Monday, November 17, 2014

Sentencing and Public Opinion

Sentencers nowadays are obliged to follow the omnipresent Sentencing Guidelines, and on the whole that is what happens, although there are a couple of work-rounds available to the imaginative sentencer. Sometimes, though, there is a crime that attracts particular public anger, from recent appalling murders to, at the lower level, the case of the man who urinated on a war memorial, or the chap on my patch who stole the floral tributes left at the scene of s fatal car crash.

Recently I saw a man who stole a poppy collecting tin from a shop (with exquisite taste he did it on November 11th). He pleaded not guilty, so he will come back for trial in a few weeks. In the guidelines it is just a petty theft. If he is convicted someone (not me!) will have to sentence him for a £15 impulsive theft. What would you give him?

27 comments:

  1. Previous good character? Conditional discharge, disgrace is punishment enough. Otherwise, immediate custodial sentence, 3 months.

    Machiii

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  2. A spell in the trenches.

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  3. Some restorative justice - public apology to veterans and a fine etc.

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  4. A good flogging. Or a good ticking off, maybe a fine or something.

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  5. Don't you mean "allegedly stole"?

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  6. Don't forget the victims' fine... !

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  7. Wouldn't you rather sentence a bankster, or a few hundred of them?

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  8. Front page in all newspapers. There's nothing like public humiliation when the whole country recognises him wherever he goes.

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  9. Were the trial to be effective (i.e. if the CPS for once get their ducks in a row, and manage in particular to disclose their evidence in time for the trial, get their witnesses to the right court on the right day, and have a prosecutor present on the day too), and if the chap were to be found guilty, then I do actually think a restorative justice disposal would be entirely appropriate. Sadly, since he's not in a Thames Valley court, that is not something that is open to either the magistrates' court or even the Crown Court, except perhaps by way of a convoluted deferred sentence.

    When someone has done something that they know is really low, as it is alleged this chap has, then my experience is that the last thing they want is to be confronted with the impact of their actions, especially where emotional distress is involved. Many a time have I heard cowards beg to be sent down rather than have to face their victim, with their advocates trying to convince them to take the RJ route (which requires consent, as a precondition for a meaningful restorative process).

    P.S. This is a rather good reminder of why it is utterly inappropriate to wear poppies, of whatever colour, or cornflowers ("le bleuet" being the French equivalent of our poppy) in court. British Legion collecting tins regularly get nicked at this time of the year, and other outrages perpetrated (as Bystander reminds us). Anyone sentenced by a judge or bench sporting a poppy would have very good reason to appeal his/her sentence in such circumstances. That is why the judiciary are prohibited from wearing any distinguishing badge, emblem or ensignia that might denote membership of or support for a particular cause, club, association or movement. Club ties, pins of all sorts, in short anything that is not called for by the judge's faith or religion, are not to be worn by any member of the judiciary, including magistrates, and rightly so. This is something that occasionally causes a little heat, but is really rather simple if one stops and thinks. If Lord Hoffman's support for Amnesty International was enough for Pinochet's lawyers to get him removed, how much more obvious is the display of a poppy on the bench? Immediately out of court and in civilian mode again, no problem of course, but not on the bench.

    Kate Caveat

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    1. An excellent comment on the old badge wearing argument. It sums up the inappropriateness of badges/insignia etc in court.

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  10. I wouldn't cut off his right hand just a finger or two . If this was a first time offence.

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  11. A tag this time of year is always a good standby. It really ruins the usual nights of drink and debauchery.

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  12. The "floral tributes" case is interesting. They are generally set up without formal permission or paperwork. They could even be deemed littering, or criminal damage if physically attached to street furniture. People who leave them rarely come back to collect them and eventually the local council clears them away. Most councils have some policy along the lines of leave in place while it appears that the display is being tended then remove.

    So at some point the floral display becomes abandoned property under common law and can lawfully be taken by any person - hence the legal entitlement of the council to dispose of the display.

    So if a person takes a flower how does one determine if it was before or after it became "abandoned"?

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  13. In fact, as Bystander knows, magistrates are not 'obliged' to follow the guidelines. Magistrates are only obliged to refer to the guidelines - there is a world of difference.

    The title of the blog includes the words 'Public Opinion'. This suggests that this might be a consideration when sentencing. It's easy enough to imagine that the public would feel outraged at such a crime, more so especially as it occurred on the 11th of the month. They might well expect that such a crime would be deserving of greater punishment than would normally apply for a theft of £15.00.

    The reality is that public opinion cannot be allowed to influence sentencing. The sentence must fit the crime, with all its attendant aggravating & mitigating circumstances and also take account of offender factors, where same may have a bearing. Of course it is an unpleasant theft and words to that effect would surely be appropriate when delivering the sentence.

    All above of course relates to an allegation of theft. It remains to be proven therefore the defendant is innocent at this juncture.

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    1. "In fact, as Bystander knows, magistrates are not 'obliged' to follow the guidelines. Magistrates are only obliged to refer to the guidelines - there is a world of difference"

      providing they give reasons for departing from the guidelines.

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  14. This offence though for such a small value has a huge social effect. Anyone doing tricks like this should expect no mercy and as part of the sentencing deterent has to be a factor. The hurt and upset to ordinary members of the public must be a factor too. It's like stealing from a poor box or tacking flowers off a grave. 3 months seems fair to me, followed by flogging within an inch of his life

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  15. Outraging Public Decency is a common law offence, I'm not sure what the sentencing guidelines have to say on the matter...

    As to the petty theft charge, a community sentence of some sort to reflect the fact that it is the public confidence in society that has been inured, rather than the simple loss of £15, which I presume would have been recovered somewhere along the line.

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    1. Outraging Public Decency cannot apply in a case of theft. The offence is theft and that is how it is charged. The common law offence of Outraging Public Decency requires 2 conditions; firstly that the act was lewd and, secondly, that the act occurred in a public place.

      The nature of the alleged offence may well cause outrage but the act was not lewd. It is simple theft.

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  16. It is interesting to read several of the somewhat backwards suggestions for punishment (e.g. "I wouldn't cut off his right hand just a finger or two", "A good flogging") in the context of remembering a war against a brutally repressive and violent regime that was at least in part caused by the same archaic approach to punishment of Germany at the end of the first world war as is being intimated at. I'm sure the many thousands who died would be proud that they fought to preserve a society in which such childish punishments are suggested as appropriate for a perceived slight to their memory.

    It seems to me obvious that this was not an act of political defiance or a deliberate attempt to cause deep offence to the wider public, rather the act of a desperate individual who spotted an easy opportunity to fund their drug addiction/next meal/whatever. To sentence it as anything other than what it is, the opportunistic theft of £15, would surely be grossly unfair and an affront to the memory that is alleged to have been insulted.

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    1. "J" for joke!!!

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    2. Actually corporal punishment was never the issue with Germany, it was crimes against humanity and war crimes. Corporal punishment is more useful than a short prison sentence in petty cases. It's only bleeding-hearts that got it banned. Case in point is the Isle of Man. Birching was only banned because of lefties in the UK forcing it through with an Order in Council after the Manx people had stated their democratic will. Corporal punishment works, a few weeks in prison doesn't, and the sooner the whining lefties realise that the better for all of us.

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    3. Would be delighted to see the studies that support your assertion that corporal punishment works.

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  17. My comments have not appeared the last three times I have entered them. Have I done something wrong.
    John Gibson

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  18. I never speculate on sentences without hearing all the facts and mitigation. Clearly the sentence will be rather different for a serial thief than for, say, an ex-soldier suffering PTSD with no previous convictions, who's benefit payments had not come through and was planning to use the money for food. That is not to say that either is right, but clearly one is much more likely to be treated leniently.

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  19. I suppose it depends on whether you consider the whole greater than the sum of its parts; did he steal 15 quid or did he rob from a charity to help ex-servicemen?
    Look at it this way, if someone nicks a Picasso and destroys it, has he destroyed a priceless work of art or has he destroyed 20 quids worth of canvas and paint?
    Whole greater than the sum of the parts, drop on him like a ton of brick.

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  20. Deportation - preferably to a country who remove bits for theft

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