Penitence and Persistence: How Should Sentencing Factors Interact?

Abstract

The English sentencing guidelines list multiple factors for judges to take into account at different steps to determine the appropriate sentence. Some of these factors aggravate the seriousness of the offence, whilst others mitigate its seriousness; additional factors are to be taken into account in personal mitigation. The idea that aggravating factors should increase the severity of the offender’s punishment and that mitigating factors do the opposite is straightforward. However, aside from the guilty plea discount (Sentencing Guidelines Council, 2007), there is no direction in the guidelines (and few attempts in the sentencing literature) to suggest how factors should be weighted or how they may interact (see Roberts, 2011).¹ The only distinction in the guidelines is between factors taken into account at step one (when determining the offence category) and factors considered at step two, which serve to modify the assessment of overall seriousness within the range of the offence category. In the new format guidelines, judges are instructed as follows:²

The table below contains a non-exhaustive list of additional factual elements providing the context of the offence and factors relating to the offender. Identify whether any combination of these, or other relevant factors, should result in an upward or downward adjustment from the starting point. In some cases, having considered these factors, it may be appropriate to move outside the identified category range.