The Art of Sentencing

Despite the best efforts of our legislators some sentencing tasks remain more of an art than a science. There are a few easy sentences. For example, with a case of speeding or of driving with excess alcohol we have a nice clear number to work with. The higher the speed or the reading, the higher the penalty. Easy, simple sentencing. Matters become much more complicated once we pass the threshold of a community penalty, or travel upscale to the custody level. Pre-sentence reports are a requirement in these cases, and these will often reveal unexpected snags. For example, something too serious for a fine might fall into the area of a community order with an unpaid work requirement. If, however, the defendant is on incapacity benefit, the unpaid work is out, for health and safety reasons. So we might, in our quest for a punishment-oriented option, look at a curfew order - but in our minds may be the thought that if this person rarely if ever goes out, that is no punishment at all.

Another problem can arise with programme requirements, such as drug or alcohol treatment, anger management, or domestic violence offender programmes, which often have a waiting list, and are held over a period of time, forcing us to make the order longer than we would otherwise like.

We dealt with a child-pornography case in which the custody threshold was just passed, but in which we felt able to suspend the prison sentence. The longest Suspended Sentence Order (i.e. one where we can impose additional requirements) that we are able to make is two years. Unfortunately the Internet Sex-Offender programme requires 36 attendances at monthly intervals, so we were forced to abandon the suspended sentence to allow for an order long enough to accommodate the programme. So we ended up under-sentencing the case, because we thought that it was important for the defendant to go on the programme.