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Criminal Justice Bill


Criminal Justice Bill
Part 11 — Sentencing
Chapter 1 — General provisions about sentencing

84

 

113     

Saving

No provision of this Part has effect in relation to criminal proceedings begun

before the commencement of that provision.

Part 11

Sentencing

5

Chapter 1

General provisions about sentencing

Matters to be taken into account in sentencing

114     

Purposes of sentencing

(1)   

Any court dealing with an offender in respect of his offence must have regard

10

to the following purposes of sentencing—

(a)   

the punishment of offenders,

(b)   

the reduction of crime (including its reduction by deterrence),

(c)   

the reform and rehabilitation of offenders,

(d)   

the protection of the public, and

15

(e)   

the making of reparation by offenders to persons affected by their

offences.

(2)   

Subsection (1) does not apply—

(a)   

in relation to an offender who is aged under 18 at the time of conviction,

(b)   

to an offence the sentence for which is fixed by law,

20

(c)   

to an offence the sentence for which falls to be imposed under section

51A(2) of the Firearms Act 1968 (c. 27) (minimum sentence for certain

firearms offences), under subsection (2) of section 110 or 111 of the

Sentencing Act (required custodial sentences) or under any of sections

197 to 200 of this Act (dangerous offenders), or

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(d)   

in relation to the making under Part 3 of the Mental Health Act 1983

(c. 20) of a hospital order (with or without a restriction order), an

interim hospital order, a hospital direction or a limitation direction.

(3)   

In this Chapter “sentence”, in relation to an offence, includes any order made

by a court when dealing with the offender in respect of his offence; and

30

“sentencing” is to be construed accordingly.

115     

Determining the seriousness of an offence

(1)   

In considering the seriousness of any offence, the court must consider the

offender’s culpability in committing the offence and any harm which the

offence caused, was intended to cause or might forseeably have caused.

35

(2)   

In considering the seriousness of an offence (“the current offence”) committed

by an offender who has one or more previous convictions, the court must treat

each previous conviction as an aggravating factor if (in the case of that

conviction) the court considers that it can reasonably be so treated having

regard, in particular, to—

40

 

 

Criminal Justice Bill
Part 11 — Sentencing
Chapter 1 — General provisions about sentencing

85

 

(a)   

the nature of the offence to which the conviction relates and its

relevance to the current offence, and

(b)   

the time that has elapsed since the conviction.

(3)   

In considering the seriousness of any offence committed while the offender

was on bail, the court must treat the fact that it was committed in those

5

circumstances as an aggravating factor.

(4)   

Any reference in subsection (2) to a previous conviction is to be read as a

reference to—

(a)   

a previous conviction by a court in the United Kingdom, or

(b)   

a previous finding of guilt in service disciplinary proceedings.

10

(5)   

Subsections (2) and (4) do not prevent the court from treating a previous

conviction by a court outside the United Kingdom as an aggravating factor in

any case where the court considers it appropriate to do so.

116     

Reduction in sentences for guilty pleas

(1)   

In determining what sentence to pass on an offender who has pleaded guilty

15

to an offence in proceedings before that or another court, a court must take into

account—

(a)   

the stage in the proceedings for the offence at which the offender

indicated his intention to plead guilty, and

(b)   

the circumstances in which this indication was given.

20

(2)   

In the case of an offence the sentence for which falls to be imposed under

subsection (2) of section 110 or 111 of the Sentencing Act, nothing in that

subsection prevents the court, after taking into account any matter referred to

in subsection (1) of this section, from imposing any sentence which is not less

than 80 per cent of that specified in that subsection.

25

117     

Increase in sentences for racial or religious aggravation

(1)   

This section applies where a court is considering the seriousness of an offence

other than one under sections 29 to 32 of the Crime and Disorder Act 1998

(c. 37) (racially or religiously aggravated assaults, criminal damage, public

order offences and harassment etc).

30

(2)   

If the offence was racially or religiously aggravated, the court—

(a)   

must treat that fact as an aggravating factor, and

(b)   

must state in open court that the offence was so aggravated.

(3)   

Section 28 of the Crime and Disorder Act 1998 (meaning of “racially or

religiously aggravated”) applies for the purposes of this section as it applies for

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the purposes of sections 29 to 32 of that Act.

118     

Increase in sentences for aggravation related to disability or sexual

orientation

(1)   

This section applies where the court is considering the seriousness of an

offence committed in any of the circumstances mentioned in subsection (2).

40

(2)   

Those circumstances are—

 

 

Criminal Justice Bill
Part 11 — Sentencing
Chapter 1 — General provisions about sentencing

86

 

(a)   

that, at the time of committing the offence, or immediately before or

after doing so, the offender demonstrated towards the victim of the

offence hostility based on—

(i)   

the sexual orientation (or presumed sexual orientation) of the

victim, or

5

(ii)   

a disability (or presumed disability) of the victim, or

(b)   

that the offence is motivated (wholly or partly)—

(i)   

by hostility towards persons who are of a particular sexual

orientation, or

(ii)   

by hostility towards persons who have a disability or a

10

particular disability.

(3)   

The court—

(a)   

must treat the fact that the offence was committed in any of those

circumstances as an aggravating factor, and

(b)   

must state in open court that the offence was committed in such

15

circumstances.

(4)   

It is immaterial for the purposes of paragraph (a) or (b) of subsection (2)

whether or not the offender’s hostility is also based, to any extent, on any other

factor not mentioned in that paragraph.

(5)   

In this section “disability” means any physical or mental impairment.

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General restrictions on community sentences

119     

Meaning of “community sentence” etc.

(1)   

In this Part “community sentence” means a sentence which consists of or

includes—

(a)   

a community order (as defined by section 149), or

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(b)   

one or more youth community orders.

(2)   

In this Chapter “youth community order” means—

(a)   

a curfew order as defined by section 163 of the Sentencing Act,

(b)   

an exclusion order under section 40A(1) of that Act,

(c)   

an attendance centre order as defined by section 163 of that Act,

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(d)   

a supervision order under section 63(1) of that Act, or

(e)   

an action plan order under section 69(1) of that Act.

120     

Restrictions on imposing community sentences

(1)   

A court must not pass a community sentence on an offender unless it is of the

opinion that the offence, or the combination of the offence and one or more

35

offences associated with it, was serious enough to warrant such a sentence.

(2)   

Where a court passes a community sentence which consists of or includes a

community order—

(a)   

the particular requirement or requirements forming part of the

community order must be such as, in the opinion of the court, is, or

40

taken together are, the most suitable for the offender, and

(b)   

the restrictions on liberty imposed by the order must be such as in the

opinion of the court are commensurate with the seriousness of the

 

 

Criminal Justice Bill
Part 11 — Sentencing
Chapter 1 — General provisions about sentencing

87

 

offence, or the combination of the offence and one or more offences

associated with it.

(3)   

Where a court passes a community sentence which consists of or includes one

or more youth community orders—

(a)   

the particular order or orders forming part of the sentence must be such

5

as, in the opinion of the court, is, or taken together are, the most suitable

for the offender, and

(b)   

the restrictions on liberty imposed by the order or orders must be such

as in the opinion of the court are commensurate with the seriousness of

the offence, or the combination of the offence and one or more offences

10

associated with it.

(4)   

Subsections (1) and (2)(b) have effect subject to section 123(2).

121     

Passing of community sentence on offender remanded in custody

(1)   

In determining the restrictions on liberty to be imposed by a community order

or youth community order in respect of an offence, the court may have regard

15

to any period for which the offender has been remanded in custody in

connection with the offence or any other offence the charge for which was

founded on the same facts or evidence.

(2)   

In subsection (1) “remanded in custody” has the meaning given by section

214(2).

20

122     

Community sentence not available where sentence fixed by law etc.

The power to make a community order or youth community order is not

exercisable in respect of an offence for which the sentence—

(a)   

is fixed by law,

(b)   

falls to be imposed under section 51A(2) of the Firearms Act 1968 (c. 27)

25

(required custodial sentence for certain firearms offences),

(c)   

falls to be imposed under section 110(2) or 111(2) of the Sentencing Act

(requirement to impose custodial sentences for certain repeated

offences committed by offenders aged 18 or over), or

(d)   

falls to be imposed under any of sections 197 to 200 of this Act

30

(requirement to impose custodial sentences for certain offences

committed by offenders posing risk to public).

123     

Community order for persistent offender previously fined

(1)   

Subsection (2) applies where—

(a)   

a person aged 16 or over is convicted of an offence (“the current

35

offence”),

(b)   

on three or more previous occasions he has, on conviction by a court in

the United Kingdom of any offence committed by him after attaining

the age of 16, had passed on him a sentence consisting only of a fine,

and

40

(c)   

despite the effect of section 115(2), the court would not (apart from this

section) regard the current offence, or the combination of the current

offence and one or more offences associated with it, as being serious

enough to warrant a community sentence.

 

 

Criminal Justice Bill
Part 11 — Sentencing
Chapter 1 — General provisions about sentencing

88

 

(2)   

The court may make a community order in respect of the current offence

instead of imposing a fine if it considers that, having regard to all the

circumstances including the matters mentioned in subsection (3), it would be

in the interests of justice to make such an order.

(3)   

The matters referred to in subsection (2) are—

5

(a)   

the nature of the offences to which the previous convictions mentioned

in subsection (1)(b) relate and their relevance to the current offence, and

(b)   

the time that has elapsed since the offender’s conviction of each of those

offences.

(4)   

In subsection (1)(b), the reference to conviction by a court in the United

10

Kingdom includes a reference to the finding of guilt in service disciplinary

proceedings; and, in relation to any such finding of guilt, the reference to the

sentence passed is a reference to the punishment awarded.

(5)   

For the purposes of subsection (1)(b), a compensation order does not form part

of an offender’s sentence.

15

(6)   

For the purposes of subsection (1)(b), it is immaterial whether on other

previous occasions a court has passed on the offender a sentence not consisting

only of a fine.

(7)   

This section does not limit the extent to which a court may, in accordance with

section 115(2), treat any previous convictions of the offender as increasing the

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seriousness of an offence.

General restrictions on discretionary custodial sentences

124     

General restrictions on imposing discretionary custodial sentences

(1)   

This section applies where a person is convicted of an offence punishable with

a custodial sentence other than one—

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(a)   

fixed by law, or

(b)   

falling to be imposed under section 51A(2) of the Firearms Act 1968

(c. 27), under 110(2) or 111(2) of the Sentencing Act or under any of

sections 197 to 200 of this Act.

(2)   

The court must not pass a custodial sentence unless it is of the opinion that the

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offence, or the combination of the offence and one or more offences associated

with it, was so serious that neither a fine alone nor a community sentence can

be justified for the offence.

(3)   

Nothing in subsection (2) prevents the court from passing a custodial sentence

on the offender if—

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(a)   

he fails to express his willingness to comply with a requirement which

is proposed by the court to be included in a community order and

which requires an expression of such willingness, or

(b)   

he fails to comply with an order under section 133(2) (pre-sentence

drug testing).

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125     

Length of discretionary custodial sentences: general provision

(1)   

This section applies where a court passes a custodial sentence other than one

fixed by law or falling to be imposed under section 197 or 198.

 

 

Criminal Justice Bill
Part 11 — Sentencing
Chapter 1 — General provisions about sentencing

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(2)   

Subject to section 51A(2) of the Firearms Act 1968, sections 110(2) and 111(2) of

the Sentencing Act and sections 199(2) and 200(2) of this Act, the custodial

sentence must be for the shortest term (not exceeding the permitted maximum)

that in the opinion of the court is commensurate with the seriousness of the

offence, or the combination of the offence and one or more offences associated

5

with it.

General limit on magistrates’ court’s power to impose imprisonment

126     

General limit on magistrates’ court’s power to impose imprisonment

(1)   

A magistrates’ court does not have power to impose imprisonment for more

than 12 months in respect of any one offence.

10

(2)   

Unless expressly excluded, subsection (1) applies even if the offence in  

question is one for which a person would otherwise be liable on summary

conviction to imprisonment for more than 12 months.

(3)   

Subsection (1) is without prejudice to section 133 of the Magistrates’ Courts Act

1980 (c. 43) (consecutive terms of imprisonment).

15

(4)   

Any power of a magistrates’ court to impose a term of imprisonment for non-

payment of a fine, or for want of sufficient distress to satisfy a fine, is not

limited by virtue of subsection (1).

(5)   

In subsection (4) “fine” includes a pecuniary penalty but does not include a

pecuniary forfeiture or pecuniary compensation.

20

(6)   

In this section “impose imprisonment” means pass a sentence of imprisonment

or fix a term of imprisonment for failure to pay any sum of money, or for want

of sufficient distress to satisfy any sum of money, or for failure to do or abstain

from doing anything required to be done or left undone.

(7)   

Section 132 of the Magistrates’ Courts Act 1980 (c. 43) contains provisions

25

about the minimum term of imprisonment which may be imposed by a

magistrates’ court.

(8)   

This section shall not come into effect before the national roll-out of the

“custody plus order” under sections 153 and 154.

127     

Consecutive terms of imprisonment

30

(1)   

Section 133 of the Magistrates’ Courts Act 1980 (consecutive terms of

imprisonment) is amended as follows.

(2)   

In subsection (1), for “6 months” there is substituted “65 weeks”.

(3)   

Subsection (2) is omitted.

(4)   

In subsection (3) for “the preceding subsections” there is substituted

35

“subsection (1) above”.

(5)   

This section shall not come into effect before the national roll-out of the

“custody plus order” under sections 153 and 154.

 

 

 
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