Sentencing

For the purposes of these notes a sentence may be described as the imposition of an order by the Court of General Gaol Delivery or a court of summary jurisdiction (“the Sentencing Court”) when a defendant has been convicted of a criminal offence.

The sentencing process has several aims:

• To punish an offender

• To reduce crime both by preventing the offender from committing further crimes and also to act as a deterrent to the offender and others

• To reform and rehabilitate offenders

• To protect the public

• To make the offender give something back to the people affected by the crime by way of reparation

Sentencing guidance

In the Isle of Man sentencing guidance is provided by the judgments of the Staff of Government (Appeal Division) of the High Court of Justice. Decisions of the English Court of Appeal and the Supreme Court of the United Kingdom and other Commonwealth courts can also be referred to for assistance where there are no relevant judgments of the Appeal Division or the Judicial Committee of the Privy Council.

Sentencing guidance helps to ensure a consistent approach is taken and that all relevant factors are taken into account.

The aim of providing easy public access to the information contained in these notes is to increase the transparency of the sentencing process and to help members of the public and those coming into contact with the criminal justice system to understand more about the sentencing process and how sentences are arrived at.

However, each case is decided individually. Judicial discretion still needs to be applied to the specific circumstances of the offence and the offender and any guidance must be viewed in this context.

How sentences are determined

For each offence there is a range of sentences available. The law sets out the maximum sentence available for each offence. The Sentencing Court carefully considers the facts of the offence, the circumstances of the offender, the seriousness of the crime, the consequences of the offence to the victim and to society, the aggravating factors and the mitigating circumstances relating to the offender.

Section 9(1) of the Custody Act 1995 states that “no court shall impose custody on a person unless it is of the opinion that no other method of dealing with him is appropriate.” A sentence of custody cannot therefore be imposed unless the Sentencing Court is satisfied that no other method of dealing with the offender is appropriate. Moreover section 9(2) of the Custody Act 1995 provides that “no court shall impose custody on a child or young person unless the court is of the opinion that the circumstances are so exceptional that it would be inappropriate to deal with him by any other method.”

For the purposes of forming an opinion under section 9(1) or (2) of the Custody Act 1995 the court is required to obtain and consider information about the circumstances including, unless the court thinks it unnecessary or impracticable, a social inquiry report and to take into account any information before the court which is relevant to the offender’s character and mental condition.

Sentences include:

1. An Absolute or Conditional Discharge

2. A Fine

3. Compensation

4. Costs

5. A Community Service Order

6. A Probation Order

7. A Combination Order (a Community Service Order and Probation Order)

8. Custody (this could take effect immediately or be suspended for a period of up to two years subject to activation if further offences are committed)

There are many aggravating factors which increase the seriousness of the offence and many mitigating factors which reduce the seriousness of the offence or reflect personal mitigation of the offender.

The following are lists of the most common aggravating and mitigating factors. These lists are not exhaustive and depending on the circumstances of the case there may be other factors which are relevant when sentence is being considered.

Aggravating factors

• Previous convictions – whether the offender has already committed similar or other crimes;

• The offence was committed in the context of ‘hostility’. In other words hostility was demonstrated at the time of the offence or the offence was motivated by hostility towards the victim’s membership of a racial, religious, or sexual orientation group or a disability or presumed disability of the victim;

• The offence was committed while the offender was on bail for another offence or was on licence;

• The offence was committed in the context of domestic violence;

• The victim was providing a service to the public e.g. police officers, fire officers and other public servants;

• The impact on the victim;

• Additional humiliation of the victim above and beyond that necessary to commit the offence;

• Attempts to conceal or dispose of evidence;

• The offence was committed for financial gain (where this is not inherent in the offence itself);

• The offence was related to terrorism;

• The offence was pre-planned;

• The offender intended to cause more harm than actually resulted;

• There was more than one victim;

• The victim was vulnerable and may have been deliberately targeted for this reason;

• The offender abused a position of trust/power;

• The use of a weapon;

• The use of deliberate and gratuitous violence to the person or damage to property;

• The presence of others who may have also been caused distress during the offence;

• Operating as part of a group or gang.

Mitigating factors

• The age of the offender. Although discount is sometimes given if the offender is young this depends on the nature of the offence and the awareness of the offender as to the offence. A lesser sentence may also be given if the offender is elderly;

• Personal circumstances – whether the offender has health problems or dependent relatives who could struggle if the offender was sent to prison though it is accepted that one of the consequences of committing a crime is that family members of the offender will suffer as a consequence;

• The offender co-operated with the police investigation or admitted the offence in interview;

• Pleading guilty – A person who admits to a crime and pleads guilty usually receives a lesser sentence. The earlier the plea the greater the reduction. As well as saving court costs and time it also saves victims and witnesses the ordeal of needing to attend court to give evidence. It also means that the matter is dealt with more quickly for them;

• The offender has shown genuine remorse;

• The offender voluntarily repaired or paid for property damaged or lost;

• The offender was pressured or provoked into committing the offence;

• The offender played a lesser role in the offence;

• The offender suffers from a mental or physical disability;

• The offender has no previous convictions and is of previous good character.

It must be stressed that the lists of aggravating and mitigating factors to be considered are not exhaustive and depending on the circumstances of the case there may be other factors which the Sentencing Court may take into account when determining sentence.

As well as considering the facts of the case a Sentencing Court will often consider expert reports including Social Inquiry Reports (SIR). An SIR is usually provided when a custodial sentence, probation order or community service order is being considered. Such report provides the court with information about the offender’s life history including previous offences, whether the offender has co-operated with previous court orders, whether the offender is likely to re-offend, whether the offender is likely to pose a risk of harm to the public, whether the offender has any remorse, the impact the sentences available may have on the offender and any victim issues.

The Sentencing Court will consider the aggravating factors.

The Sentencing Court will also consider any mitigation put forward by the offender or by his advocate, any references provided by his employer, family, friends or colleagues and any medical reports that might be relevant to the commission of the offence or any sentence that might be imposed.

Compensation and ancillary orders

The Sentencing Court may consider whether to make compensation and/or other ancillary orders. If appropriate it must determine the financial means of the offender to pay a fine, compensation order or a restitution order. Some of the most common ancillary orders include – driving licence endorsement or disqualification from driving; compensation and restitution orders; forfeiture orders (in relation to drugs or offensive weapons); restraining orders; and bans from entering on-licensed premises or purchasing or being sold alcohol where the offence is one where alcohol is involved.

Totality

If sentencing an offender for more than one offence or where the offender is already serving a sentence, the Sentencing Court must consider whether the total sentence is just and proportionate to the offending behaviour. The Sentencing Court must look at the totality of the offending behaviour and ask itself what is the appropriate sentence for all the offences. The Sentencing Court must ensure that the totality of any consecutive sentences imposed is not excessive.

Consideration of remand time

The Sentencing Court should take into account any remand time served in prison in relation to the sentence. The Sentencing Court should consider whether to give credit for time spent on bail.

Judicial discretion and independence

The Appeal Division has on numerous occasions stressed the desirability of the Sentencing Court retaining judicial discretion in respect of sentencing. See for example the Appeal Division judgment delivered on 24 March 2005 in R v Caldwell-Camp 2003-05 MLR 505. The Sentencing Court should have flexibility to impose the right sentence. The Sentencing Court is exercising a judicial discretion and judicial independence must be respected and maintained throughout and after the sentencing process. If the prosecution or defence are aggrieved with the sentence imposed by the Sentencing Court at first instance there are mechanisms whereby the sentence can be referred to the Appeal Division for review.

Although there may be sentencing guidance it is for the Sentencing Court to consider all relevant facts and decide what is the appropriate sentence for that particular case taking into account relevant details of the offender, the offence, the victim and the particular situation.

Frequently asked questions about sentences

Why is discount given? Is there a scale?

When considering sentence the Sentencing Court will decide what is the “starting point”, that is “What would the appropriate sentence be if the offender had been convicted of this offence after trial and before any mitigation is considered?” Once that “starting point” has been arrived at the Sentencing Court will consider the mitigating factors and decide what discount is appropriate. A discount is given to reflect such things as co-operation with the police, a guilty plea having been entered to the offence at an early stage, so saving police and court time and giving reassurance to any victim. If such credit was not given there would be no incentive for offenders to co-operate, plead guilty or to demonstrate their remorse.

Why are offenders let out of prison early?

If a Sentencing Court sentences an offender to custody it decides the length of the custodial sentence. However the time spent in prison is just part of the sentence, the rest is spent in the community. This assists with the management of the offender both in prison and in the community. Depending upon the length of the sentence there may be a period of licence imposed during which the offender will be supervised by a probation officer, any breach of the conditions of his licence or any further offending whilst on licence may result in the offender being returned to custody. The Sentencing Court has no control over the actual time spent in prison as such is governed by the provisions of the Custody Act 1995.

Why doesn’t a life sentence mean life?

If an offender is sentenced to a life sentence they will serve a term in prison, called a “tariff” (for example 25 years) which is the minimum time the offender serves in prison before consideration is given to the offender being released on licence. Subject to risk assessment an offender may be released on licence which means that they are subject to certain conditions and they can be sent back to prison at any time if they break any of the conditions. These conditions apply for the rest of their life.

Some offenders do receive a whole life tariff which means that they will spend the rest of their life in prison.

Why doesn’t the sentence reflect the seriousness of the crime?

This question suggests a subjective view sometimes expressed without full knowledge of all the relevant information presented to the Sentencing Court. The Sentencing Court however considers all of the facts, in particular the culpability of the offender and the amount of harm caused to the victim. The Sentencing Court considers all the factors that make the offence more serious and all the factors that make it less serious. The Sentencing Court considers all the relevant information including all aggravating and mitigating factors and imposes the sentence it determines appropriate which reflects, amongst other matters, the seriousness of the crime.

Why aren’t offenders always sent to prison?

Some offenders rightly deserve an immediate prison sentence, but prison sentences are not appropriate or available for every crime and many can be better dealt with in other ways.

Victims don’t always seem to be considered enough in sentencing – why is that?

The Sentencing Court does consider the victim and the impact of the offending behaviour on the victim. The effect of the offending behaviour on the victim is an important factor for the Sentencing Court to have regard to in arriving at the decision as to the appropriate sentence.

There is no express statutory reference in Manx legislation to victim impact statements. The Sentencing Court does regularly have regard to statements from victims and the Sentencing Court is acutely conscious of the impact of offending behaviour on victims and the community generally. It is not however appropriate to permit the victim or indeed the defendant or others unduly to influence the sentencing process or to dictate to the Sentencing Court the sentence which should be imposed.

Other information also available:

There is other information available including

• Offence specific legislation which sets out sentencing parameters which is available in hard copy and also online (http://www.legislation.gov.im/cms/en/)

• Judgments of the Sentencing Court which are available in the Manx Law Reports and also on-line (http://www.judgments.im)

• Judgments of the Appeal Division which are available in the Manx Law Reports and also on-line (http://www.judgments.im)

• ‘Manx Criminal Law and Procedure’ by His Honour Deemster Doyle published in 2010 which provides information with regards to both sentencing principles and application.

Caveat

These notes are provided simply by way of information only. Court administration is not permitted to give legal advice. If you wish to receive professional advice as to sentencing in Manx Criminal Courts you should seek advice from a duly qualified and appropriately experienced Manx advocate. A list of the names of Manx advocates may be accessed at www.iomlawsociety.co.im (telephone number 679232).

If you are a victim you may, if appropriate, wish to contact Victim Support Isle of Man at www.victimsupport.im (telephone number 679950).