Learning Outcomes
By the end of this article, you will be able to explain the main sentencing options available in criminal cases, evaluate the impact of aggravating and mitigating factors, and understand the procedure to determine sentence. You will know how the Sentencing Council’s guidelines are applied, the meaning of concurrent and consecutive sentences, and the purpose of a Newton hearing. This groundwork will help you answer SQE2-style assessment questions on sentencing.
SQE2 Syllabus
For SQE2, you are required to understand sentencing in practical terms. Focus your revision on:
- types of sentences, including custodial, suspended, and community orders
- application and relevance of the Sentencing Council’s guidelines
- how aggravating and mitigating factors are used to determine seriousness
- the process of sentencing hearings in court, including the plea in mitigation
- how concurrent and consecutive sentences are imposed
- the procedures relating to Newton hearings for disputed facts at sentencing.
Test Your Knowledge
Attempt these questions before reading this article. If you find some difficult or cannot remember the answers, remember to look more closely at that area during your revision.
- What is the purpose of a Newton hearing, and when would one be held?
- How does the court decide whether to impose a concurrent or consecutive sentence?
- Name three statutory aggravating factors that will increase the seriousness of an offence at sentencing.
- What is the difference between a custodial sentence and a suspended sentence?
Introduction
Once a defendant is convicted or pleads guilty, the criminal court must impose a sentence. The court follows the Sentencing Council guidelines, considers the seriousness of the offence, and takes into account both aggravating and mitigating factors. Understanding the main types of sentences, the impact of those factors, and the core procedures is critical for SQE2.
Sentencing Guidelines and Purposes
Most criminal sentencing follows the Sentencing Council’s guidelines. Courts must use these guidelines unless the interests of justice strongly require another approach.
Key Term: Sentencing Council guidelines
Guidance issued to ensure sentences for similar cases are consistent, fair, and proportionate. Courts must apply the guidelines, departing only if the interests of justice require it.
The five statutory purposes of sentencing (for adults) are:
- punishment of offenders
- reduction of crime (including its reduction by deterrence)
- reform and rehabilitation
- protection of the public
- making reparation to victims or society
Seriousness is always the starting point, judged by assessing the offender’s culpability and the harm caused or intended.
Key Term: aggravating factor
A circumstance that increases the seriousness of the offence or the culpability of the offender and typically leads to a more severe sentence.Key Term: mitigating factor
A circumstance that reduces the seriousness of the offence or the culpability of the offender and may justify a lesser sentence.
Worked Example 1.1
Ravi is convicted of burglary. He has multiple previous convictions for similar offences, and the latest offence was committed while he was on bail. The burglary was not premeditated, and he has shown genuine remorse.
Answer:
The statutory aggravating factors here—previous convictions for similar matters and committing the offence on bail—will increase the seriousness of his sentence. However, mitigation from remorse and lack of planning must also be considered, potentially reducing his sentence. Overall, the presence of strong aggravating factors makes a custodial or suspended sentence likely.
Types of Sentences
The main types of sentences available to the courts are:
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Custodial sentences: The most severe, these involve the deprivation of liberty.
- The court must not pass a custodial sentence unless the offence is so serious that a fine or community order is insufficient.
- Where imposed, the court must explain the length of sentence and the reasons for it.
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Suspended sentences: A custodial sentence may be suspended (for between 14 days and 2 years, usually), allowing the offender to remain in the community subject to conditions. If the offender breaches the conditions, or offends again, the custodial sentence will usually be activated.
Key Term: suspended sentence
A custodial sentence that is not activated immediately, permitting the offender to remain in the community subject to meeting conditions for an operational period.
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Community orders: May include unpaid work, curfew, or rehabilitation requirements. Community orders must only be imposed if the offence is “serious enough” to justify such a sentence.
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Fines and discharges: For less serious offences, the court may fine the offender or (rarely) give an absolute or conditional discharge.
Aggravating and Mitigating Factors
The Sentencing Council’s guidelines set out both statutory and non-statutory factors.
Examples of aggravating factors:
- previous convictions of a similar nature
- offences committed while on bail or under court order
- high level of harm or targeting of vulnerable victims
- evidence of planning
Mitigating factors may include:
- genuine remorse
- lack of premeditation
- young age or immaturity of the offender
- steps taken to repair harm (e.g., voluntary compensation)
The judge or magistrates will balance all factors and provide reasons for the chosen sentence.
Key Term: plea in mitigation
A statement made by the defence advocate immediately before sentencing, putting forward facts and arguments to reduce the severity of the sentence.
Worked Example 1.2
Faye is convicted of assault occasioning actual bodily harm. She is 22, with no previous convictions, and handed herself in to police the next day. She acted in response to sustained provocation.
Answer:
Mitigation includes her clean record, voluntary surrender, and provocation. These could justify a non-custodial sentence, such as a community order, unless there are strong aggravating factors.
Exam Warning
Plea in mitigation must be based on evidence and never mislead the court. Providing false or exaggerated mitigation can detract from your client’s credibility and may risk professional misconduct.
Concurrent, Consecutive, and Totality Principle
Where there are multiple offences, the court must decide how the sentences will operate:
- Concurrent sentences: Applied when several offences arise out of the same incident or are similar. All sentences are served at the same time.
- Consecutive sentences: Applied where offences are unrelated or separate in time, so one sentence begins after another has finished.
- Courts must consider the “totality principle”—the overall sentence should be just and proportionate.
Key Term: totality principle
The requirement that the total sentence for multiple offences must be fair and not excessive in relation to the overall criminal behaviour.
Worked Example 1.3
Sasha is convicted on the same day of three counts of shoplifting on different dates. She is sentenced to 4 weeks’ custody for each.
Answer:
Because these were separate incidents, consecutive sentences could be imposed, resulting in a total sentence of 12 weeks. Applying the totality principle, the court must consider whether the total sentence is just; if the offences are similar and none was especially serious, concurrent sentences may be appropriate.
Reductions for Guilty Plea
An early guilty plea will usually reduce the sentence. The maximum discount is one third if the plea is indicated at the first stage of proceedings (e.g., at the first hearing in the magistrates’ court). The later the plea, the lower the reduction. No reduction is given for sentences where only non-punitive elements are imposed, such as compensation orders.
Ancillary Orders
Courts may impose additional orders alongside the main sentence. These can include restraining orders, compensation, or disqualification from driving.
Newton Hearings
Where the defendant pleads guilty but there is a factual dispute affecting the sentence (e.g., what harm was caused), a “Newton hearing” may be held. The prosecution and defence call evidence, and the court determines the disputed facts on the balance of probabilities before sentencing.
Key Term: Newton hearing
A procedure where, after a guilty plea, the court resolves a factual dispute impacting the sentence by hearing evidence from both sides.
Worked Example 1.4
A defendant admits to causing injury but disputes using a weapon, which would make the offence much more serious. The prosecution allege a weapon was used.
Answer:
If a factual dispute remains after a guilty plea, the court should hold a Newton hearing to decide whether the weapon was used. The outcome may significantly affect the sentence.
Revision Tip
For SQE2, be able to apply the step-by-step process of sentencing, including identifying aggravating/mitigating factors, thinking through community/custody thresholds, and advising on likely appeal grounds after sentencing.
Key Point Checklist
This article has covered the following key knowledge points:
- Sentencing follows the Sentencing Council guidelines, applying them in all routine cases.
- The seriousness of an offence is increased by aggravating factors and reduced by mitigation.
- Courts can impose custodial, suspended, community, or financial sentences based on the facts and circumstances.
- Sentences for multiple offences may be concurrent or consecutive; the totality principle ensures the final outcome is just.
- Early guilty pleas earn a reduction in sentence; later pleas earn a smaller reduction.
- Newton hearings resolve factual disputes at sentencing after a guilty plea.
Key Terms and Concepts
- Sentencing Council guidelines
- aggravating factor
- mitigating factor
- suspended sentence
- plea in mitigation
- totality principle
- Newton hearing