Sentencing is far from an easy task. The sentencer must apply all the relevant law (e.g. Part 12 of the Criminal Justice Act 2003 and Part 4 of the Coroners and Justice Act 2009). In particular,
the sentencer must consider: the sentencing objectives (Criminal Justice Act 2003 s.142); allowance for guilty plea (CJA 2003 s.144); general restrictions on custodial sentences (CJA 2003 s.152); pre-sentence reports (CJA 2003 s.156); and the duty to explain the sentence (CJA 2003 s. 174). Furthermore, sentencing guidance must be followed (Coroners and Justice Act 2009 s.125) unless the court is satisfied that it would be contrary to the interests of justice to do so and, if so, the reasons for departure from the guidelines must be stated in open court - as required by the CJA 2003 s.174(2) aa.
Sentencing in the Magistrates' Court for Common assault
Sentencing guidance for common assault is in the Magistrates' Courts Sentencing Guidelines at page 213. There is a 9 step approach:
Step 1 - the court decides the "Offence Category." This depends on an assessment of harm and culpability. ONLY the factors set out on page 214 may be considered. The offence must be allocated to one of 3 categories where Category 1 is a combination of greater harm and greater culpability, Category 2 is Greater harm with lower culpability and 3 is lesser harm with lower culpability. [Query: Should there not be a 4th category of lesser harm with higher culpability?] Let us take, for the purposes of this exercise, a Category 2 case.
Step 2 - The court now looks at the sentencing starting point and the sentencing range. For Offence Category 2, the starting point is a medium level community order with a range of Band A fine to High Level Community Order. [Only if the offence were Category 1 does the range include imprisonment]. Factors in the guidance state what makes an offence either more serious or less serious and there are factors reflecting personal mitigation.
Factors making the offence more serious include: previous convictions (though the period of time since the conviction is relevant), location of the offence, the timing of the offence, the effect on the victim, the fact that the victim is providing a service to the public, the presence of other people. Factors making the offence less serious include a single blow and personal mitigation includes matters such as whether the defendant is a sole carer for another.
It is fairly obvious that a number of the "more serious" factors are present when an assault is of a teacher at a school. Assuming our Category 2 offence, the case will be at the higher end of the sentencing range - i.e. high level community order.
Step 3 - Factors which indicate a reduction, such as assistance to the prosecution - The court should take into account any rule of law by virtue of which an offender may receive a discounted sentence in consequence of assistance given (or offered) to the prosecutor or investigator. Not relevant to our offender.
Step 4 - Reduction for guilty pleas - The court should take account of any potential reduction for a guilty plea in accordance with section 144 of the Criminal Justice Act 2003 and the Guilty Plea guideline. Our offender was found guilty after trial.
Step 5 - Dangerousness - not relevant to our offender
Step 6 - Totality principle - If sentencing an offender for more than one offence, or where the offender is already serving a sentence, consider whether the total sentence is just and proportionate to the offending behaviour. Not relevant to our offender.
Step 7 - Compensation and ancillary orders - In all cases, the court should consider whether to make compensation and/or other ancillary orders. Our offender has reasonable means and could pay compensation and costs. Available monies should be applied first to compensation and then to costs.
Step 8 - Reasons - Section 174 of the Criminal Justice Act 2003 imposes a duty to give reasons for, and explain the effect of, the sentence.
Step 9 - Consideration for remand time - not relevant here
Hence, on the basis of these guidelines, our offender is to receive a high level community order plus an order to pay compensation and an order to pay costs.
Had it been possible to place the offence in Category 1 (greater harm and higher culpability) then imprisonment might have been much more likely.
Guidelines are not tramlines?
The guidelines are NOT tramlines even if, recently, the scope for divergence has been narrowed.
Courts may depart from guidelines if satisfied that it would be contrary to the interests of justice to follow them. In that event, the reasons for departure from the guidelines must be stated in open court - as required by the CJA 2003 s.174(2) aa. In a case of assaults on teachers at schools, it might well be possible to argue that, even if the guidance leads to a high level community order in the particular case, imprisonment could be justified on deterrence grounds.
On the basis of what we know, Stratford may well have deserved to hear the clang of the prison gates but we must bear in mind that there may have been other factors of which we are unaware. The courts are bound by guidelines set out by the Sentencing Council and are mandated by statute to apply them unless there is good reason, in the interests of justice, to depart from them. In that event, the reasons must be stated in open court. Critics of the sentence should perhaps focus their attention on the guidelines.