim of deterrence, when a person commits a sexual offences they are likely to lose their liberty for a long period and along side this they are on license and required to register with police so there whereabouts is know. These factors would deter people from offending, as it would be a constant factor which is likely to affect their jobs and daily life.
Short term sentences or custody plus sentences not only show the sentencing aims of incapacitation and retribution but they can also in may cases be concerned with the sentencing aim of rehabilitation in 1998 the home detention curfew was set up by the Crime and Disorder Act, this allowed suitable prisoners early release from prison on the condition that a curfew was included. This sentencing aim enables prisoners are able to keep structure in their lives and therefore this helps to prevent them re-offending. The act also cuts the prison population, therefore reducing costs.
Intermittent custody works on the basis that defendants spend weekend or other similar periods of time in prison and live their normal life during the rest of the time. It is used for prison sentences between 14 and 90 days. This sentence encourages rehabilitation as it enables a prisoner to still keep their job and life outside of prison enabling them to have consistency and preventing them re-offending. This sentence also works as a deterrent as it can be considered as very imposing on a person’s private life and in many cases can prove to be embarrassing.
Finally courts also have the power to award suspended prison sentence, these are sentences in which the sentences given does not immediately take effect. Suspended sentence can last for up to two years with the courts fixing the time. Sentence will not be served if the offender doesn¹t commit any further offences however if they do commit an offence within the time of the suspension sentence then this sentence is activated and they will serve both the original sentence and the sentence for the new offence. This form of sentence would support the aims of both deterrence and would cause denunciation, as members of the public will either realise what they have done was wrong and prevent future mistakes happening as they know the consequences of re-offending will mean they are sent straight to prison if they commit another offence, no matter how trivial. The offender may also experience denunciation because the offender in most cases will realise his/her crime has been recognised and that it won¹t be tolerated by society in the future. On the whole suspended sentences have a positive effect however they will not prove to be effective with members of society who see no wrong in committing crime and see a suspended sentence, as being let off the hook.

Sentences for young offenders also have a variety of different aims. There are a variety of custodial sentences for offenders between the ages of 18 to 20 years olds. These offenders will be detained in a centre called a young offenders institutions, in which prisoners can be held for sentences which are at a minimum of 21 days and a maximum of what is allowed for particular offence. In conjunction with this, the Crime and Disorder Act 1998 has established a new custodial sentence called a detention and training orders. This can be passed on offenders aged 12 to 21 there is a minimum requirement of the sentence being 4 months to the maximum of 24 months. Order can only be made for those under 15 if they are persistent offenders. Other sentences involving custodial sentences for young offenders include detention for serious crimes and detention at her majesty¹s pleasure. The sentence of detention of serious crimes is for very serious offences within these the courts have additional power to order offender to be detained for longer periods, this power is only available for 10 to 13 year olds if crime committed carries a sentence of 14 years for adults or an offence of an indecent assault of a woman under sec14 of sexual offences act 1956. The detention at her majesty¹s pleasure is for 10 to 17 year olds who are convicted of murder. These sentences would all support the aim of retribution as they are sentences of seemingly strong punishments
Look at these sentences it is clear to see in these cases the aim is to incapacitate and to provide retribution, this is because harsh punishments are given however the courts will consider rehabilitation and in many prisons there will be advanced programme which help offenders reform their behaviour.

The second sentence available to the court comes under the category of community sentencing. This comes in a range of different forms and has changed quite drastically since the implementation of the Criminal Justice Act 2003, prior to this act courts had individual community sentences which they could impose on an offender, they could combine some sentences sentence and add requirements. The Criminal Justice Act 2003 changed this creating one community order under which courts combine any requirement they deem to be necessary. All the previous requirements however still exist and these are then attached to a sentence. The act states that a person over the age of 16 convicted before the courts may receive one or more of the following requirement ;an unpaid work requirement ,an activity requirement, a programme requirement, a prohibition activity requirement, a curfew requirement, an exclusion requirement, a residence requirement, a mental health treatment requirement, a drug rehabilitation requirement, an alcohol treatment requirement, a supervision requirement and in the case of offender under 25 an attendance centre requirement. It is clear by looking at most of these requirement what the sentencing aim is required to do for instance in the case of drug and alcohol treatment requirements the idea is it reform and rehabilitate an offender by helping them deal with the source which causes them to offend, the same can be said for the metal health treatment requirement
Unpaid Work requirement on the other hand have a different aim of sentencing. An unpaid work requirement, requires an offender to work between 40 and 300 hours on a suitable project organised by the probation service, the number of hours will be fixed by the court and when these take place will also be considered. Typical jobs carried out on these sentences include painting local council areas and giving back to the community. This type of sentence has a number of different aims, in some case it has the sentencing aim of reparation as it requires the offender to give something back to the community in the form of work. It could however be seen as a deterrent as it would embarrassing to many people thus encouraging them not to re-offend.
Curfew orders are another form of community sentences within these sentences an offender is ordered to remain at a fixed address for between 2 and 12 hours in a 24 hour period this may be enforced by electronic tagging or there are other forms of monitoring such as spot checks. This form of sentence could be used in order to support the sentencing aim of incapacitation because in examples such as electronic their whereabouts will be known at all times it prevents to a certain extent from committing crime and also protect the public. It could be argued however that a curfew supports the sentencing aim of rehabilitation as offenders are ordered to remain at home at times when they would usually commit crime but they are still able to live within a community and therefore reintegration when the tag is removed is fairly minimal.
Exclusion orders prevent an offender going to a certain place for different period of time or different days. This ensures an offender is kept away from an area where they are likely to commit crime for example shop lifter may be banned from a shopping centre where they regularly commit crime or teenagers may be banned from an area where they would usually meet and commit crime. These orders can be applied for up to two years for offenders over the age of 16. It is clear that the main aim of exclusion orders is to incapacitate an offender and prevent them from being in an area where they would commit crime. On the other hand it could be argued that the order rehabilitates offender as it prevents many committing crime as they are prevented from being in the environment which leads them to commit crime.
Supervision order follow a similar aim as this, with the Criminal Justice Act 2003 stating that supervision acts may be imposed for the purpose of ’promoting the offenders rehabilitation‘. Supervision requires an offender to be placed under supervision of a probation officer for a period of up to three years. During this time offenders must attend appointment with a supervising officer. These meeting enable the police to monitor an offender and their whereabouts but at the same time they will offer support for the offender to help them reform their behavior.

The last two categories of sentencing include fines and discharges. Fines are most commonly used within the magistrates courts with it being the easiest way of disposing of a case. The magistrates courts can award up to a £5000 fine however there is no limit to the fines awarded in the crown court. The courts however must ensure that the fine awarded reflect the severity of the crime. They must also take into account the offenders means with this factor either reducing or increasing the amount awarded.Discharges come in two forms the first including a conditional discharge and the second being a absolute discharge. A conditional discharge means that an offender is discharged on the condition that they will commit no further offence during a set time period of up to 3 years. An absolute discharge is where no penalty is imposed. Fine meet a number of sentencing aims with the most apparent being retribution and reparation, however a fine could be seen as a deterrent as no one wants to pay out money to the courts if it can be avoided. Therefore it can be concluded that fines are enforced to punish and put off offenders from re-offending. Conditional discharges follow similar aims and they are generally used by the court to ensure a offender recognises they have committed an offence and to ensure this deters them from committing offences in the future.

In conclusion it can be seen that all sentences are in forced with an aim involved and in most case this aim is to rehabilitate or prevent crime happening again and it is only in the most extreme case where retribution is the single aim and in most case the courts will attempt to incorporate a number of different aims when sentencing an offender.

Bibliography
The English Legal System - by Jacqueline Martin
A Level and AS Level Law - 2nd edition by Martin Hunt
As Law -by Elliot and Quinn
The English Legal System the resources book- Jacqueline Martin
AS Law third edition
The English Legal System-Elliot and Quinn
Lesson materials
Short listed essay-winter term