Law Essay
Essay written by Matthew Campling January 2006.
(A) Describe the different aims of sentencing
Introduction:
Once a person is convicted of an offence, by either pleading guilty or by being found guilty by a judge or jury, the judge will impose a sentence on the offender, which will suit the crime committed, and the offender.
Different crimes have different punishments and sentences. It is up to the judge of the case to decide an appropriate sentence to impose. Judges have some restrictions on what they can impose. For example magistrates can only impose a maximum of six months imprisonment for one offence or twelve months for two and a five thousand pound fine. Magistrates have fairly limited powers when it comes to sentencing but this is due to the fact that they here mainly summary only offences and some triable either way offences which usually involve less serious crimes e.g. motoring offences. The restrictions help to stop inappropriate sentences being passed on the lesser crimes. However the Criminal Justice Act 2003 has provisions for sentencing powers of magistrates to be increased to twelve months for one offence and fifteen months maximum for two or more offences.
In the Crown Court, judges have no restrictions on what sentences they can give. Judges can give life imprisonment for some cases and there are no restrictions on the amount of the fine the judge can give. Restrictions are not imposed in the Crown Court as the Crown Court hears mainly indictable offences and also triable either way offences. Indictable offences are the more serious offences committed e.g. rape, murder and manslaughter.
Although judges in the Crown Court do not have restrictions when it comes to the sentence they can give, both the Magistrate’s Court and the Crown Court have restrictions on the minimum and maximum sentence of an offence, which are set out by Parliament. For example the maximum sentence of rape and manslaughter is life imprisonment. However the only exception is murder, which carries a mandatory life imprisonment, which means that no other sentence can be given but life imprisonment.
These factors are taken into consideration on what sentence to pass but the judge will also take into account what the courts are trying to achieve by passing the sentence i.e. what effects the sentence will have on the offender, society and other offenders. The purposes of sentencing that I have just spoken about are set out in the Criminal Justice Act 2003. The act sets out the following purposes for offenders, over eighteen years of age that the courts must take into account, which are in regard to the punishment of offenders. They are the reduction of crime e.g. deter people from committing the same offence, the reform and rehabilitation of the offender i.e. will the offender change his ways and not commit an offence again, the protection of the public i.e. keeping the public safe from the offender and the making of reparation by offenders to persons affected by their offences i.e. payment of compensation by offender to victim. These aims were described by the Home Secretary (Charles Clarke) as the three P’s and the three R’s, which are Prevention, Protection, Punishment, Reparation, Reducing Crime and Rehabilitation.
In this essay I am going to talk about the different aims of sentencing.
Retribution:
Another word for retribution is punishment. The idea of this is that if you commit a crime then you should be punished and you deserve the punishment that you get. Retribution is not to try to reduce crime nor is it to rehabilitate the offender, it is to simply punish the offender. Retribution is therefore not for society’s benefit, it is only their to punish the offender for the crime they have committed.
The basic form of retribution is seen in the saying ‘a tooth for a tooth and a life for a life.’ This saying means that if you do something wrong then you should have the same wrong done back to you. This idea of retribution was used to help justify the death penalty for the offence of murder i.e. if the offender takes someone else’s life then the offender should have their life taken away, ‘a life for a life.’ However this idea cannot be used to punish other crimes as in other crimes it is hard to distinguish between crime and punishment.
In modern days retribution is based on the idea that each offence should have a set tariff. This system of tariff sentencing means judges can only give a sentence within the tariff range. This means judges have less powers when sentencing an offender and therefore means sentences are becoming more and more uniformed. However tariff sentences do not give enough consideration for offender’s circumstances and the mitigating factors that helped contribute to the offender committing the crime.
Tariff sentences are also hard to apply in the fining system because the tariff system for fines would mean having a fixed sum as the correct fines for particular offences but this system means peoples circumstances would not be taken into account. Different amounts of money are troublesome to people with different backgrounds. For example an unemployed person will find one thousand pounds hard to pay but a millionaire would not even know it has been taken.
Denunciation:
Denunciation means the expression of society disapproving criminal offences. The sentence given to an offender should show to the offender and the general public that society will not tolerate the behaviour of an offender. It should show the public that justice is being done.
Denunciation also helps to show society’s views on a certain crime have changed with the law. For example drink driving is now seen as a very serious crime, which is down to the fact the law now imposes a prison term, fine and ban for the offence. Unlike ten years ago when it was not seen as a serious crime.
Denunciation and retribution were the two key elements of the Criminal Justice Act 1991. It stated ‘The first objective for all sentences is the denunciation of and retribution for crime.’ But in the Criminal Justice Act 2003, denunciation was not included in the purposes of sentences. This shows aims of sentencing and purposes have changed over time.
Incapacitation:
Incapacitation means to incapacitate the offender so they cannot commit the offence again. The mot extreme form of incapacitation is to give the offender the death penalty. Another form of incapacitation is to castrate a rapist or to cut off thieves’ hands so they cannot steal again. Incapacitation is used in many countries like the United States of America and the United Arab Emirates but is not used in Britain. Incapacitation does not only mean to physically decapitate an offender but other incapacitation penalties can be imposed. For example drink drivers can get a ban and therefore are incapacitated to drive. Other incapacitation orders include ASBO’s or Anti Social Behaviour Orders, which means people cannot go to certain places where they offend and also curfews, which mean offenders must stay at an address for certain times of the day and night, usually between the times of eight at night to eight in the morning.
All these things are viewed to be helping to protect the public against offenders so they are not subjected to or victims of such behaviour.
Deterrence:
Deterrence’s are there to deter people from re-offending or to stop other people from committing an offence. Deterrents come in two forms, which are individual deterrents and general deterrents. Both of these deterrents are there to reduce levels of crime.
Individual deterrents are there to deter the offender from re-offending. These deterrents can be in the form of a prison sentence, suspended sentence or a heavy fine. These deterrents are there to stop re-offending, however statistics have shown that fifty five per cent of adult offenders re-offend within two years of being released. Also in young offenders over seventy per cent who have had a custodial sentence re-offend within two years of release.
General deterrents are there to show potential offenders that society will not tolerate such behaviour of that sought and therefore if you commit the crime then you can suspect a heavy sentence imposed upon you.
But deterrents have come under criticism as deterrents are there for people to think about the consequences if they commit the crime but many crimes are done on the spur of the moment or under the influence of drugs or alcohol so offenders will not stop to think about the consequences before they commit the crime leaving deterrents useless.
Offenders who are made an example of by the courts have been less of a deterrent than the fear of being caught. More people are deterred from committing crimes, as they do not want to be caught and face the police or their family. Closed circuit television has seen an eighty three per cent reduction in crime in London, which suggests that fear of being caught, is at the forefront of people’s minds. Another criticism is of general deterrents as they rely on publicity and so people need to be aware of what was to face them if they commit a similar crime, which could be hard to get across.
Although deterrents are there to make offenders aware that if they commit the offence then they can suspect a hefty sentence, this can contradict the idea of retribution as retribution involves giving a sentence that is deserved of the crime and by giving the offender who is being made an example of a longer sentence than deserved.
Rehabilitation:
Rehabilitation means to reform the offender and rehabilitate them so they can be put back into society without the risk that the offender will re-offend or harm other members of society. Rehabilitation can be achieved by a number of ways, which include the offender seeing the error of their ways, through education, which gives them qualifications, training, which gives them key skills or by other help. Education and training are key as they give the offender qualifications and skills, which opens them up to employment, which will give them a source of income and less spare time on their hands. This helps crime levels to be reduced, as a lot of crimes are committed because the offender needs money or is bored and therefore leads them to a life of crime. Another factor that could help to rehabilitate offenders is religion.
The soul purpose of rehabilitation is to alter the offender’s behaviour so they do not commit future crimes, so this aim is forward thinking and it aims to reduce levels of crime.
Rehabilitation however has come under criticism as it can lead to inconsistency in sentencing. This is because the courts take into account the offender’s background. People from privileged backgrounds are therefore seen to be able to reform quicker and completely. People from underprivileged backgrounds are seen as less likely to be able to reform. This leads to the privileged person being given a lesser sentence than the underprivileged person. This contradicts the idea of tariff sentencing.
Persistent offenders are also seen less likely for rehabilitation as the Criminal Courts (Sentencing) Act 2000 gave judges powers to take into account the previous failures of the offender to respond to previous sentences meaning that if offenders have been put on previous schemes then they have failed to rehabilitate as they have re-offended. Therefore the offender will receive an increased sentence. Rehabilitation has also come under criticism as statistics have shown that fifty five per cent of adult offenders re-offend within two years of being released. Also in young offenders over seventy per cent who have had a custodial sentence re-offend within two years of release. This can be brought to a conclusion that rehabilitation may not work, although the percentage of those who had undertaken a rehabilitation scheme is unknown from the statistics and therefore these statistics are unreliable.
Many prisons have set up rehabilitation schemes to help rehabilitate offenders. Schemes such as tackling alcohol, drugs, domestic violence and anger issues have been implemented in prisons. But new schemes have been set up to help change the way offenders think. These schemes look at six key areas, which are impulse control, flexible thinking (learning from experience), means-end testing (predicting probable outcomes of behaviour), perspective taking (seeing other people’s points of view), problem solving and social skills. The schemes help to completely rehabilitate the way offenders behave and think. They last thirty-five sessions and are run by prison probation officers and psychologists. A similar scheme is an ‘Enhanced Thinking Skills’ course but runs for twenty sessions. These schemes are voluntary however; offenders who are serving long prison terms are unlikely to be released without having completed one.
Reparation:
Reparation means to compensate the victims or society, usually by the offender paying either a sum of money. For example the value of stolen goods, which were owned by a victim, is paid back in compensation. An offender can compensate society by doing other things, for example doing unpaid work for a community project, under the supervision of a probation officer. Offenders making direct compensation to the victim face to face can also be a form of reparation.
Under the Criminal Courts (Sentencing) Act 2000 the courts are required to give an explanation to why they have not given a compensation order.
Conclusion:
There are six main aims of sentencing, which are taken into account when a judge decides on what sentence to impose on the offender. Retribution is seen as the main aim as punishment is involved in every sentence. The courts feel if you commit the crime and you are caught then you should be punished for your actions.
A judge can use a single aim, all six aims or a combination of the six when passing a sentence. It is entirely up to the judge’s discretion, whatever he feels to be most appropriate for the crime in relation to the offender.
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(B) Illustrate the ways in which different sentences may be used to support different aims of sentencing.
Introduction:
Once a person is convicted of an offence, by either pleading guilty or by being found guilty by a judge or jury, the judge will impose a sentence on the offender, which will suit the crime committed, and the offender.
Different crimes have different punishments and sentences. It is up to the judge of the case to decide an appropriate sentence to impose. Judges have some restrictions on what they can impose. For example magistrates can only impose a maximum of six months imprisonment for one offence or twelve months for two and a five thousand pound fine. Magistrates have fairly limited powers when it comes to sentencing but this is due to the fact that they here mainly summary only offences and some triable either way offences which usually involve less serious crimes e.g. motoring offences. The restrictions help to stop inappropriate sentences being passed on the lesser crimes. However the Criminal Justice Act 2003 has provisions for sentencing powers of magistrates to be increased to twelve months for one offence and fifteen months maximum for two or more offences.
In the Crown court, judges have no restrictions on what sentences they can give. Judges can give life imprisonment for some cases and there are no restrictions on the amount of the fine the judge can give. Restrictions are not imposed in the Crown court as the Crown court hears mainly indictable offences and also triable either way offences. Indictable offences are the more serious offences committed e.g. rape, murder and manslaughter.
Although judges in the Crown court do not have restrictions when it comes to the sentence they can give, both the magistrate’s court and the Crown court have restrictions on the minimum and maximum sentence of an offence, which are set out by Parliament. For example the maximum sentence of rape and manslaughter is life imprisonment. However the only exception is murder, which carries a mandatory life imprisonment, which means that no other sentence can be given but life imprisonment.
Judges take into account the different aims of sentencing when sentencing an offender. They use several different types of sentencing to achieve the different aims of sentencing. There are four main categories, which are custodial sentences, community sentences, fines and discharges. The Judge will pass a sentence that he feels is suitable for the offender and the crime they have committed.
In this essay I am going to talk about the different types of sentences to try to achieve the different aims of sentencing.
Custodial Sentences:
Custodial sentences mean to impose a term of imprisonment on an offender. The more serious the crime, the longer the term of imprisonment the judge will impose. This is the most serious type of sentence a judge can impose on an offender and it is seen as a last resort if no other type of sentence is seen to be suitable. This is because the offender’s freedom and civil liberty are being taken away. There are also different forms of custodial sentences, which are mandatory life sentences, discretionary life sentences, fixed term sentences, custody plus a short-term sentence, intermittent custody and suspended sentences.
The main purpose of custodial sentences is retribution, although they also incorporate denunciation, incapacitation, rehabilitation and deterrence. All custodial sentences are retributive as a punishment is being given i.e. taking away the offenders freedom and civil liberty, while incapacitation is also a key part as the public is being protected from the offender as they are in prison. Denunciation is also an aim as by sending the offender to prison is shows the offender and the public that society will not tolerate such behaviour. By imposing a long prison term i.e. mandatory life sentence for murder, people can be deterred from committing murder, as they know that they will face a life sentence if caught so it may put them off committing the crime. Rehabilitation is also considered an aim of custodial sentences as they can help an offender see the error of their ways while in prison. They also can get help by attending the voluntary schemes available in prison e.g. ‘Enhanced Thinking Skills’ course. These courses I have already talked about can help to rehabilitate the offender so they are ready to be put back into society.
Different forms of custodial sentences mainly focus on one aim, for example mandatory life sentences focus solely on the aim of retribution, while intermittent sentences help to rehabilitate the offender back into society because they spend weekends or other periods out of the prison.
Community Sentences:
Community sentences are mainly used to combine a range of aims of sentencing, which are retribution, incapacitation or protection of public, rehabilitation and denunciation. A judge can impose a variety of community sentences to one offender. These orders are used to mainly help the offender rehabilitate as they are being put back into society but with restrictions. Community sentences do restrict offender’s freedom and should also be seen as a punishment (retribution).
Curfews are a type of community sentence. These orders prevent offenders from leaving an address from between two and twelve hours per day. These orders can be used for up to six months for any one offender. To prevent the offender from breaching the terms of the curfew a responsible person will check on the offender. The responsible person will visit the offender to make sure they are complying with the terms of the curfew. Also the courts may order the offender to wear an electronic tag, which sends signals to a satellite. The signals will tell the authorities if the offender is complying or breaching the terms of the curfew order.
The aims of curfews are retribution and incapacitation. A punishment is being given out as the offender has been given the order and therefore it is retributive. Incapacitation or protection of the public is used as the offender is being prevented from leaving the address from certain times and therefore they cannot affect the public with their presence. Rehabilitation can also be seen as an aim as the order means the offender can stay out of prison and therefore can be seen in the community.
Exclusion is another community order. These orders are similar to curfew orders, with the main difference that a curfew order requires the offender to stay in a specific place while an exclusion order prohibits the offender from entering a specific place. An exclusion order is also similar to an ASBO or Anti-Social Behaviour Order as the offender is prohibited from entering a specific place. Exclusion orders are aimed at incapacitation and retribution. Again retribution is seen as an aim as a punishment is being given out. The incapacitation or protection of the public is seen as the offender is being prevented from the area that they are most likely to commit the crime.
Drug treatment and testing orders, however are not seen as retribution, they are solely for the aim of rehabilitation. The offender who has abused the drugs is put under the supervision of a probation officer and they are ordered to undergo treatment for their addiction. They are also required to give drug samples so the probation officer can see if the offender is back on the drugs. The order hopes to tackle their problem and hopefully it will help them to become rehabilitated.
Probably the most common form of community sentence is unpaid work requirements. This community sentence requires the offender to work on community projects for between forty and three hundred hours. The hours are usually worked in eight-hour sessions and are often at weekends. If an offender has a special skill i.e. a footballer then the judge may order the offender to use their skill in a community project e.g. footballer will teach local school children football. Unpaid work requirements are aimed at retribution, denunciation and rehabilitation. This order shows the offender and the public that society will not tolerate such behaviour as the public can see the offender working in the community. Rehabilitation is also seen as an aim as they are still very much a part of the community and by doing a community project they might realise that they should help in the community more instead of committing offences.
Fines:
A fine can be imposed on almost any offence committed with the exception of murder, which carries a mandatory life sentence. The magistrate’s court has a maximum fine of five thousand pounds for one offence that a magistrate can impose on an offender. Although a magistrate can impose a maximum of twenty thousand pounds on businesses who have committed offences under acts of parliament. However, the Crown court has no maximum that the judge can impose on an offender, but the judge must make the amount of the fine reflect the seriousness of the crime and it must reflect the offender’s circumstances and background. For example giving an offender a one thousand pound fine to an unemployed person will be pointless as it would be hard for the offender to pay. Also if a judge imposes the same fine on a rich businessmen then they could easily pay the fine off and therefore it would not be beneficial as the offender may feel that they have gotten off lightly because it is such a small amount of money compared to their income.
Fines are used to show a combination of aims of sentencing. These are retribution, deterrence and reparation. Retribution is shown as by passing the sentence it is punishing the offender for the crime they have committed. Deterrence is shown as judges can impose a high amount for the offender to pay to show the offender and other potential offenders that if they commit the crime then they can suspect a hefty fine. This fine that would be imposed could deter offenders from committing the crime, as they would not want to be landed with the fine they would have to pay. Reparation is shown as a fine means the offender is compensating society for the crime committed. The fine, which is paid by the offender, will be used to bring in income to the court system.
Fines however, only hold short-term effects as they only affect the level of income of an offender, usually for only a short period of time.
Discharges:
There are two forms of discharges, which are absolute discharges and conditional discharges. In the case where the court feels that the offender is guilty of the crime committed but the courts do not think it is necessary to punish the offender in the set of circumstances, then the courts will give the offender one of the two discharges.
An absolute discharge is where the offender will receive no punishment for their crime and therefore they will be released. This discharge will be used when the offender has committed a crime, which is wrong in law but could not be blamed morally. The courts will accept that the offender has done wrong but the mitigating circumstances mean that a discharge is the appropriate action to take.
A conditional discharge is where the judge will discharge the offender without punishment but on certain circumstances. These conditions would mean that if the offender re-offends within a certain period of time, usually three years, then the offender will be sentenced for that crime and the previous crime that they were conditionally discharged for.
Discharges are not counted as a conviction, although if you are on a conditional discharge and you re-offend within the period of time it would count as a conviction.
Discharges aim to rehabilitate and deter offenders from committing future crimes. By giving them a discharge it shows the offender that they have been given a lifeline and therefore if they re-offend then they can find themselves in trouble and with an actual conviction to their name. This would hopefully rehabilitate the offender, as they would not want to re-offend and get into trouble.
It is also used as a deterrent as offenders on a conditional discharge will not commit another crime, as they do not want to be caught and sentenced for the present and previous crimes.
Disqualification:
A disqualification order is mainly used in motoring offences but can be used if a crime against animals is committed then the offender may be disqualified from keeping animals. These motoring offences include drink driving and having no MOT or tax on your car.
The courts can impose a set period of time for the offender to be disqualified from driving. The set time will depend on the seriousness of the crime i.e. the more serious the crime, the longer the period of time the offender ill be disqualified for. A first time offender will have to be disqualified for a minimum of twelve months, while a re-offender will receive usually a minimum of three years. As well as this an offender who uses a vehicle in another crime e.g. burglary, may also be disqualified.
Disqualification acts as incapacitation and retribution. By being given a disqualification, the courts are imposing a punishment i.e. that they cannot drive for a set period of time. But it is also used as incapacitation and the offender becomes incapacitated from driving and therefore they cannot harm the public, as they cannot drive
Young Offenders
Young offenders are defined as being under the age of twenty-one. The main aim of sentencing for young offenders is rehabilitation. The courts feel that as they are young then they are more likely to be able to be rehabilitated. Such orders, which would be imposed, include community service, supervision orders and parental orders. However, this aim can only be used for less serious offences. For example murder will be seen as retribution and therefore a custodial sentence will be imposed.
Conclusion
There are several different types of sentences that a judge can impose to achieve the different aims of sentencing. A judge can impose as many types of sentence for one crime to achieve a range of aims of sentencing. For example the courts can impose a fine, a disqualification and a custodial sentence for a driver who commits a driving offence, however it will depend on the seriousness of the crime committed to what type of sentence a judge will pass.
Most crimes are imposed with a sentence that shows the offender that they are being punished for the crime they have committed (retribution). But a lot of sentences imposed are there to represent many more of the aims of sentencing e.g. community orders show denunciation, deterrence and rehabilitation.
Bibliography
English Legal System by Jacqueline Martin
AS LAW by Elliot and Quinn