PastPaperHero | Procedures and processes in criminal litigation

Learning Outcomes

This article covers the procedures and processes in criminal sentencing for SQE2, including:

The role and application of the Sentencing Council’s guidelines and the statutory purposes of sentencing
Assessing seriousness through culpability and harm, and meeting custody and community thresholds
The main sentencing options: custodial, suspended, community orders, fines and discharges
Aggravating and mitigating factors (statutory and non-statutory) and how they influence outcome
The plea in mitigation and ethical constraints on advancing mitigation
Concurrent versus consecutive sentences and the totality principle
Credit for an early guilty plea and how timing affects sentence reduction
Ancillary orders commonly imposed alongside the main sentence
The function and procedure of Newton hearings to resolve disputed facts after a guilty plea
Applying these principles to realistic fact patterns in SQE2-style assessments

SQE2 Syllabus

For SQE2, you are required to understand sentencing in practical terms, with a focus on the following syllabus points:

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?
Outline the main steps a court follows under a typical Sentencing Council guideline when sentencing an adult offender.
What is meant by the custody threshold and how does it differ from the community order threshold?
What is an offence taken into consideration (TIC) and how can TICs influence the sentence?
What reduction in sentence is usually available where a defendant indicates a guilty plea at the first hearing, and how does this change if the plea is entered shortly before trial?
What factors will the court consider when deciding whether to suspend a custodial sentence rather than impose immediate custody?
What are the potential consequences if an adult offender wilfully and persistently breaches a community order?
Explain the totality principle and give an example of its application in a multi-offence case.
What is the function of a pre-sentence report, and in what types of case is the court particularly likely to request one?

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.

In practice, a sentencing hearing usually follows this sequence:

The prosecution outlines the facts of the offence and the defendant’s criminal record.
Any victim personal statement is summarised.
The defence advocate presents a plea in mitigation, highlighting mitigating factors and proposing an appropriate sentence.
The court considers any pre-sentence report or other reports (for example, psychiatric reports).
The judge or magistrates apply the relevant Sentencing Council guideline, adjust for aggravating and mitigating factors, consider any reduction for a guilty plea, and decide on ancillary orders.
Sentence and reasons are announced in open court.

In the magistrates’ court this process is often relatively brief, especially for low-level offending. In the Crown Court, sentencing can be more involved: advocates may make fuller submissions, written sentencing notes might be provided, and there is more frequent use of pre-sentence reports and expert reports (for example, psychiatric or psychological assessments).

The sequence is broadly the same whether the conviction follows a guilty plea or a trial, but two practical differences are important:

After a guilty plea, the court will have to calculate any reduction in sentence for the plea.
After a contested trial, the factual basis is fixed by the verdict; after a guilty plea, if the parties disagree about important facts, a Newton hearing may be needed to resolve those facts before sentence is passed.

Key Term: pre-sentence report
A report prepared by probation (or the Youth Offending Team for youths) setting out the nature of the offending, background, risk of reoffending, impact on victims and suggested sentencing options. The court must consider the report but is not bound to follow its recommendation.

Pre-sentence reports are particularly common where the court is considering:

custody for the first time
a community order with treatment or rehabilitative requirements
a complex case involving mental health, learning disability, or high risk of harm.

Sentences must be proportionate to the seriousness of the offending, reflect the purposes of sentencing, and be explained clearly so that the defendant understands the consequences of compliance or breach. The Sentencing Code (Sentencing Act 2020) and the Sentencing Council guidelines provide the structure within which that assessment is carried out.

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. Failure to follow the guidelines, or to explain a departure from them, can provide grounds for appeal.

Key Term: Sentencing Council guidelines
Guidance issued by the Sentencing Council to ensure consistency, transparency and proportionality in sentencing. Courts must follow any relevant guideline unless it would be contrary to the interests of justice to do so.

The guidelines are produced after consultation and research. They build in:

current sentencing practice
statutory maximum and minimum sentences
the need for proportionality between similar cases
the impact of sentences on victims, offenders and the public
evidence on what works in reducing reoffending.

For adults (18 or over), the Sentencing Code sets out five statutory purposes of sentencing:

punishment of offenders
reduction of crime (including its reduction by deterrence)
reform and rehabilitation of offenders
protection of the public
making reparation to victims or society

Key Term: purposes of sentencing
The five statutory aims that a court must have regard to when sentencing an adult, unless the sentence is fixed by law (for example, mandatory life for murder) or subject to a statutory minimum.

These purposes often pull in different directions. For example, the punishment and deterrence aims might suggest a short immediate custodial term; the rehabilitation and reparation aims may instead point towards a structured community order with treatment and unpaid work. The judge must balance them and decide which are most important in the particular case, always within the framework of the statutory maximum for the offence.

The guidelines normally adopt a multi-step structure (often eight or nine steps). Key steps are:

Step 1 – determine offence category by assessing culpability and harm.
Step 2 – identify the starting point within the category range and adjust provisionally within that range by reference to aggravating and mitigating factors.
Step 3 – consider any other factors which might justify a further reduction, such as formal assistance to the prosecution.
Step 4 – apply any reduction for a guilty plea.
Step 5 – consider dangerousness and whether an extended or life sentence is required under the dangerous offender provisions (relevant only for certain serious offences).
Step 6 – consider totality where there is more than one offence.
Step 7 – consider compensation and ancillary orders.
Step 8 – give reasons.
(Some guidelines also include a step on credit for time spent on bail subject to a qualifying curfew.)

Not every step applies in every case, but the seriousness of the offence is always the starting point, judged by assessing the offender’s culpability and the harm caused or intended.

Key Term: culpability
The offender’s blameworthiness, assessed by reference to their role, level of intention or recklessness, and the degree of planning. Higher culpability involves factors such as a leading role, use of a weapon, or significant planning; lower culpability involves a minor role, little or no planning, or acting under pressure.

Key Term: harm
The harm actually caused, intended, or that might foreseeably have been caused. It includes physical and psychological injury, financial loss, and harm to the community (for example, in drug supply or public disorder).

Key Term: starting point
The sentence (usually expressed as a type and length of sentence) identified in the guideline for a particular category of harm and culpability, before personal aggravating or mitigating factors are applied.

Key Term: category range
The range of sentences that the guideline indicates may be appropriate for an offence of a given category, once aggravating and mitigating factors are taken into account.

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.

Many offence-specific guidelines divide cases into three categories:

Category 1 – greater harm and higher culpability (the most serious).
Category 2 – either greater harm and lower culpability, or lesser harm and higher culpability.
Category 3 – lesser harm and lower culpability (the least serious).

The aim is to ensure that the more serious the combination of harm and culpability, the higher within the statutory maximum the sentence will fall.

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—raise seriousness and will usually move the sentence up within the category range. Lack of planning and genuine remorse are mitigating factors and may pull the sentence down. The court will first identify the appropriate starting point under the burglary guideline based on harm (for example, value of goods, whether the premises were occupied, any trauma to the householders) and culpability (for example, whether tools were used, whether the offence was targeted). A domestic burglary at night in an occupied house often falls in a higher category than a daytime commercial burglary.

Ravi’s repeated similar offending and offending on bail strongly suggest that previous, more lenient sentences have failed. Those factors are likely to outweigh the mitigation and push the provisional sentence towards the top of the category range. The custody threshold is therefore very likely to be passed, making a custodial sentence probable. Depending on personal mitigation (for example, caring responsibilities, recent efforts at rehabilitation) and any realistic prospect of change, the court may consider suspending that sentence, but will need strong justification given the poor record and offending on bail.

Types of Sentences

The main types of sentences available to the courts are grouped into custodial and non-custodial options.

Key Term: non-custodial sentence
Any sentence that does not involve immediate imprisonment, such as a fine, discharge or community order.

Key Term: custodial sentence
A sentence that involves imprisonment. It is reserved for offences so serious that neither a fine nor a community order can be justified.

1. Custodial sentences

The court must not pass a custodial sentence unless the offence is so serious that a fine or community order is insufficient. This is known as the custody threshold.

Key Term: custody threshold
The test that the court must apply before imposing immediate imprisonment: custody may only be imposed if the offence is so serious that neither a fine alone nor a community order can be justified.

Important points about custodial sentences include:

Immediate custody is a measure of last resort. Even when the guideline suggests a custodial starting point, the court must ask whether the objectives of sentencing can be met by a suitably onerous community order instead.
The term imposed must be the shortest commensurate with the seriousness of the offence or offences and must not exceed the statutory maximum for the offence.
Magistrates have limited powers of imprisonment; the Crown Court can impose any sentence permitted by statute for the offence.
For most determinate custodial sentences, an adult offender will be released on licence at the halfway point. The licence conditions continue until the end of the sentence and can be enforced by recall to prison if breached.

Where the judge concludes that the offender presents a significant risk of serious harm and the offence is one of certain serious “specified” offences, more complex dangerous offender provisions and extended sentences may apply. Detailed knowledge of those provisions is not usually required for SQE2, but you should be aware that they exist and can significantly increase the custodial term.

2. 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.

Key features:

Only custodial sentences of between 14 days and 2 years (for a single sentence) can be suspended.
The court sets an operational period (during which any further offence or breach may trigger activation) and may impose requirements similar to a community order, such as unpaid work or a curfew.
Suspension is not a soft option: a suspended sentence is still a custodial sentence, and breach can result in the offender being sent to prison to serve all or part of the term.

When deciding whether to suspend, the court considers factors such as:

realistic prospects of rehabilitation
strong personal mitigation (for example, sole or primary caring responsibilities)
whether immediate custody would have a significant harmful impact on others (for example, dependent children)
whether the offender has previously complied with court orders (a history of poor compliance weighs against suspension)
whether suitable requirements can be attached to the order to act as both punishment and rehabilitation.

If an offender is brought back to court for breaching the requirements of a suspended sentence or for committing a new offence during the operational period, the court must normally activate the custodial term either in full or in part, unless it would be unjust to do so in all the circumstances. In addition, the court can impose a fine for the breach.

3. Community orders

Community orders are flexible non-custodial sentences that may include one or more requirements, such as:

unpaid work
curfew with electronic monitoring
rehabilitation activity (for example, offending behaviour programmes)
drug, alcohol or mental health treatment
exclusion from certain places
residence at a specified address.

A community order must only be imposed if the offence is “serious enough” to justify such a sentence. This is known as the community order threshold and sits below the custody threshold. Less serious cases may be dealt with by a fine or discharge.

When imposing a community order, the court should:

decide whether a low, medium or high level order is appropriate, depending on offence seriousness
ensure that the overall requirements are proportionate and workable, not so onerous that breach is almost inevitable
tailor any rehabilitative elements to the offender’s needs (for example, treatment for addiction or mental health issues).

Breach of a community order can lead to:

the order being varied (for example, adding a requirement or increasing hours of unpaid work)
the order being revoked and the offender being re-sentenced for the original offence, which may now include custody
in cases of wilful and persistent non-compliance, the imposition of a custodial sentence even where the original offence did not previously cross the custody threshold, because the breach behaviour adds to overall seriousness.

4. Fines and discharges

For less serious offences, the court may fine the offender or (less commonly) give an absolute or conditional discharge.

A fine is a financial penalty, usually linked to the offender’s means. In the magistrates’ court, fines are often calculated by reference to weekly income and offence seriousness bands. The court must consider ability to pay and may allow payment by instalments.
A conditional discharge involves no immediate punishment but the offender must not commit another offence within a specified period (up to three years). If they do, they can be re-sentenced for the original offence as well as for the new offence.
An absolute discharge records guilt but imposes no penalty and no conditions; it is reserved for very trivial cases or where the consequences of a conviction are themselves sufficient.

Although fines and discharges are at the lower end of the sentencing scale, they are still convictions and can be relevant for future sentencing and for disclosure purposes.

Worked Example 1.2

Leah, aged 32, pleads guilty to theft of goods worth £150 from a supermarket. She has no previous convictions, is in stable employment and cares for a young child. She immediately admitted the offence in interview and has since repaid the store.

Answer:
This is low-value, one-off offending by someone of previous good character with strong personal mitigation and full reparation. There is no planning or breach of trust. On the standard theft guideline, the combination of low harm and low culpability would be towards the bottom of the range. The community order threshold may not even be reached; a fine is likely to be sufficient punishment and deterrence. Even if a low-level community order were technically available, the court must adopt the least severe sentence that is commensurate with seriousness, which here is likely to be a fine, possibly combined with a victim surcharge and costs, but not custody. A conditional discharge might be considered in an exceptional case, but a modest fine recognises the wrongfulness of the conduct while still allowing Leah to continue caring for her child and maintaining employment.

Aggravating and Mitigating Factors

The Sentencing Council’s guidelines set out both statutory and non-statutory factors that affect seriousness. These operate at Step 2 of the guideline, moving the sentence up or down within the category range.

Examples of statutory aggravating factors include:

previous convictions, especially for similar offences
offences committed while on bail
hostility based on race, religion, sexual orientation, disability or transgender identity.

Examples of guideline (non-statutory) aggravating factors:

offences committed while subject to a court order (for example, suspended sentence, community order, post-sentence supervision)
a high level of harm or targeting of vulnerable victims (for example, children, elderly, disabled)
abuse of a position of trust or authority (for example, carer, teacher, professional)
offences committed as part of a group or gang
evidence of significant planning or premeditation
offences taken into consideration (TICs), reflecting wider criminality
committing the offence while under the influence of alcohol or drugs.

Key Term: offences taken into consideration (TICs)
Additional offences of a similar or lesser type that the offender admits and asks the court to take into account when sentencing for the principal offence. TICs increase the overall seriousness but allow “clean slate” sentencing without separate prosecutions.

TICs should normally be of a similar or less serious nature than the index offence. They should not be accepted where:

it is likely that they would attract a much more severe sentence than the offence before the court
a separate prosecution is clearly in the public interest (for example, because of their seriousness or the interests of victims)
taking them into consideration would allow the offender to avoid an ancillary order that would otherwise be appropriate.

Mitigating factors may include:

genuine remorse (supported by actions, such as apology or voluntary compensation)
lack of premeditation or impulsive behaviour
young age or immaturity
mental health problems, learning disability or physical ill-health
strong personal mitigation (for example, sole carer for dependants, steady employment)
cooperation with the investigation (for example, admissions in interview, assistance to the prosecution)
steps taken to address root causes of offending (for example, engaging in treatment or counselling, stabilising lifestyle).

The judge or magistrates will balance all factors and provide reasons for the chosen sentence. They must also avoid “double counting”: if a feature is already built into the offence definition or the guideline category (for example, use of a weapon where that is an element of the offence), it should not be treated again as an aggravating factor.

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. All mitigation must have a proper evidential basis and must not mislead the court.

Mitigation can relate to:

the offence (for example, lower level of harm than typical, provocation, minor role)
the offender (for example, good character, responsibilities, efforts at rehabilitation)
the impact of the sentence (for example, severe impact on dependants).

Worked Example 1.3

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 youth, clean record, voluntary surrender, single blow in the context of sustained provocation, and any genuine remorse. These factors reduce culpability and harm within the guideline categories and would normally move the sentence down from the starting point. The fact that she handed herself in and cooperated with the police may also be treated as positive behaviour when considering rehabilitation. Unless there are serious aggravating factors (for example, use of a weapon, group attack, or injury at the more serious end of the ABH spectrum), the custody threshold is unlikely to be passed. A community order or even a high-level fine may be appropriate, possibly with a requirement addressing anger management or similar issues. The plea in mitigation should draw out these points without suggesting that she was justified in using unlawful force.

Exam Warning

Plea in mitigation must be based on evidence and never mislead the court. A defence representative must not assert a positive fact (for example, lack of previous violence or remorse) without a proper basis in instructions or evidence. Misleading the court risks professional misconduct and may damage the client’s credibility.

Concurrent, Consecutive, and Totality Principle

Where there are multiple offences, the court must decide how the sentences will operate:

Concurrent sentences: used when offences arise out of the same incident or are closely related in time and nature. All sentences are served at the same time, so the overall term equals the longest individual term.
Consecutive sentences: used when offences are distinct in time or nature, or where concurrent sentences would not properly reflect the total criminality (for example, a new offence committed while subject to a suspended sentence).

Key Term: totality principle
The requirement that the total sentence for multiple offences must be just and proportionate to the overall criminal behaviour and the offender’s circumstances. It should neither understate nor exaggerate the seriousness of the offending as a whole.

In practice the court will:

determine the appropriate sentence for each individual offence using the relevant guidelines
decide, applying the Sentencing Council’s Totality guideline, whether sentences should run concurrently or consecutively
stand back and ask whether the overall sentence is fair and proportionate; if not, adjustments are made.

Typical examples:

Concurrent sentences are usually appropriate for:
- offences forming part of the same incident (for example, assault and criminal damage in the same fight)
- a series of offences of the same kind committed against the same victim over a short period.
Consecutive sentences are often appropriate for:
- offences against different victims
- similar offences committed on separate occasions
- an offence committed in breach of an existing court order.

The court must also consider whether adding further consecutive terms would make the overall sentence disproportionate. For example, several low-level offences might justify modest individual terms, but when combined the total might need to be reduced to keep within the overall seriousness of the case.

Worked Example 1.4

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 on different days, consecutive sentences could be imposed, giving a total of 12 weeks. However, the offences are similar, low-level, and none is markedly more serious than the others. Applying the Totality guideline, the court must ensure that the total sentence is not disproportionate to the overall criminality. Concurrent sentences, or a combination of partially concurrent and partially consecutive terms, may better reflect seriousness. The court might, for example, impose 4 weeks on each count but make two concurrent and one consecutive, or convert the short custodial terms into a more constructive community order if the custody threshold is marginal. Defence mitigation should emphasise any contributory issues (such as addiction) and argue that a single community order addressing those causes is more effective than short spells in custody.

Reductions for Guilty Plea

An early guilty plea will usually reduce the sentence. The Reduction in Sentence for a Guilty Plea guideline applies in both magistrates’ courts and the Crown Court.

Key points:

The maximum reduction is one third if the plea (or clear indication of a plea) is given at the first stage of proceedings (usually the first hearing where plea is sought).
If the plea is entered after that stage but before the trial date is set or the case is listed for trial (for example, at a Crown Court plea and trial preparation hearing), the maximum reduction is generally one quarter.
A plea on the first day of trial usually attracts up to one tenth.
A plea during the trial may attract a very small reduction or none, depending on circumstances.
The reduction applies to punitive elements of the sentence (for example, length of custody, amount of community work, amount of fine), not to purely ancillary orders such as compensation.

The court must also consider whether it was reasonable to expect the defendant to indicate a guilty plea earlier; if not (for example, where important disclosure was late or legal advice was unavailable), a larger reduction may still be allowed even though the plea is entered at a later stage.

In applying the guideline, the court should:

first reach a provisional sentence after considering seriousness, aggravating and mitigating factors, and any assistance to the prosecution
then apply the appropriate percentage reduction for the timing of the guilty plea
finally consider totality (if there are multiple offences) and ancillary orders.

For community orders, the reduction may be reflected by reducing the length or intensity of the order (for example, fewer hours of unpaid work or a shorter curfew). For fines, the reduction is normally expressed as a percentage reduction in the amount.

Worked Example 1.5

Omar is charged with burglary. The guideline starting point, after considering culpability and harm and all other factors, is 18 months’ custody. He indicates a guilty plea at the first hearing in the magistrates’ court, and the case is sent to the Crown Court for sentence.

Answer:
Because Omar indicated a guilty plea at the first stage of proceedings, he is entitled to up to a one-third reduction. The court starts with the 18‑month provisional sentence (after adjusting for aggravating and mitigating factors) and then applies the guilty plea discount. One third of 18 months is 6 months, so the sentence would be reduced to 12 months. The judge then considers whether custody is still necessary and, if so, whether it should be suspended. If the provisional custodial term, after discount, falls into a range where a community order could meet the sentencing aims, the judge might decide to impose a high-level community order instead of immediate custody. The judge must explain in open court how the discount has been calculated.

Ancillary Orders

Courts may impose additional orders alongside the main sentence. These can be highly significant for the client and must be considered explicitly.

Common ancillary orders include:

compensation orders (requiring payment to victims for loss, damage or injury)
restraining orders (prohibiting specified contact or conduct, often after offences involving harassment, stalking or domestic abuse)
disqualification from driving (for example, for dangerous or drink driving)
deprivation or forfeiture of property used in the commission of crime (for example, weapons or vehicles)
criminal behaviour orders in persistent anti-social behaviour cases
orders relating to sexual or violent offenders (for example, notification requirements, sexual harm prevention orders, serious crime prevention orders)
the mandatory victim surcharge.

The Sentencing Council’s guidelines remind courts at Step 7 to consider compensation and other ancillary orders in every case where they may be appropriate. Defence advocates should address these orders specifically, especially where they may have a major impact on the offender’s ability to work or live with family members.

Newton Hearings

Where the defendant pleads guilty but there is a factual dispute affecting the sentence (for example, what harm was caused, whether a weapon was used, or whether the defendant had a leading role), a Newton hearing may be held. This procedure comes from R v Newton.

Key Term: Newton hearing
A procedure used after a guilty plea where there is a material factual dispute relevant to sentence. The judge hears evidence or submissions and decides the facts before passing sentence.

Typical features:

The prosecution and defence set out their competing versions of the facts, often attempting to agree a written “basis of plea”. If they cannot agree, the court must decide how to resolve the dispute.
The judge may hear live evidence (a full Newton hearing) or resolve the issue on the basis of written material and submissions if the dispute is narrow and the evidence clear.
If evidence is heard, the prosecution must prove its version of the disputed fact to the criminal standard (beyond reasonable doubt). If it cannot, the court should sentence on the basis of the defence version (provided it is not obviously false or absurd).
If the judge concludes that the defendant has advanced a version that is deliberately untruthful and more favourable to them, any credit for the guilty plea can be reduced, because the plea has not saved as much court time as it should have done.

The decision whether to hold a Newton hearing lies with the judge. If the defence version of events would not make a real difference to sentence, the court may decline to hold a hearing and sentence on the prosecution’s basis. Conversely, if the prosecution’s version cannot be supported by evidence, the court may sentence on the defence basis without a Newton hearing.

Worked Example 1.6

A defendant admits assault occasioning actual bodily harm but disputes using a weapon, which would make the offence much more serious. The prosecution allege a weapon was used and rely on a witness statement and medical photographs.

Answer:
There is a clear factual dispute that materially affects sentence: use of a weapon increases culpability and harm under the guideline and may move the offence up a category. Because the parties cannot agree a basis of plea, the court should hold a Newton hearing unless the prosecution accepts that it cannot prove weapon use. The prosecution must call evidence (for example, the witness and possibly the doctor) to prove beyond reasonable doubt that a weapon was used. If the court is sure a weapon was involved, it will sentence on that basis, likely leading to a higher category and longer sentence, and may consider whether the defendant’s account was dishonest when assessing credit for the guilty plea. If the court is not sure, it must sentence on the basis that no weapon was used, placing the case in a lower culpability category.

Worked Example 1.7

Daniel, aged 27, pleads guilty at the first hearing to two offences arising from the same incident in a pub: assault occasioning actual bodily harm (punching another customer and causing a fractured cheekbone) and criminal damage (smashing two glasses and a window). He has one previous conviction for common assault from three years ago but no recent offending. He is in full-time work and cares for his elderly father. The prosecution do not allege use of a weapon or group attack.

Answer:
The ABH and criminal damage clearly arise from the same incident. Applying the ABH guideline, there is significant harm (fractured cheekbone requiring treatment) but limited planning and a single blow, so harm may be categorised as greater but culpability as medium or lower, depending on any provocation. The previous conviction for common assault is a statutory aggravating factor, but it is not recent and does not show persistent violent offending. The criminal damage is part and parcel of the same outburst.

At Step 2 the court identifies a custodial starting point for the ABH, but strong personal mitigation (employment, caring responsibilities, remorse) and the fact that this is a single pub incident may justify moving down within the range. The criminal damage offence will attract a shorter sentence, and under the totality principle the court is likely to make that sentence concurrent with the ABH, because both offences form part of the same incident. Daniel’s early guilty plea entitles him to up to one-third credit, which is applied after aggravating and mitigating factors have been considered.

The court then reassesses the custody threshold. A short custodial term may still be indicated by the harm, but the combination of mitigation, early plea and the availability of a robust community order with a punitive element (for example, unpaid work and a curfew) may justify avoiding immediate custody. Alternatively, the court might impose a short custodial sentence but suspend it with requirements, explaining clearly that any further violence risks activation.

Revision Tip

For SQE2-style problems involving sentencing, adopt a structured approach: identify the correct guideline, place the offence within harm and culpability categories, adjust for aggravating and mitigating factors, consider custody and community thresholds, apply any guilty plea credit, then address concurrency/totality and ancillary orders.

Key Point Checklist

This article has covered the following key knowledge points:

Sentencing follows the Sentencing Council guidelines; courts must follow any relevant guideline unless it would be contrary to the interests of justice to do so, and must give reasons where they depart.
The seriousness of an offence is assessed by reference to culpability and harm; the guideline starting point and category range are then adjusted for aggravating and mitigating factors, taking care not to double count features already built into the offence.
Statutory aggravating factors (such as previous convictions and offending on bail) and guideline aggravating factors increase seriousness; mitigation can be both offence-related (for example, provocation, minor role) and personal to the offender (for example, youth, health, caring responsibilities).
Courts must apply the community order threshold and custody threshold, reserving immediate custody for offences so serious that no other sentence is justified, and choosing the least severe sentence that properly reflects seriousness.
The main sentences are custodial (including suspended), community orders, fines and discharges; suspended sentences combine a custodial term with requirements in the community and can be activated on breach or further offending.
Community orders are flexible and can contain multiple requirements, but they must be proportionate and realistic; wilful and persistent breach can justify escalation to custody even if the original offence was marginal.
Sentences for multiple offences may be concurrent or consecutive; the totality principle ensures the final overall sentence is just and proportionate to the offender’s overall criminality, especially where there are several similar low-level offences.
Early guilty pleas attract a reduction in sentence, with a maximum of one third where a plea is indicated at the first stage of proceedings and smaller reductions as the case progresses; the reduction applies only to punitive elements of the sentence.
Defence representatives present a plea in mitigation to highlight mitigating factors and propose a proportionate, realistic sentence, but must not mislead the court and must ensure any factual assertions have a proper evidential basis.
Ancillary orders, such as compensation, restraining orders, driving disqualification and forfeiture orders, can significantly affect the defendant and must be expressly considered and addressed in submissions.
Newton hearings are used after a guilty plea to resolve factual disputes that materially affect sentence; the prosecution must prove its version beyond reasonable doubt, and unsuccessful attempts by the defendant to advance an untruthful version can affect credit for the plea.
Pre-sentence reports prepared by probation often play a central role, particularly where custody or complex community orders are being considered; the court must consider but is not bound by their recommendations.

Key Terms and Concepts

Sentencing Council guidelines
purposes of sentencing
starting point
category range
culpability
harm
aggravating factor
offences taken into consideration (TICs)
mitigating factor
plea in mitigation
pre-sentence report
non-custodial sentence
custodial sentence
custody threshold
suspended sentence
totality principle
Newton hearing

Procedures and processes in criminal litigation - Sentencing